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Council to Vote to Send Refuse Fee Increase to Property Owners

By J. Douglas Allen-Taylor
Thursday April 16, 2009 - 07:14:00 PM

Berkeley property owners may soon be asked to approve a 20 percent increase in city refuse fees in a somewhat controversial “majority protest” mail-in voting procedure. The unusual ballot process automatically counts votes not received as “yes” votes. 

The Berkeley City Council is scheduled to consider sending the rate increase proposal to property owners at the council’s next regular meeting, Tuesday, April 21, following a March 23 Zero Waste Commission decision recommending the increase. 

If approved by property owners, residential refuse collection rates for the average 32-gallon can would rise $4.52 per month, from $22.58 to $27.10. Commer-cial rates would rise by a similar percentage. City Manager Phil Kamlarz says the measure will fail only if an absolute majority of all owners of commercial and residential property in the city send in no-votes to City Hall. 

Based on the city’s interpretation of state law, Berkeley citizens not owning property in the city will not be allowed to vote in the referendum, while nonresidents owning property in the city will be allowed to vote. 

Each property owner will be allowed one vote for every piece of property he or she owns in the city from which refuse is collected separately. 

Kamlarz says that the voting procedure is actually more democratic than the previous city system of approving refuse fees, and, in addition, the procedure is state-mandated under a recent state court ruling. His contention is that an absolute majority of all eligible property owners, not just those who send back ballots, must vote no for the proposal to fail. 

Further, Berkeley city officials say the increase is necessary to stave off a projected deficit in the city’s refuse fund that could reach close to $19 million by June 2013. 

In past years, Berkeley and other California cities were allowed by state law to raise refuse fees by a simple majority council vote following a public hearing. No citizen or property owner vote was required. 

In 1996, California voters passed Proposition 218, which, among other things, required majority voter approval for all local general taxes and two-thirds voter approval for all local special taxes. 

In the 10 years that followed, the Prop. 218 voter approval requirements were not applied to many of the service fee increases under the jurisdiction of cities within the state. 

In 2006, however, in a case entitled Bighorn-Desert View Water Agency v. Verjil, the California Supreme Court ruled that the Prop. 218 citizen approval requirements also applied to a broader range of city fee increases. That ruling is now being applied to refuse collection rate increases. 

The procedures for the “majority protest” vote on the proposed fees are spelled out in Prop. 218. Under those requirements, notice of the proposed fee increase and return mail-in ballots must be mailed to all the owners of property who would be subject to the proposed increase. Those notices and mail-in ballots must be mailed out to the property owners at least 45 days before a scheduled public hearing on the proposed increase. The ballots will then be counted at the public hearing. 

Berkeley resident Barbara Gilbert, who is opposing the rate increase, calls the rate increase proposal “another way of imposing higher taxes on city residents,” and says that the method of balloting being adopted is flawed in several ways. 

“There’s no opportunity for opposing ballot arguments on the ballots being mailed to the parcel holders,” Gilbert said by telephone. In addition, she said that ballots will be sent out to some 31,000 parcel holders in the city. “And in order for the rate to be rejected, 50 percent plus one of the parcel holders receiving the ballots must send back their ballots with a ‘no’ vote.” Gilbert called that threshold “almost impossible to achieve” even if there is majority sentiment against the increase. 

Gilbert also said that, by not using the parcel holder vote mandated in Prop. 218 after the measure was passed in 2006, “apparently, the city has been raising refuse fees illegally” since that time, and she suggested that citizens may be filing lawsuits against the city to collect refunds from past refuse fee increases. 

Kamlarz’s office is proposing that the council approve a public hearing on the proposed refuse fee increase for June 23, with the refuse collection rate increase to become effective July 1, if approved by the city’s property owners.