Public Comment

The proposed ordinance, called the Building Energy Saving Ordinance, is unconstitutional

I would like to suggest and argue that the Building Energy Saving Ordinance (#7,387 – NS) is unconstitutional on three grounds. It is a violation of due process. It levies a tax mistakenly named a fee in the ordinance. And it subjects each property owner to a requirement that is too general and overly broad. 

The procedure contained in this ordinance is that each building owner must hire an agency, possibly an arm of PG&E, to do an energy audit, and provide a report of that procedure and the condition of the building to the city (Planning and Development) by a certain specified date. Failure to do so is a misdemeanor – that is, it is a crime. 

The act that the ordinance requires of each building owner is the hiring of a third party (not the city) to do the audit, for the cost of which the owner will be responsible. That is, the ordinance gives the city the power to require a commercial relationship between a citizen of this state and a third party providing the service required by the ordinance. 

1- Because the ordinance requires each building owner to hire a service (energy audit), failure of which will be a crime (misdemeanor), the ordinance establishes a condition of enforceable obedience on each property owner. And the act of obedience required by the ordinance is that the property owner hire a service and pay the service provider money. That is, the ordinance requires that each property owner be deprived of the money paid the service provider, under penalty of law. This money is not a tax to the city, which is legislatable. And it is not a fee to the city for a service the use of which is voluntary. It is an absolute requirement that each property owner be deprived of money, under penalty of law. This is a deprivation of property in the form of money by the city without due process. Deprivation of life, liberty, or property without due process is prohibited by both the California constitution and the US constitution. 

In order for this ordinance to be constitutional on these grounds, the city would have to hire the agency that performs the service, and pay all charges to that agency in the performance of that service for the city. 

2- The ordinance requires every property owner to provide an Energy Report which includes an Energy Score by dates established in the ordinance. These reports constitute the full compliance with the requirements of the Chapter. Administering the Chapter will be the duty of an Administrator, which involves accepting the reports and publishing the energy scores. For this purpose, the ordinance establishes that fees can be levied by resolution of the city council. But these fees are not levied on the owner, but on the compliance status of the real property. A deferral of compliance attaches to theowner, and not the property. It is the responsibility of the owner to comply with the ordinance. But the fees attach to the property, and not to the owner. As the paragraph on "responsibilities" states, a seller must inform a buyer concerning the “compliance status of the real property.” If the fees attach to the property and not to the act of submitting a report, then they are in reality a tax. 

As a tax, what is called a fee can be instituted only by a vote of the citizens effected. And since the recipient of the funds collected in fees is specified, the tax would require a two-thirds majority to pass. 

3- The ordinance is overly broad and thus in violation of the US constitution by neglecting to establish the rates to be paid by building owners for reporting the compliance status of their property. This absence gives the city a blank check to set rates at whatever level it desires at some future time, whether through the Adminsitrator of the program or by future resolution. Since failure to obey the terms of the ordinance is criminalized by the ordinance, the ordinance has to be specific about what is being violated by such a failure, and the ordinance does not do that. Therefore, it is in violation of the US constitution on those grounds