Prop 218 Archives

“To sin by silence, when they should protest, makes cowards of men.”

—Ella Wheeler Wilcox

Decisions made by past and present City Councils led to Ventura Water increasing water rates by 7% and wastewater rates by 6% for each year over the next four years. Extrapolated out, the water rate increase for the “average” ratepayer will grow 43% during that time.

The current City Council and Ventura Water want to convince you we need the increases. They began the process by including a brochure in your latest water bill explaining why they propose increasing rates.

If You Don’t Protest, You Vote “Yes” Automatically

Ventura is obliged under Proposition 218 to allow ratepayers to protest the rate increases. Yet, Ventura Water doesn’t make it easy to do so. The protest form is intentionally challenging to locate. In the 8-page Ventura Water ‘Proposed Rate Adjustments’ document, Ventura Water buries the protest procedure on the last page. It is not bolded or highlighted to stand out to the reader. The protest format is not user-friendly. There is little explanation on how to complete the form, making it confusing to property owners.

VREG has written before about how unfair filing a protest under Prop 218 is in Ventura. While Ventura does what is minimally required to be legal, the way objections are structured limits public complaints and makes it nearly impossible for voters to overturn any rate increase. In no way does Ventura’s protest procedure truly measure the public’s intent to tax themselves further.

The notice explains that the city will hold public hearings on April 19, 2021 and April 28, 2021.

If you oppose this increase, Ventura Water’s notice states that the parcel owner, or customer of record on the water bill, must file a written protest with the City Clerk at City Hall.

Where To Get Your Rate Increase Protest Form

The City did not enclose a protest form with the rate increase notice. Instead, the brochure directs you to go online. You can find the Water Shortage Rate Protest form here. You can complete the form online, but you must print it for it to count.

Written protests may be submitted by mail to the Ventura City Clerk’s Office at 501 Poli Street (Room 204) Ventura, California 93001, or in person at the drop box near the back entrance of City Hall at 501 Poli Street, Ventura, California 93001 (parking lot behind City Hall). City Hall is currently closed to the public due to the novel coronavirus (COVID-19) pandemic. All mailed written protests must be received (not postmarked) by the City Clerk no later than May 17, 2021, at 5:00 pm.

To prevent the rate increase, most property owners (51%) must file a protest. Renters have no right to protest. Business owners have no right to protest. Only the 32,000 people that own property with water meters have a right to vote. The remaining 81,000 people in the City of Ventura are effectively disenfranchised. They have no vote but will have to pay.

Why Is Ventura Raising Rates?

Ventura Water Department justifies the rate increase by saying we must “control our water and wastewater,” and Ventura Water does not “trust” other agencies to help do that.

Instead, Ventura Water plans to build a $240 million wastewater treatment plant that will duplicate facilities that already exist near Ventura. The 2019 Corollo Report (commissioned by Ventura Water), titled Ventura Water Supply Projects and Alternatives, states that if Ventura Water utilizes the United Water Conservation and the Oxnard Water Treatment Plant, they would not need to build a separate treatment plant. The cost savings to Ventura ratepayers could be enormous.

Ventura Water neglects to mention that Ventura Water must rely on and co-exist with outside agencies like United Water and Casitas Water already. Also, soon Ventura Water will be working with the management of the State Water project to deliver water to the city.

The ‘lack of control and trust’ Ventura Water purports to be why it’s not cooperating with other water agencies is absurd. It’s already working with several other agencies and depends upon many other outside agencies for water resources.

The Unspoken Motivation Behind The New Plant

This City Council, and past ones, has accepted Ventura Water Department’s recommendations for a new processing plant called VenturaWaterPure without profound skepticism. Ventura Water has a massive conflict of interest (getting a new facility built and employing another 27 employees – Corollo Report 2019). Yet, the City Council seems oblivious. People may deny it, but governments measure their success in part by budget and staff size. Why would anyone think that the Ventura Water Department is any different?

Why Is The City Council Reluctant To Change?

The City Council fears that any redirection from building their facility will delay complying with the Wishtoyo Consent Agreement and result in substantial legal penalties. By extending the Consent Agreement deadline and utilizing the existing facilities at United and Oxnard, Ventura could produce a faster result.

Editors Comments On The Rate Increases

If we continue down this path, Ventura ratepayers will pay more than may be needed. Ventura Water has put the price tag on “control” and “trust.” It’s $200 million.

We’ve said repeatedly, at the very least, the Ventura City Council should:

Call for an accurate, independent, cost analysis that could result in potential savings of $200 million
Delay any rate increase to Wastewater rates
Direct the City attorney to apply for a deadline extension on the Wishtoyo Consent Agreement to provide more time to find the optimal solution while avoiding substantial legal penalties
Open negations with United Water and the City of Oxnard to utilize a wastewater treatment process.

Our current path is misguided and needs reevaluation. Whenever a financial decision boils down to “control,” the issue is power and prestige, not what’s best for the public.

Protest Your City Councilmembers’ Water Rate Increase

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“I have never understood why it is ‘greed’ to want to keep the money you’ve earned, but not greed to want to take somebody else’s money.”

—Thomas Jefferson

Ventura Water will push the boundaries of the law as it tries to use Proposition 218 to raise money to meet the Wishtoya Foundation Consent Decree.

In the next 12 months, Ventura Water will ask the City Council to increase water rates for 30 wastewater projects and 28 water projects by 2024. These costly projects will benefit some property owners. Other projects will help the community at large.

As of June 30, 2018, Ventura Water accumulated $115,000,000 for projects they planned to build between 2012-2018. Still, they need $449,586,000 more before 2024. How did we commit to spending almost $450 million, and why weren’t you asked to vote on it?

WHAT WILL THIS COST YOU?

These new rate increases will come on top of the increases imposed over the last six years. In 2012, Ventura Water wanted to increase rates to:

Replacing aging pipelines and facilities
Building projects to improve water quality
Constructing new groundwater wells

In 2012 the average homeowner and family of 4, received a bi-monthly bill of $73.27 and sewer charges of $72.45 for a total of $145.72. That same family is paying $105.03 for water in 2018. Add sewer charges of $104.64 and their total bill is $209.67. This is a 43% increase over the 2012 rates.

From 2018-2024, expect a similar rate of growth. Your new water bill may look like this:

HOW DID WE GET INTO THIS SITUATION?

In March 2012, the Ventura City Council signed a Consent Decree that requires Ventura Water to stop putting 100% of its treated wastewater into the Santa Clara River estuary by January 2025. The decree stems from a Federal complaint filed by Wishtoya Foundation. Former City Manager, Rick Cole and Ventura Water General Manager, Shana Epstein, signed the consent decree on behalf of the city. The city no longer employs either of them.

Keep in mind that voters had no voice in the City Council consenting to the decree in 2012. Now, Ventura Water wants to deny voters the chance to say how we spend the money to meet the order, too. It plans to use Proposition 218 to get those funds.

HOW AND WHY CAN VENTURA INCREASE MY RATES?

So how can Ventura Water impose such large fees against its citizens without the traditional right to vote on such matters? The answer lies in how Ventura implements Proposition 218. Approved by the voters in 1996, Proposition 218 allows Ventura to raise money in one of three ways:

General taxes. Those taxes used for general governmental purposes. Prop 218 requires the traditional voting procedure, notice, a ballot and an election measure. 51% of the voters must approve it. Ventura’s Measure O sales tax was one such example.
Special Taxes. Any tax imposed for specific purposes and placed in a general fund. A Special Tax requires a 2/3 (66.67%) majority vote. The City sought this type of tax in 2009. It was Measure A on the ballot. It was a 1/2 cent sales tax for public safety and other specific projects. Monies would have been placed in the city’s General Fund. It failed.
Special Assessments, Fees and Charges. Fees or charges means an assessment imposed as an incident of owning property which receives a unique benefit. The city can only impose such fees by affirmative voter approval. The exception being that prior voter approval is not required for “any assessment imposed exclusively to finance capital costs or maintenance and operation expenses for sidewalks, streets, sewers, water…”

VENTURA WATER TURNS A NON-VOTE INTO A YES VOTE

Ventura wants to use option C, Special Assessments, Fees and Charges to impose higher water rates.

Here’s how they’ll do it. Instead of putting it on the ballot, Ventura Water sends a water bill. Somewhere in the body of that bill, it tells you why the rate increase is necessary. You may dispute the rate increase by voting “NO” within 45 days, but the process is cumbersome. To disagree, you must download a protest form, complete and mail it or take it to City Hall by a specific date. Fail to jump over those hurdles and the City doesn’t care what you think or want. If 51% of the ratepayers have not voted ‘NO,’ that is the end of the matter. There are 32,000 ratepayers. Sixteen thousand one must vote NO to defeat an increase.

Proposition 218, now Article XIII C and D of the California Constitution, made the following findings:

“The people of the State of California hereby find and declare that Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases. However, local governments have subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate the purposes of voter approval for tax increases but also threaten the economic security of all Californians…This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.”

When the City sought the last rate increase they took the position that they had the right to raise the rates without prior voter approval. They believed the procedures they followed were consistent with Prop 218 language, as interpreted by the California Supreme Court. They maintain that they “may raise other fees or impose new fees without prior voter approval” for anything they chose to label a water or wastewater project.

But it doesn’t end with this interpretation alone. A California Supreme Court challenge goes further.

TESTED IN THE COURTS

The California Supreme Court in Bighorn-Desert View Water Agency v. Verjil (2006)39 Cal.4th 205, at page 205, addressed the question of whether voters had the right to put an initiative on the ballot to reduce water rates. The court ruled in favor of the water agency and interpreted Prop 218’s language to mean a city “may raise other fees or impose new fees without prior voter approval.” The Court’s decision was specific. It didn’t involve the question of whether imposing fees to deal with a Consent Decree are valid.

Notwithstanding the protective measures of Prop 218, the City of Ventura conveniently interprets Prop 218 to still impose fees and charges beyond the simple costs of service to the homeowner. However, the court never went that far.

The City of Ventura’s interpretation of Proposition 218 is overreaching when it comes to any matter about water, wastewater and related environmental projects.

That decision by the Supreme Court only involved the issue of water delivery through a pipeline and whether voters could use an initiative process to require prior voter approval for the costs of that delivery. It did not involve a question of whether fees imposed to deal with a $500 million water and wastewater projects together with environmental costs, expert studies, attorneys fees and a plethora of expenses arising out of a ConsentDecree decided by a City Council in 2012, and in which the voters had no voice.

What if the costs are not exclusively operational costs? What if the expenditures benefit the entire community, not just ratepayers? Does Proposition 218 apply in those circumstances? Bighorn-Desert View Water Agency v. Verjil does not answer these questions.

No Precedent For What They Plan To Do

In determining whether to seek prior voter approval, we hope that the new City Council will keep in mind the following the language from the Supreme Court in Bighorn case:

“…the agency’s governing board may … raise fees or impose other fees and new fees without prior voter approval. Although this power-sharing arrangement has the potential for conflict, we must presume that both sides will act reasonably and in good faith, and that the political process will eventually lead to compromises that are mutually acceptable and both financially and legally sound.” (Emphasis added).

THE CITY MAY FACE A SERIOUS LEGAL CHALLENGE

If the City is considering rate increase of this magnitude without prior voter approval they should be mindful of the language in Prop 218. It provides that “in any legal action contesting the validity of an assessment, the burden is on the agency (Ventura Water) to demonstrate that the …properties in question receive a special benefit over the benefits conferred on the public at large…”

Complying with the Consent Decree by not putting wastewater into the Santa Clara River benefits all citizens, not just ratepayers.

Editor’s Comments

Ventura Water is proposing a mix of costly projects. Some will benefit property owners, and some will help the community at large. Building a pipeline and related infrastructure to import state water at the cost of $50 million benefits all property owners. Ratepayers generally accept this. Spending beyond that to build projects to satisfy a federal judgment on the Santa Clara Estuary to protect the ecology of the estuary is a problem.

Proposition 218 may not cover projects to meet a federal judgment on the Santa Clara Estuary to protect the ecology. We recommend a vote of the citizens in that instance.

Warn The City Council Of Ventura Water’s Potential Error