ATTACHMENT B
RESOLUTION NO.
VWD 26-011
1 RESOLUTION NO. VWD 26-011
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
VICTORVILLE WATER DISTRICT ADOPTING A WRITTEN OBJECTION
ADMINISTRATIVE EXHAUSTION PROCEDURE PURSUANT TO
ASSEMBLY BILL (AB) 2257 APPLICABLE TO WATER RATE SETTING PROCEEDINGS UNDER PROPOSITION 218
WHEREAS, the Victorville Water District (the “District”) is a subsidiary district of the City of Victorville (the “City”) in which the City Council is designated and empowered to act as the ex officio Board of Directors of the District (hereinafter the “District Board”); and
WHEREAS, the District provides water and water delivery services (“ Water Service”) to property owners within its jurisdictional boundaries (who may also be referred to as “owners" or “customers”), and establishes the fees to be charged to said customers for such Water Service (hereinafter “Water Rates”), in accordance with California Water Code sections 31007 and 31025, Chapter 10.04 of the of the Victorville Municipal Code (the “VMC”), and other applicable laws; and
WHEREAS, California law authorizes the City and the District to charge fees to such owners/customers for the proportionate cost of providing Water Service to each property owner in accordance with the procedural and substantive requirements of the voter - approved ballot measure known as "Proposition 218" (California Constitution Article XIII D, as implemented by the Legislature in the Proposition 218 Omnibus Implementation Act set forth at Government Code Sections 53750 – 53759.2, and as it has been judicially interpreted by appellate court decisions); and
WHEREAS, under Proposition 218, the District's Water Rates are considered “fees or charges" for a "property-related service" (also referred to as "a property-related fee”), subject to the particular requirements of Section 6 of Article XIII D of the California Constitution. A property-related fee is one imposed upon any parcel or person as an incident of property ownership. In general, the District may only increase its existing Water Rates if the District: (1) calculates the Water Rates in accordance with Proposition 218; (2) conducts a noticed public hearing before the District Board; and (3) does not receive "timely written protests” submitted by property owners representing a majority of the parcels served by the District; and
WHEREAS, under California Government Code sections 53759.1 and 53759.2, the District may establish a supplemental procedure for objecting property owners to exhaust administrative remedies by which the District will take specified actions in response to any “timely written objection” received. Under this supplemental procedure, only an owner who submits a timely written objection will have a right to challenge a proposed increase in Water Rates through a legal proceeding. These supplemental procedures were authorized by Assembly Bill (AB) 2257 (Ch. 561, Stats. 2024), effective January 1, 2025; and
2 WHEREAS, this Resolution is intended to provide a meaningful opportunity and a procedure for a property owner to submit a written objection to new or increased Water Rates early in the rate consideration process, and enable the District to address or resolve any objections before the District Board makes a final decision on whether to adopt proposed Water Rates pursuant to Proposition 218; and
WHEREAS, this R esolution will identify the procedure the District will follow to implement the administrative remedies which must be exhausted by property owners under Government Code S ection 53759.1 prior to such property owners initiating litigation to challenge any proposed District Water Rates; and
WHEREAS, in general such procedures will require the District, at least forty-five (45) days before conducting a public hearing to consider adoption of proposed new, increased, or extended Water Rates to: (1) make available the proposed Water Rates and post the written basis for such proposed Water Rates on the City’s internet website; (2) provide mailed written notice of the public hearing and provide not less than forty-five (45) days for property owners to review the proposed Water Rates and submit to the District a timely written objection, specifying the grounds for alleging that said Water Rates do not comply with Proposition 218; and (3) consider and provide a substantive written response to each timely written objection submitted prior to the close of the public hearing described therein; and
WHEREAS, with respect to Water any Rates approved by the District implementing the procedures described in this R esolution, a person or entity shall be prohibited from bringing a judicial action or proceeding alleging noncompliance with Section 6 of Article XIII D of the California Constitution for those Water Rates, unless that person or entity has timely submitted to the City or District a written objection to said Water Rates that specifies the grounds for alleging noncompliance with Proposition 218; and
WHEREAS, the District Board hereby intends to adopt the exhaustion of administrative remedies procedure and the administrative record principles contained in Government Code Sections 53759.1 and 53759.2; and
NOW, THEREFORE, THE VICTORVILLE WATER DISTRICT BOARD OF
DIRECTORS, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
SECTION 1. That the Recitals and findings set forth above are true and correct and are hereby incorporated in their entirety as part of this Resolution by this reference.
SECTION 2. That this Resolution is adopted pursuant to Government Code Section 53759.1 and the powers granted to the District under the California Water Code, including but not limited to, Sections 31007 and 31025, which authorize the District to establish, fix, and collect rates, fees, and charges for water service and to adopt rules and regulations necessary for the administration and operation of the District.
3 SECTION 3. That pursuant to Government Code Section 53759.1 , the District’s exhaustion of administrative remedies procedure for challenges to fees or charges (Water Rates) attached hereto as Exhibit “A” and incorporated herein by reference, is hereby adopted.
SECTION 4. That the administrative record principles contained in Government Code Section 53759.2 are hereby adopted.
SECTION 5. That the District General Manager and District Legal Counsel take such other additional actions as may be reasonably necessary to implement the purpose and the intent of this Resolution, including but not limited to, promulgating administrative regulations which are consistent with the exhaustion of administrative remedies procedure attached in Exhibit “A”.
SECTION 6. That the adoption of this Resolution is exempt from the California Environmental Quality Act (CEQA) because: (i) it is not a project within the meaning of Public Resources Code section 21065 because it has no potential to alter the physical environment; (ii) and pursuant to CEQA Guidelines section 15061(b)(3), the so -called “common sense” exemption, for this same reason.
SECTION 7 That this Resolution will take effect immediately upon its adoption and will apply to any proposed new or increased Water Rates for which the Procedures in the attached Exhibit “A” are specified by the District Board to be followed and for which notice is provided in accordance with this Resolution.
SECTION 8. That the District Secretary shall certify to the passage and adoption of this Resolution.
4 Exhibit A
5 VICTORVILLE WATER DISTRICT
EXHAUSTION OF ADMINISTRATIVE REMEDIES PROCEDURE FOR CHALLENGES TO WATER RATES SUBJECT TO PROPOSITION 218
1. Scope. The duty to exhaust administrative remedies extends to:
A. The proposed adoption by the Victorville Water District Board of Directors (“District Board”) of any new, increased, or extended fees or charges (Rates) for property related water services that is subject to Section 6 of Article XIII D of the California Constitution; and
B. The methodology used to develop and levy any such fees or charges (Rates).
2. “Public Hearing” means the public protest hearing required under Section 6 of Article XIII D of the California Constitution and noticed under this Procedure.
3. Duty to Exhaust. No person may bring a judicial action or other proceeding alleging noncompliance with Article XIII D of the California Constitution for any new, increased, or extended fees or charges (Rates) that is within the scope of Section 1, above, and is levied by the Victorville Water District (“District”), unless that person submitted to the District Board Secretary a timely written objection to such fees or charges (Rates). Any such timely written objection must specify the grounds for alleging noncompliance and comply with the requirements of this Procedure, in accordance with Government Code Section 53759.1.
4. Procedures. The District shall:
A. No less than forty-five (45) days before the deadline for the property owner to submit an objection pursuant to Subsection C of this Section 4:
i. Make available to the public any proposed fees or charges (Rates) to which this Procedure is to apply; and
ii. Post on the internet website of the City of Victorville, as the District is a subsidiary district of the City of Victorville (“City”), a written basis for the fees or charges (Rates), such as a cost of service analysis or study, and include a link to the internet website in the written notice of the Public Hearing mailed to property owners pursuant to and containing the information required by paragraph (1) of subdivision (a) of Section 6 of Article XIII D of the California Constitution.
B. Mail the written basis described in paragraph ii of Subsection A of this Section to a property owner on request.
C. Identify on the mailed notice of Public Hearing (described in paragraph ii of Subsection A) a deadline date and time, that is not less than forty-five (45) days after the notice of Public Hearing is mailed, for a property owner to review the proposed fees or charges (Rates) and to timely submit to the District Board Secretary a written objection to said fees or charges (Rates) that specifies the grounds for alleging 6 noncompliance. Any objection shall be received by the District no later than the deadline date and time identified in the mailed Public Hearing notice.
D. I
nclude in the written notice of the Public Hearing a prominently displayed statement that contains the following information:
i. T
hat all written objections must be received by the District Board Secretary by the deadline established under Subsection C.
ii. That a failure to timely object in writing bars any right to challenge the proposed fees or charges (Rates) in court.
iii. All substantive and procedural requirements for submitting an objection to the proposed fees or charges (Rates).
5. B
oard of Directors Consideration and Responses. The Board of Directors shall conduct the Public Hearing to consider approval of the proposed fees or charges (Rates). Before or during the Hearing, the Board of Directors shall consider, and the District shall respond in writing to, any timely submitted written objections. The Board of Directors may adjourn or continue the Public Hearing to another date if necessary. The District ’s responses shall explain the substantive bases for retaining or altering the proposed fees or charges (Rates) in response to written objections, including any reasons to reject the requested amendments.
6. B
oard of Directors Determination. The Board of Directors , in exercising it s legislative discretion, shall determine any of the following:
A. W
hether the written objections and the District’s responses warrant clarifications to the proposed fees or charges (Rates).
B. Whether to reduce the proposed fees or charges (Rates).
C. Whether to further review the proposed fees or charges (Rates) before determining whether clarification or reduction is needed.
D. Whether to proceed with the Public Hearing and adopt the proposed fees or charges (Rates).