2005/08/23 City Council MinutesCITY OF ROHNERT PARK CONCURRENT MEETINGS MINUTES for:
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
ROHNERT PARK FINANCING AUTHORITY
August 23, 2005
Tuesday
The Concurrent Meetings of the City of Rohnert Park for
the City Council, the Community Development Commission and
the Rohnert Park Financing Authority met this date in
Regular Session for a meeting to commence at 6:00 p.m. at
the Rohnert Park City Hall, 6750 Commerce Boulevard, Rohnert
Park, with Mayor Mackenzie presiding.
CALL TO ORDER /PLEDGE OF ALLEGIANCE:
Mayor Mackenzie CALLED the Council Meeting to order at
6:00 p.m. and led the Pledge of Allegiance.
ROLL CALL:
Present: (5) Councilmembers Breeze, Flores and Smith; Vice
Mayor Vidak- Martinez; Mayor Mackenzie
Absent: (0) None
Staff present for all or part of the Regular Session: City
Manager Donley, Assistant City Attorney Whelan, Director
Public Safety Bullard and Videographer Beltz.
ANNOUNCEMENTS:
1. Federated Indians of Graton Rancheria (FIGR) plans:
Mayor Mackenzie read the contents of the Statement of
the City of Rohnert Park regarding (1) the purchase of
a 90 -acre parcel of land within the City's Urban
Growth Boundary and Sphere -of- Influence by Station
Casinos behalf of FIGR, and (2) the lack of receipt by
the City of a formal notification of change in
ownership and planned land -use changes for said parcel.
Said Press Release is ATTACHED TO THE ORIGINAL SET OF
MINUTES. Mayor Mackenzie added that the City's
statement was reviewed by City Attorney Kenyon. The
Mayor noted that FIGR's attorney, John Maier, has
notified the City of FIGR's intent to file a
supplemental notice regarding this matter. The Mayor
also stated that the Council will not agendize said
issue until the City receives formal notification
regarding the change in ownership and proposed land -
use changes.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(2 )
2. Sonoma State University (SSU) plans: Mayor Mackenzie _
announced that the City has not been formally notified
of proposed plans by SSU to construct houses on land
in the Northeast corner of the City. He noted that
said project would be subject to a California
Environmental Quality Act (CEQA) review.
1. SCHEDULED APPEARANCES /PRESENTATIONS:
1. Seamus Seanachaoi regarding mixed -use, low - income
housing, parks, gang activity and tax - dollar
allocation: Mr. Seanachaoi expressed the reasons for
his concern that the City Council is too
preoccupied with developers and theoretical planning
fads such as in -fill and mixed development, low - income
housing and Green Building Guidelines, rather than
the needs of the average citizen. He urged Council
to focus more on the City's gang problems, nuisance
abatement in A and B Sections and neighborhood parks
and creeks.
2. UNSCHEDULED PUBLIC APPEARANCES/COMMENTS:
1. Susan Adams, 5758 Davis Circle, was recognized and read
from written comments ATTACHED TO THE ORIGINAL SET OF
MINUTES. She noted FIGR's plans to develop a resort/
casino inside the City's Urban Growth Boundary, and
she asked Council to place an advisory vote on the
ballot, giving Rohnert Park citizens an opportunity
to weigh in on this important issue.
2. H.R. Downs, P.O. Box 747 -3030, was recognized and
referred Council to a recent letter, ATTACHED TO THE
ORIGINAL SET OF MINUTES, from the O.W.L. Foundation.
He expressed the reasons for his concern regarding a
proposed casino within City limits, which would have
federal water rights. He explained how the water rights
of every stakeholder in Sonoma County are at risk if the
City permits a casino with federal water rights to be
established in an area of proven groundwater overdraft,
and he urged the Council to wait for the litigation over
the Water Supply Assessment (WSA) to be resolved before
taking any action in this matter.
*City Council /Community Development Commission /
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(3 )
3. Greg Nordin, Rohnert Park, was recognized and shared
written comments, ATTACHED TO THE ORIGINAL SET OF
MINUTES, regarding his concern about Mayor Mackenzie's
creation of ad hoc committees and their ability to
represent the interests of the City's taxpayers. In
particular, he discussed his concerns about the SSU
Ad Hoc Committee and how SSU's plans to develop an open
space area will cost the City's taxpayers. He urged
the Mayor to see to it that the Council firmly negotiates
with SSU per this proposed development project and that
the community gets a chance to examine and discuss it
as well.
4. Chip Worthington, 4695 Snyder Lane, was recognized and
commended the Council for wanting further study and
research before taking any action on casino matters.
He reviewed past legal activity over the proposed
casino, and he suggested that it would be very difficult
to get an urban casino approved. He urged the Council
to get a Community Impact Report (CIR) for any casino
project, and he recommended that the City put more focus
on higher education.
5. Gerard Giudice, 7396 Circle Drive, was recognized and
expressed his opposition to any casino project, while
noting a desire for a more open public process regarding
the proposed new casino site. He also cited several gang
and alcohol /drug problems in C Section parks, and he
asked for Council assistance in cleaning them up.
Furthermore, he encouraged the Council to support Pam
Torliatt for Joe Nation's seat in the Assembly.
6. John Hudson, 399 Bonnie Avenue, was recognized and
reviewed an article from Western City Magazine entitled,
"Legal Notes: Are Utility Fees Subject to
Proposition 218 ?" and ATTACHED TO THE ORIGINAL SET OF
MINUTES. He discussed how Proposition 218 is not met in
the City's recent sewer increase and how the City
provides sewer infrastructure to developers for half the
price by making its citizens pay. He urged the City to
raise its sewer connection fee.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(4 )
3. CONSENT CALENDAR:
Mayor Mackenzie asked if there were any questions about the
matters on the Consent Calendar. Mayor Mackenzie signified
removal of the following items for further discussion: The
Special Joint Meeting on July 13, 2005 and Resolution
No. 2005 -263 per Councilmember Smith's recommendation.
A. APPROVAL OF CITY COUNCIL PORTION OF MEETING MINUTES FOR:
REGULAR MEETINGS - JULY 12, 2005 and JULY 26, 2005
B. APPROVAL OF CITY BILLS /DEMANDS FOR PAYMENT CONCURRENTLY.
FOR:
CITY OF ROHNERT PARK /CITY COUNCIL IN THE AMOUNT OF:
$2,001,554.57
C. RESOLUTIONS FOR ADOPTION:
2005 -261 EXPRESSING CONGRATULATIONS ON A VICTORIOUS SEASON
TO CAL RIPKEN ALL STARS TEAM
2005 -262 EXPRESSING CONGRATULATIONS TO MATT HAUFF FOR TOP
HONORS IN THE RED BULL DRIVER SEARCH AT INFINEON
RACEWAY KARTING COMPETITIONS
2005 -264 APPROVAL OF AGREEMENT WITH GREYSTONE WEST COMPANY
FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE
BURTON AVENUE RECREATION CENTER RE- ROOFING AND
ACCESSIBILITY IMPROVEMENTS PROJECT NO. 2004 -04
2005 -265 APPROVAL OF AGREEMENT WITH GREYSTONE WEST COMPANY
FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE
CALLINAN SPORTS & FITNESS CENTER RE -ROOF PROJECT
NO. 2004 -07
2005 -266 AMENDMENT NO. 1 TO TASK ORDER NO. 2004 -06 WITH
WINZLER & KELLY ENGINEERS FOR CONSTRUCTION SUPPORT
SERVICES FOR THE SEWER FLOW METER REPLACEMENT
PROJECT NO. 2003 -32
2005 -267 APPROVAL OF AGREEMENT FOR ENGINEERING SERVICES FOR
2006 STREET MAINTENANCE PROJECT NO. 2005 -04 WITH
BAECHTEL HUDIS, INC.
2005 -268 APPROVING CONTRACT CHANGE ORDER NO. 1 WITH
ARGONAUT CONSTRUCTORS, INC. FOR VARIOUS STREET
OVERLAYS 2004, PROJECT NO. 2003 -27 FOR $4,786.30
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(5 )
2005 -269 APPROVING CONTRACT CHANGE ORDER NO. 2 WITH
ARGONAUT CONSTRUCTORS, INC. FOR VARIOUS STREET
OVERLAYS 2004, PROJECT NO. 2003 -27 FOR
<$134,089.26>
2005 -270 AGREEMENT WITH SHARP INSPECTION GROUP FOR
INSPECTION OF COMMERCIAL WATER METER REPLACEMENT
PROJECT - PHASE THREE
2005 -271 AUTHORIZING RECLASSIFICATION OF THE POSITION OF
ASSISTANT CITY MANAGER TO HIGHER MANAGEMENT UNIT
SALARY RANGE
2005 -272 AUTHORIZATION FOR THE MAYOR TO SUBMIT THE CITY'S
RESPONSE TO THE GRAND JURY ON BEHALF OF THE CITY
COUNCIL
Upon MOTION by Vice Mayor Vidak- Martinez, seconded by
Councilmember Flores, reading was waived and a motion to
approve the Consent Calendar as outlined in the meeting's
agenda, with the exception of the Special Joint Meeting of
July 13, 2005, as well as Resolution No. 2005 -263, was
UNANIMOUSLY APPROVED.
Items for Consideration:
APPROVAL OF CITY COUNCIL PORTION OF MEETING MINUTES FOR:
SPECIAL JOINT MEETING - JULY 13, 2005
Councilmember Smith expressed a desire to amend the noted
paragraph to include the following dialogue: Page 3, Item
No. 2, "Planning Areas," Item b, "Stadium, City Center,
Agilent Areas." As the second sentence, add the following:
"In response to Councilmember Smith's inquiry regarding any
contractual agreements to annex land in the General Plan,
City Attorney Kenyon stated that there are no such contracts
to date." Upon MOTION by Vice Mayor Vidak- Martinez,
seconded by Councilmember Flores, a motion to approve the
Special Joint Meeting Minutes of July 13, 2005 AS AMENDED
was UNANIMOUSLY APPROVED.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(6 )
2005 -263 REJECTION OF THE CLAIM OF PAUL D. STUTRUD FOR
ALLEGED VIOLATION OF ARTICLE XIII D, SECTION 6 OF
THE CALIFORNIA CONSTITUTION REGARDING SEWER AND
WATER INCREASES
Councilmember Smith shared comments on Proposition 218. In
response to Councilmember Smith's inquiry, Assistant City
Attorney Whelan confirmed that the City's utility accounting
costs are separate and distinct, are collected solely for
the purpose of recovering costs and not monies transferred
to and from the General Fund. Upon MOTION by Councilmember
Smith, seconded by Councilmember Flores, and UNANIMOUSLY
APPROVED, reading was waived and Resolution 2005 -263 was
ADOPTED.
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4. COMMUNICATIONS:
Communications per the attached outline were brought to the
attention of the Councilmembers.
Water Meters /Water Rates: Councilmember Breeze called
Council attention to two letters, from people in Rancho
Grande Mobilehome Park regarding an interest in having
water meters installed and expressing concern about
being charged commercial water rates. Council CONCURRED
TO DIRECT STAFF to REPORT BACK with more information (1)
on providing individual water meters in mobilehome
parks, and (2) on water /sewer rates in mobilehome parks
and apartment complexes.
Recreational Vehicle Parking in Unincorporated Areas: At
the request of Councilmember Flores, Council CONCURRED TO
AGENDIZE for the next Council meeting consideration of a
letter supporting Sonoma County Board of Supervisor Mike
Kerns' proposal on RV parking.
Press Release from FIGR re land sold by Redwood Equities:
Councilmember Smith stated that the General Plan is not
contractual in that it does not supply any specific
rights to developers. Assistant City Attorney Whelan
confirmed that Redwood Equities has not breached any
contract in terms of the sale of land to FIGR. In
response to an inquiry by Mayor Mackenzie, City Manager
Donley stated that the City has not been approached by
Station Casinos regarding their casino plans despite
asking for said plans.
*City Council /Community Development Commission/
Rohnert Park.Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(7 )
Meeting with SSU representatives: Councilmember Smith
noted that the City's SSU Ad Hoc Subcommittee's recent
meeting with SSU was agendized and took place in public.
Vice Mayor Vidak- Martinez noted that she and
Councilmember Smith, as members of the SSU Ad Hoc
Subcommittee, reported out on said meeting as well.
Councilmember Smith commented on aspects of open
government, and he noted his attendance at a recent
breakfast in Santa Rosa regarding education and business,
as well as a conversation with President Arminana of SSU.
Mayor /City Manager meeting with SSU representatives:
Mayor Mackenzie shared comments on how the Councilmembers
faithfully report back to the full Council on the results
of Council committee meetings, and he noted this week's
meeting of City Manager Donley, himself and
representatives from SSU regarding the University's
intention to purchase lands east of the City. He noted
that said meeting was reported, and he added that it
may have been a coincidence that SSU waited until the
same time as FIGR to make their press release.
Creek Stewardship Program for Rohnert Park and Cotati:
Mayor Mackenzie referred to a letter from Mike
Thompson, Chief Engineer of Sonoma County Water Agency
(SCWA), regarding a request for the City to meet with
SCWA to assist with this program. Mayor Mackenzie
REQUESTED TO AGENDIZE for a future Council agenda
consideration of a Staff Report regarding SCWA's request
for the City to work with them to develop a Creek
Stewardship Program. The Mayor also noted that there
will be a Laguna de Santa Rosa Foundation meeting next
month.
5. PUBLIC COMMENTS:
Members of the public desiring to speak were invited.to
come forward. No members of the public responded.
Mayor Mackenzie ADJOURNED the City Council meeting at
6:50 p.m. to consecutively and separately convene the
meetings of the Community Development Commission and the
Rohnert Park Financing Authority.
*City Council /Community Development Commission /
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES a
August 23, 2005 Page(8 )
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COMMUNITY DEVELOPMENT COMMISSION
of the
CITY OF ROHNERT PARK
August 23, 2005
Tuesday
The Meeting of the City of Rohnert Park for the Community
Development Commission (CDC) met this date in Regular
Session commencing at 6:50 p.m. at the Rohnert Park City
Hall, 6750 Commerce Boulevard, Rohnert Park, with
Chairperson Mackenzie presiding.
CALL TO ORDER:
Chairperson Mackenzie CALLED the CDC Meeting to order at
6:50 p.m.
ROLL CALL:
Present: (5) Commissioners Breeze, Flores, Smith and
Vidak- Martinez; Chairperson Mackenzie
Absent: (0) None
Staff present for all or part of the CDC Meeting:
Executive Director Donley, Assistant General Counsel Whelan,
Videographex Beltz and Transcriber Leonard.
UNSCHEDULED PUBLIC APPEARANCES: None.
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CONSENT CALENDAR
Chairperson Mackenzie asked if there were any questions
about matters on the Consent Calendar. No Commissioner
responded.
A. APPROVAL OF CDC PORTION OF CONCURRENT CITY MEETING
MINUTES FOR:
REGULAR MEETINGS - JULY 12, 2005
REGULAR MEETINGS - JULY 26, 2005
B. APPROVAL OF CDC BILLS /DEMANDS FOR PAYMENT:
COMMUNITY DEVELOPMENT COMMISSION IN THE AMOUNT OF:
$59,710.93
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(9 )
Upon MOTION by Commissioner Flores, seconded by Commissioner
Breeze, reading was waived and a motion to approve the CDC
Consent Calendar, as outlined in the meeting's agenda,
was UNANIMOUSLY APPROVED.
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ADJOURNMENT OF CDC MEETING:
There being no further business, Chairperson Mackenzie
adjourned the CDC Meeting at 6:50 p.m.
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ROHNERT PARK FINANCING AUTHORITY
of the
CITY OF ROHNERT PARK
August 23, 2005
Tuesday
The Meeting of the City of Rohnert Park for the Rohnert
Park Financing Authority (RPFA) met this date in Regular
Session commencing at 6:51 p.m. at the Rohnert Park City
Hall, 6750 Commerce Boulevard, Rohnert Park, with
Chairperson Mackenzie presiding.
CALL TO ORDER:
Chairperson Mackenzie CALLED the RPFA Meeting to order at
6:51 p.m.
ROLL CALL:
Present: (5) Members Breeze, Flores, Smith and
Vidak- Martinez; Chairperson Mackenzie
Absent: (0) None
Staff present for all or part of the CDC Meeting:
Executive Director Donley, Assistant General Counsel Whelan,
Videographer Beltz and Transcriber Leonard.
UNSCHEDULED PUBLIC APPEARANCES: None.
CONSENT CALENDAR
Chairperson Mackenzie asked if there were any questions
about matters on the Consent Calendar. No Member
responded.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
August 23, 2005 Page(10)
A. APPROVAL OF RPFA PORTION OF CONCURRENT CITY MEETING
MINUTES FOR:
REGULAR MEETINGS - JULY 12, 2005
REGULAR MEETINGS - JULY 26, 2005
Upon MOTION by Member Smith, seconded by Member Vidak-
Martinez, reading was waived and a motion to approve the
RPFA Consent Calendar, as outlined in the meeting's agenda,
was UNANIMOUSLY APPROVED.
ADJOURNMENT:
There being no further business, Chairperson Mackenzie
adjourned the RPFA Meeting at 6:51 p.m.
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Kdjy,Leonard
Certified Shorthand Reporter
CSR No. 11599
Jake Mackenzie
Mayor
City of Rohnert Park
*City Council /Community Development Commission/
Rohnert Park Financing Authority
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Hon. Mayor Jake Mackenzie
Hon. Vice -Mayor Vicki Vidak - Martinez
Hon. Armando F. Flores
Hon. Tim Smith
Hon. Amie L. Breeze
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Treasurer, Heidi Dieffenbach -Carle R.G
Bonnie Kneibier, M.D..
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Susan Panttaja, R.G.
Ray Peterson
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Honorable Mayor and Ladies and Gentlemen of the City Council;
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I strongly urge you to deny permission to any proposed casino within your city that enjoys federal water rights. g.2
The City of Rohnert Park (the City) has already experienced serious problems with water supplies and is
looking forward to a future of ever- worsening water resources, as outlined in the warnings issued by the United IF
States Department of the Interior (DOI) in 20031. The City continues to operate without a groundwater
management plan, as described in the California Water Code Sections 10750 - 10756, and therefore remains
unprepared for and exposed to the dangerous consequences of severe drought and the eventual decline of
potable water as outlined in the DOI warning.
Overdraft + Super Rights + No Plan = Adjudication
Despite recent attempts to reduce groundwater pumping, the partial installation of water meters and other
conservation measures forced upon the City by the Courts and by SCWA, groundwater levels under Rohnert
Park remain in overdraft by definition. "Overdraft is characterized by groundwater levels that decline over a
period of years and never fully recover, even in wet years. ,2 According to the 2000 Urban Water Management
Plan, Rohnert Park has pumped more groundwater in the last 30 years than all of the other cities in the county
combined. The modest attempts to repair this damage cannot be expected to remedy the City's profound
overdraft condition within the short space of time that has transpired since the orders were given to reduce
consumption.
Permitting a federal water right to be established in an area of proven groundwater overdraft creates a volatile
legal climate that puts at risk the water rights of every stakeholder in Sonoma County, including the City, the
Sonoma County Water Agency (SCWA) and all private wellowners.
If a federal water right holder becomes entangled in the ever - widening web of litigation that now binds Rohnert
Park, the United States Attorney General would be compelled to appear to defend that federal right. If the
owner of that federal water right is a bona fide Native American nation, as the Federated Indians of Graton
Rancheria are, then the federal water right is understood to be a "super right ". The U.S. Attorney General would
be overwhelmingly inclined to force all of the recognized water basins in Sonoma County into adjudication
because his client, armed with water super rights, would automatically receive the preponderance of water
rights. Conversely, the court- appointed watermaster (an office created under adjudication) would necessarily
dole out parsimonious rations of water to: the remaining residents, the cities, water districts and landowners.
Remember, under adjudication, all stakeholders are stripped of their respective water rights.
I Water 2025: Preventing Crises and Conflict in the West, U.S. Department of the Interior.
2 California's Mundwater Bulletin 118 Update 2003, State of California. The Resources Aeenev
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RECEIVED ED RP City Council re: proposed casino
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AUG 2 3 2005 2 of 2
MY OF ROHNERT PARK
Allowing a federal water right to be established in an area that has already been proven in court to be in 1
overdraft is reckless and can easily be avoided The City needs to implement an AB 3030 -style groundwater
management plan immediately and deny'any application for a casino or other proposed entity that enjoys
federal super rights over water.
An Inadequate WSA Still in Litigation
It is premature to consider any major project that' is also a major consumer of water until litigation involving the
Water Supply Assessment (WSA) is resolved. Notwithstanding a City Council stamp of approval, the recent
Water Supply Assessment has been exposed to be wholly inadequate and fails to prove adequate supplies of
waxer. Not only is this very document itself in litigation, it is the only document the City offers as proof of
future water supplies. If the courts ultimately deem the WSA inadequate, the City may be forced to fix its water
problem and implement a groundwater management plan before creating yet more demand for scarce water
resources.
The City could, with relatively little effort; bring the water table back to optimal, even historical, highs, and
thereby eliminate overdraft; and implement a groundwater management plan to keep groundwater levels from
sinking back into overdraft. All it takes is will. Over 160 other locales in California already have adopted AB
3030 -style groundwater management plans.
Obviously, the prudent course of action would be to wait until litigation of the WSA is resolved before
approving any major water consuming project, specific plan or other undertaking.
Respectfully,
H.R. Downs
President
AD HOC COMMITTEES AND TRANSPARENT GOVERNMENT
ROHNERT PARK CITY COUNCIL CC . C-L
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September 23, 2005 R • t �JOS
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By Gregory Nordin
Mayor Mackenzie talks about transparent government but creates ad hoc committees.
These ad hoc committees have been meeting in secret with the Federated Indians, the
Penngrove Fire Department and Sonoma State University. Major developments have
popped up, fully formed, with no public debate. This system of making City decisions in
secret is not in the best interests of the Citizens of Rohnert Park.
The SSU Plan to build hundreds of homes in open space is a perfect example. The
Mayor appointed an Ad Hoc Committee consisting of Vice Mayor Vidak Martinez and
Council member Smith. I assume that the Committee has been meeting with University
officials over this project but because the meetings are secret, I am not sure. When only
two people represent the interests of Rohnert Park, there are bound to be omissions. This
is particularly so when the two people are Sonoma State University graduates.
Councilmember Smith has been a member of the SSU Alumni Association Board.
Understandably the two Councilmember's might not critically examine the University
proposals.
This project goes against the City's General Plan. Mayor Mackenzie and Vice Mayor
Vidak Martinez, we debated whether the land east of the "G" neighborhood should be
open space. Developers suggested the land be developed during the General Plan
process. We thought long and hard and decided to include the land into Open Space. We
even made it priority open space in order to create a greenbelt around the City. Mayor
Mackenzie, you sounded resigned in the newspaper to let development take place on this
open space. I guess your open space views to the north have changed.
We have had flooding in the "G" and "F" neighborhoods over the years. The small creek
channel through "G" "H" and "F" neighborhoods is barely large enough to handle storm
water during normal storms, let alone a 100 -year storm. Development to the east will add
storm water runoff. What will be done to make sure the University project does not add
to flooding in the "G" and "F" neighborhoods, if it is built?
Cover
This land is at the end of Golf Course Drive. At present, we hear that Golf Course will
not be connected through the Development to Petaluma Hill Road. Do you really think
that emergency vehicles and the residents will put up with a round -a -bout trip? The trip
will be more than 3 miles up to Snyder or down to Keiser for parents to take their
children to Goldridge School. The first time someone in the development needs
emergency assistance and it takes five minutes longer, the residents will insist that Golf
Course Drive be made a through street.
Once Golf Course is made a through street, it will serve as a back door shortcut for traffic
traveling to the West Side commercial development and to and from highway 101.
Residents of "G" "H" and "F" neighborhoods have feared this of happening.
The development is in the Rancho Adobe Fire District. Rohnert Park has a mutual aid
agreement with the District. We will find our Public Safety responding to calls for
service in the new development further burdening our already overworked Public Safety
staff.
The University development will not be bound by our General Plan. They will not be
required to build parks as we are. Will these residents use Golis Park?
How will the University pay its fair share of the costs or will Rohnert Park taxpayers pay
more? There will be an increase in costs associated with storm water facilities, water
system improvements, sewer upgrades, increased maintenance of Golis Park, street
improvements and maintenance and for Public Safety Services. How do you plan to
protect the pocketbooks of Rohnert Park taxpayers?
Councilmember Smith, in the newspaper I read that you indicated the City cannot do
anything about being squeezed by the University. There was an agreement between the
City and the University to provide sewer service to the campus, let alone a new
development project. The. agreement has expired. But the City has very strong leverage
to negotiate a new deal with the University. The Council needs to represent the interests
of Rohnert Park taxpayers by being strong negotiators with the University.
The community needs a thorough examination of the University development project. If
we are going to have a truly transparent government, this is what we need. Public
inspection of the project might prove that this development should be stopped. So far, all
that we have had are secret meetings where the interests of the community are
represented by politicians with a strong bias for the University. Mayor Mackenzie, you
voted against the 200 million dollars for Rohnert Park because you wanted to negotiate in
public. Now is your chance to bring substance to your political rhetoric. I hope the
Mayor and Council will step up to this challenge!
Susan H. Adams
S
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5758 Davis Circle, Rohnert Park, CA 94928
August 23, 2005
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Good evening, Mr. Mayor, Madam Vice - Mayor, members of the council.
Last year voters in our community received this flyer depicting a $200 million
dollar check made payable to the citizens of Rohnert Park ($10 million dollars a
year for 20 years, which works out to a little over $83,000 a month). We all know
where $83,000 will come from. People in our urban area, many at the shallow
end of the resource pool, will gamble away somewhere in the neighborhood of
$25 million dollars a month.'
Since the Federated Indians of the Graton Rancheria have expressed an inte est
in moving their planned development inside our urban growth boundary, d
since every family in town will be affected by this move, I am here tonight to ask
the city council to place an advisory vote on the ballot which gives Rohnert.Park
families an opportunity to weigh in on this important issue.
I propose the following wording:
ja�I_t ve Am ev c Crw,
"Should a casino be built within Rohnert Park's urban growth
boundary ?"
I thank you for your time and look forward to your response.
'Here's the math: Thunder Valley Casino (also managed by Station Casinos) took in roughly $300
million dollars in its first year of operation. Assuming they don't grow beyond that
number ... over a 20 year period citizens in the surrounding community will gamble away
somewhere in the neighborhood of $6 billion dollars. Six billion divided by 20 years is 300
million. 300 divided by 12 months is 25 million a month. These numbers represent a best guess
estimate.
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Legal Notes <PRINTER- FRIENDLY PAGE> PC . ub-j,+ &
Are Utility Fees Subject to Proposition 218?
May 2005
by Michael Colantuono
On March 23, 2005, the Fifth District Court of Appeal decided Howard Jarvis Taxpayers
Association v. City of Fresno. The court concluded that
Ordinary water, sewer and trash fees are subject to Proposition 218;
Prop. 218's requirements have applied to such fees since July 1, 1997, whether or
not such fees have been "extended, imposed or increased" since that time; and
Utility fees may include the cost of providing municipal services to public utilities,
such as the cost of repairing streets impacted by wear and tear of utility vehicle
traffic.
The Fresno decision is not yet final and the city will appeal the decision to the Ca6fomia
Supreme Court, which is considering similar legal issues in Bighorn- Desert View Water
Agency v. Beringson. However, if the opinion becomes final and the California Supreme
Court does not conclude differently in Bighorn, it will mark a major shift in the law applicable
to public utility rates. Whether or not the decision becomes final, it provides an occasion to
review contested issues regarding utility rates under Prop. 218. It will be of greatest interest
to agencies that transfer funds from utility enterprise accounts to general funds for
purposes other than to recover the cost of services provided.
The Court of Appeal Decision
In 1957, Fresno voters amended the city's charter to authorize an ordinance requiring the
citys utilities to make a payment in lieu of taxes (PILOT) to the city's general fund in the
amount each would pay in property taxes if it were a private enterprise. The fee now
amounts to 4.5 percent of the city's general fund, supporting police, fire, parks, public
works and other municipal services for city residents. In 2003, the Howard Jarvis Taxpayers
Association filed suit alleging the citys application of the PILOT to water, sewer and refuse
services violates Prop. 218.
The city argued that its utility rates were not subject to Prop. 218 because they are not
imposed due to property ownership alone, but rather voluntary decisions to consume utility
services, citing a 2001 decision of the California Supreme Court invohring housing
inspection fees imposed by the City of Los Angeles. The city also asserted that the fees are
not subject to Article XIII D, section 6(b) of the California Constitution (a provision of Prop.
218) because they have not been "extended, imposed or increased" since the November
1996 adoption of Prop. 218, as the measure's language requires. Finally, the city noted that
the
PILOT operates much like a utility user's tax and received the appropriate voter approval
required for such taxes.
Citing a decision involving the City of Roseville, the Fresno Superior Court rejected the
city's contentions and ordered it to suspend. imposition of the PILOT on water, sewer and
trash services. On March 23, 2005, the Fifth District Court of Appeal affirmed this
judgment.
The decision states that many utility charges for water, sewer and solid waste services are
property- related fees subject to Prop. 218, concluding that "a fee for ongoing water service
through an existing connection" is a property- related fee subject to Prop. 218 and that
similar charges for ongoing sewer and solid waste services are also subject to that
measure.
Next, the court concluded that Article XIII D, section 6(b), which imposes five substantive
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requirements when fees subject to Prop. 218 are "extended, imposed or increased," -
applies to Fresno's water, sewer and trash rates, even though those rates had not been
"extended, imposed or increased." So -if a fee is subject to Prop. 218 at an, this court
concludes it must comply with Article XIII D. section 6(b), whether or not it has been
"extended, imposed or increased" because the measure was adopted by virtue of section
6(d).
The court also concluded, however, that Fresno can require its utilities to reimburse its
general fund for the direct and indirect costs of city services to those utilities, provided that it
carefully calculates the cost of those services. Thus, if a city can calculate the wear and tear
of utility vehicles on streets, the cost of providing poke and fire protection to utility property,
and the cost of other municipal services to uti ilies, it can require the utilities to reimburse
those costs to its general fund.
The opinion strongly suggests that the California Supreme Court's decision in Hansen v
City of San Buenaventura is no longer good law, at least as applied to water, sewer and
solid waste services.
Hansen found that local governments were entitled to operate water and other ufti'ilies at a
profit, with the excess revenues going to their general funds.
Finally, the court found that Fresno's PILOT was not a general utility user's tax and
therefore the voter approval was irrelevant.
The City of Fresno has directed its counsel to seek rehearing of the case in the court of
appeal and to seek review in the California Supreme Court, if necessary. The citys mayor
and a 5-2 majority of its city council viewed the case as having very significant impacts on
its ability to fund public services. The city's leaders voted to further appeal the case in the
hope of attaining a statewide resolution to these important issues.
As a resufi, this decision is not yet final. It nonetheless identifies the current position of
taxpayer advocates and highlights the major open issues regarding the fee provisions of
Prop. 218.
Options for Public Utilities
Although the Fresno case is very recent and its impact on public utility rates will become
clearer over time, some preliminary observations may be made. Local governments
operating public utilities appear to have at least these options:
Take no action to change utility rate - making practice until the final outcome of this case is
known. It will be prudent to confirm that the agency has an up-to -date claiming ordinance in
place to limit liability for refunds in the event the law changes and requires a change in
agency rates. Such an ordinance can limit refund liability to one year. Otherwise a
three -year statute of limitations will apply. Promptly comply with the substantive
requirements of Article XIII D, section 6(b) and the procedural requirements of section 6(a)
when adopting a new utility fee subject to Prop. 218, increasing such a fee or extending a
fee's sunset date or other stated period of effectiveness. This approach is not yet legally
required but eliminates any risk that the law might change or that the agency's rate - setting
will draw legal challenge under Prop. 218. Many agencies have already taken this approach
as a precaution and need make no changes as a result of the Fresno ruing.
Analyze the cost of services the agency provides to its utilities, including such
indirect costs as street maintenance and police and fire services, and require the
utrTifies to reimburse the agency's general fund for those costs.
Revise utility fee structures to distinguish fees imposed for "ongoing water [or sewer
or trash) service through an existing connection [or to an established account]" and
fees imposed for services provided to a "self- selected group of water [or sewer or
trash] service applicants" such as tum -on and tum -off fees, fees for the installation
of a new or larger meter, and regulatory and inspection fees.
The Opinion's Effect on Rate - Making Practices
A number of specific rate- making practices appear to invite more thought in light of the
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not-yet-final decision in the Fresno case. Discounted rates for seniors, the disabled and
low- income persons for water, sewer and trash services would appear to be subject to
Prop. 218. Such subsidies can be funded with general fund monies or private donations. In
addition, voters may approve such subsidies as special taxes, if two- thirds approval is
obtained. Because such rate structures are popular, electoral approval may be feasible for
many agencies.
Many agencies impose rate structures that encourage conservation by providing rates that
rise with consumption. These structures may be defensible even under Prop. 218 N an
agency can show that a failure to encourage conservation wig require the agency to obtain
additional supplies that will be more costly than existing supplies.
Conclusion
The Fresno decision is not final yet and therefore not a binding expression of California law.
If the decision does become binding, however, it will represent a major change in
rate - making law. The full impact of such a change is not yet known and will turn on the
Supreme Court's decision in Bighorn - which is not expected until early 2006 - and on
Fresno's petitions for rehearing and review in this case. In the meantime, the foregoing
commentary may provide cities some initial guidance.
Proposition 298 in a Nutshell
Proposition 218 requires voter approval for all taxes and for certain fees that are
.property-related." Water, sewer and refuse collection fees that are property- related are
exempt from the voter approval requirement Defining what is and is not a property - related
fee has been the subject of several court cases. Prop. 218 also sets forth the procedure
that must be followed to impose assessments on real property for capital improvements
such as streets, sidewalks and landscaping. For more information, visit www.cacifies.org
and type "Proposition 218" into the site search box
Michael Colantuono of Colantuono & Levin, PC, is city attorney for the cities of Calabasas
and Sierra Madre and immediate past president of the League's City Attomeys
Department. While the views expressed here are his own, the authorgratefully
acknowledges the comments and suggestions provided by Betsy Strauss and Daniel S.
Hentschke. Colantuono can be reached at mcolantuonoCDcllaw.us
12005 Daily Journal DAR 3402, 2005 West Law 665253. Although the views expressed
here should be attributed only to the author, he gratefully acknowledges the comments and
suggestions provided by Betsy Strauss and Daniel S. Hentschke.
2 California Supreme Court Case No. S127535
3 The City of Fresno's municipal utilities include the Water Division, Solid Waste
Management Division, Parking Division, Goff Course Division, Sewer Maintenance Division,
Waste Water Management Division, Transit Department and Airports Department. The
decision affects only PILOT payments by the water, sewer and sold waste utilities.
4 In 2005, it is estimated that $8.5 million in fees would be transferred to the city's general
funds.
5 Specifically, the plaintiffs contended that the three utilities fees violated Article XII1 D,
section 6(b)(1) of the California Constitution, which requires that unity revenues "not
exceed the funds required to provide the property related service"; section 6(b)(2)'s
requirement that utility revenues "not be used for any purpose other than" utility operations;
and section 6(b)(5)'s requirement that utility revenues not be used for "general government
services, including, but not limited, to police, fire, ambulance or library services."
6 Apartment Association of Los Angeles County, Inc. v. City of Los Angeles, 24 Cal. 4v'
830.
7 Howard Jarvis Taxpayers Assn v. City of Roseville, 97 Cal. App. 4h 637 (2002).
8 Article XIII D, section 6(d) states: "Effective July 1, 1997, all fees or charges shag comply
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with this section
9 2005 Dally Journal DAR at 3404.
10 42 Cal. 3d 1171 (1986)
11 A model of such an ordinance is available at www.cilaw.us/papersldalms.doc .
12 See Goverment Code Section 905 (exempting refund claims from Goverment Clams
Act), Section 935 (author¢ing local claiming requirements for otherwise exempt darns),
Pasadena Hotel Development Venture v. City of Pasadena (1981)1.19, Cal. App. 3d 412
(upholding such an ordinance). See also, Howard Jarvis Taxpayers Association v. City of
La Habra, (2001) 25 Cal. 4th 809 (in absence of local claiming ordinance, three -year
statute of C.C.P. Section 338(a) applies to tax and rate refund claims).
13 Under Richmond v. Shasta Community Services District, 32 Cal. 4th 409,430 (2004),
these latter charges are not subject to Prop. 218. Fees on new development triggered by
that development, such as capacity and connection charges, are also exempt by virtue of
Article XIII D, section 1(b) and the Richmond case.
14 See, e.g., Brydon v. East Bay Mun. Uff Dist. (1994) 24 Cal. App. 4h 178 (upholding
such fees).
last updated : 5110/2005
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