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Appeals court rejects appeal; water agency fee stands

Posted: Wednesday, Oct 16th, 2013

WATSONVILLE — A panel of judges on Tuesday unanimously ruled that a controversial water augmentation charge by the Pajaro Valley Water Management Agency in 2010 was valid, a decision that likely will end the legal battle that has cost the agency more than a half-million dollars.

“We’re just thrilled,” PVWMA General Manager Mary Bannister said. “We think this is the final word. The litigants could appeal to the Supreme Court, but the lawyers think it’s unlikely.”

The plaintiffs in the case, Joseph Pendry, William McGrath, Harold Griffith and others, have 40 days to appeal the decision to the California Supreme Court, but PVWMA attorneys said that fewer than 10 percent of such appeals are accepted.

“Those things are Hail Marys,” Griffith said.

The decision by the Sixth District Court of Appeals ended an appeal of a 2012 ruling by Santa Cruz Superior Court Judge Timothy Volkmann that validated a 2010 water augmentation fee.

The plaintiffs were challenging a $20 management fee imposed in 1993, an $80 pumping fee and a separate pumping fee from 2010, saying the fees violated Proposition 218, a statewide ballot initiative that lays out requirements for property-related fees, all of which were consolidated.

Approved by voters in 1996, Proposition 218 restricts the power of public agencies when imposing assessments, fees and charges, requires public notification before imposing them and requires a majority vote of property owners.

In its decision, the court of appeal found that PVWMA went “above and beyond” the requirements of Proposition 218, by conducting an election after fewer than 15 percent of well owners objected to the augmentation charge increase in a “majority protest” hearing, PVWMA stated in a press release.

“We did as much as we could to get voter buy-in,” Bannister said.

In their arguments, the plaintiffs also pointed to the 2007 case, PVWMA v. Amrhein, which in 2007 successfully challenged $40 increases made in 2003 and 2004 to the agency’s existing $80 charge.

The plaintiffs argued that PVWMA in Aug. 2010 ignored that ruling when it passed a fee through a vote that was weighted by water use rather than popular vote. That approved new fees that ran from $156 to $195 per acre-foot depending on location, and $306 per acre-foot for delivered water charges.

PVWMA special counsel Michael Colantuono said the Tuesday ruling not only affirmed the validity of the 2010 augmentation charge.

“It clarified a number of issues that water agencies throughout California have struggled with in their efforts to comply with Proposition 218’s confusing and sometimes contradictory requirements,” he said.

PVWMA General Manager Mary Bannister said the decision, “vindicates the years of hard work of our Board of Directors and many interested members of the community devoted to developing and winning public support for the 2010 augmentation charge.”

Harold Griffith said he plans to appeal, based in part on PVWMA’s Agency Act, which limits what projects the agency may spend money on.

He also said the plaintiffs will appeal the constitutionality of flat fees for customers, whose water use varies drastically.

“The case yesterday said the fees don’t have to be proportional,” he said. “They misinterpreted it.”

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