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PVWMA certifies fee in midst of suit

Jon Chown, Register Pajaronian
7/20/2011

http://www.register-pajaronian.com/v2_news_articles.php?heading=0&story_id=11021&page=72

The Pajaro Valley Water Management Agency approved a resolution Wednesday certifying that the agencys management fee of $18 per residential parcel and $20 per commercial parcel is in compliance with state law, though two agency directors dissented.

Each year, the agency collects the charge through the county tax rolls. Its a major source of income for the PVWMA and is currently being challenged in court. For the counties to collect the fees, the agency must certify that its collection is in compliance with the law. The PVWMA had to make the certification by Aug. 1 for the fees to be collected.

South Santa Cruz County resident Harold Griffith has challenged the fee, contending that since the fee is really a tax, it requires approval through the Proposition 218 process, which allows the public a protest vote. Griffith successfully challenged the PVWMA in 2005 and won when his case was consolidated into the PVWMA v. AmRhrein case.

It is due to PVWMA v. AmRhein, which bound the parties from further challenging the PVWMAs augmentation fees, that the agencys attorney, Anthony Condotti, said the management fee would also be found constitutional. He said the agencys recent victory in Santa Cruz County Superior Court over Pajaro Sunny Mesa Community Services District, which challenged the augmentation fee in 2009, and director John Eiskamp, who challenged the augmentation fee in 2010, is evidence that he is right.

Throughout this discussion Ive been very careful not to contend I can predict the outcome of litigation with any certainty, but based on the cases in the trial courts, I think its at least indisputable that two superior court judges have agreed, Condotti said.

Griffith, who was in the audience, did not agree. He urged the directors to do their own reading and study the issue.

This resolution is really clear it says you people have certified that the agency has met all the legal requirements, he said. It doesnt say that we, the agency, will rubber-stamp it because we want the money.

Director Dave Cavanaugh made the motion to approve the resolution and discussion ensued. Director Dennis Osmer said he disagreed with Griffith and it should be up for the courts to decide the constitutionality of the management fee, not the agency.

Whats before us is a question that is really complex. Its so complex that the court has not ruled on this in 26 years, Osmer said. The answer is probably yes, until the courts find it unconstitutional.

Director Dwight Lynn disagreed. He said he read a guide to Proposition 218 and felt the fee was unconstitutional.

The courts havent made a decision on this thing and, to me, it throws it back into our court to look at whats right, Lynn said. Since there hasnt been a vote, in my line of thinking, this thing doesnt seem right, so to go forward and testify to the counties that we think it is right is wrong.

Lynn joined director John Eiskamp in dissenting. Directors Rosemarie Imazio, Cavanaugh, Rich Persoff and Salvador Vasquez voted in favor.

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