8. Resolution of the City Council of the City of Livingston Adopting Guidelines for the Submission and Tabulation of Protests Pursuant to Article XIIID of the California Constitution (Proposition 218).

Note from TheGardeningSnail. Part of this page was produced by bouncing a PDF file through a program that converts image to text. So my apologies in advance for any goofs, gaffs, and textual gremlins that may have crept in. ;-p

Meeting Date: January 15, 2013

Agenda Item # 8. Resolution of the City Council of the City of Livingston Adopting Guidelines for the Submission and Tabulation of Protests Pursuant to Article XIIID of the California Constitution (Proposition 218).

STAFF REPORT

AGENDA ITEM: Resolution of the City Council of Livingston Adopting Guidelines for the Submission and Tabulation of Protests Pursuant to Article XIIID of the California Constitution (Proposition 218).

MEETING DATE: January 15, 2013

PREPARED BY: Jose Antonio Ramirez, City Manager, Jose M. Sanchez, City Attorney

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REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMEND ACTION:

Staff recommends that the City Council:

Adopt Resolution 2013- _, adopting guidelines for the submission and tabulation of protests pursuant to Article X Ill D of the California Constitution (Proposition218).

BACKGROUND AND DISCUSSION:

Proposition 218, adopted in 1996, requires the City to give 45 days’ notice, conduct a public hearing, and provide an opportunity for written protests before imposing or increasing rates for property related services, such as water and sewer rates.

Proposition 218 and its implementing act, the Proposition 218 Omnibus Implementation Act of 1997, provide less than clear guidance as to how protests are to be submitted to the City and how the City is to count them. Accordingly, staff recommends that the City Council adopt the attached resolution to fill in the gaps in the law.

The proposed procedure addresses two primary issues: the submittal of protests and the tabulation of protests. The proposed procedure is consistent with the requirements of Proposition 218 and its implementing act.

Submittal of Protests

The procedure requires that protests be in writing, signed by a prope1ty owner or tenant, and received by the City Clerk prior to the close of the public hearing on the proposed fee increase. Protests must identify the property in order to allow the City to determine if protests have been received from a majority of the properties served by the City.

The standard for determining whether a majority protest has occurred pursuant to Proposition 218 is "a majority of owners of the identified parcels." (Cal. Const. Art. XIII D, Sec. 6.) This has been consistently interpreted by agencies throughout the state to mean the owners of a majority of the parcels.

In other words: one parcel, one vote. It would not make sense to interpret the law to give more "votes" to a property with multiple owners.

Although not tied to any language in Proposition 218, Government Code section 53755(b) provides, in part, that protests filed by "tenants" of a parcel "shall be counted in calculating a majority protest to a proposed new or increased fee … subject to the requirements of Section 6 of Article XIII D of the California Constitution." The proposed procedures have been drafted in a manner that would allow both tenants and landlord property owners to have a voice in the matter, while retaining the "one parcel, one vote" interpretation of the California Constitution.

Thus, the proposed procedures provide that either a landlord owner or a tenant may protest the fee, but that only one vote will be counted for each parcel. It would not be practical to divide a protest among the tenants and owners of a common property.

Although the Legislature has provided no guidance for how fee protests should be treated with respect to whether they are public records or not, it has declared that assessment ballots are confidential until tabulated, and are public records thereafter. The proposed procedure would apply similarly to fee protests.

Tabulation of Protests

The procedure tasks the Deputy City Clerk with the duty of tabulating protests. A valid protest must identify a property subject to the fee in question, be signed by a properly owner or tenant, state its opposition to the fee in question, be received before the close of the hearing, and not be withdrawn by the person who submitted it. The Clerk’s determination of the validity of a protest is final, though subject to judicial review. Staff feels that the cost and delay of an internal appeal of these decisions would not be justified.

Subsequent Actions

If adopted, future rate increases would be conducted pursuant to the procedures described in the attached Resolution. The City Council can always amend the Resolution at a later date.

ATTACHMENTS:

I. Resolution 2013-_, of the City Council of Livingston Adopting Guidelines for the Submission and Tabulation of Protests Pursuant to Article XIIID of the California Constitution (Proposition 218)

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