That being the appointed hour, then I call to order this meeting of the Board of Directors of the Ohio Valley Sanitary District for April or for March 28 2022. Allison, would you call the roll please?
Gotcha. Curtis. Yeah, they're stone. Yeah, sure. All right here. Dr. Ken Tosh. Your director Martin sin. Dr. Bird here, Chair quality.
You're good. We have a quorum. First item is the Federation adoption of resolution 2022 Dash 05. Enabling continued use of remote teleconference meetings in accordance with a B 361. We would like to make a motion to that effect that allows us to continue holding meetings the way we are right now. Virtual or in person, your choice. The moment I saw move, and kiss Look at that. Thank you. Any discussion? Alison, please call the roll.
In three. Richard Curtis. Yes. Stone? Yes. Sure. All reg? Yes. Hector. Ken Tosh. Yes. Martin sin? Yes. dripper? Yes, check quality. Yes.
Thank you. I have a quick question on that topic. How long is this going to continue? So
the law expires that allows us to do this the way we're doing? Well,
we've started to see a rollback of the executive orders that the governor implemented as it relates to COVID. One of the specific ones was, there was a whole set of rules about use of retirees after they retire. And there were the old rules. And then there were special exemptions during code, all those exemptions have been eliminated. And so the governor is starting to roll back these rules. As it stands today. The law runs through January of 24. So in theory, if nothing happens, we could continue under this sort of scenario through 20 through 23. However, depending on where things go, they may get, you know, cut a little short. We'll just continue to watch it. And when it impacts our operations, we'll let you all know. But today, it's it's still ongoing. I looked at the they're only posting the COVID data on Mondays once a week now. There were like 307 cases, but that's a week long of cases. And there's 20 People in hospital and three in ICU. So the caseload, the hospitalization in the US are way down. But they're not zero. And so we'll just continue to watch it.
But one thing to note about that data on the Ventura County Emergency website, they list the data for the whole county which I think is the 307 that you quote, and then they have another table that goes in and lists the the count for the past 14 days by city. I think sometimes that's broken out by zip code, but the two the two never match. And I know I've sent notes to him I don't know which one's right but in any event I I know that I know the numbers don't match so but it's it's probably not too far off I would think on the county wide level. The thing we also need to be aware of this big two variant is on the rise cases in Denver went up about 30% in the last weeks so we'll see how that goes.
I guess gonna become a way of life with case case loads going up and down. Alright, next on the agenda is the Pledge of Allegiance if you would follow me please. Yeah.
To flag knighted states in which it stands, one nation under God
indivisible. Thank you all.
Jeff, do we have any additions or changes to the amendment amendments to the agenda?
We have nothing to change. Right.
You have any public concerns? Do we have any electronic communications with the board? Have anyone yet in the waiting room that would like to speak. I will pass on from public concerns then to our consent agenda. Three items, rule of minutes of the last meeting February 28. A deferred payment of capacity charge agreements review of disbursements and checks for the month up through a week ago. Anyone want to pull something to discuss it or ask questions about any of these items? The directors then it would be in order to approve Items seven, eight and nine.
Should anyone? Emotion chairperson? Thank you, Mr. Ken Tosh. Any discussion? Then? Allison, would you please call the roll on item seven, eight and nine.
Director Curtis?
Yes. Dr. Stone? Yes.
All right. Yes. Ken Tosh. Yes. Your bird? Yes. Check policy.
Yes. Thank you. Next we have our public hearing. continued public hearing illustrative appeal to the Board of Directors oesd Notice violation. Dash euro 14th. Would you explain
so what we have before you today? Is a
right yep.
You make your disclosures at this point in time pursuant to rule eight dash two. So now
I'll ask if anybody's had any.
Any parting thoughts? I'm
sorry. All right. Yes. This is read I'll read it to you
so that you know a little bit this okay disclosure of ex parte contact this pursuant to resolution number 2013 Dash 10 of the opsc Board of Directors regarding administrative hearings as protect contexts. 8.2. If any board member is exposed to information or evidence about the matter outside of the hearing through contacts with constituents, district staff, the appellant or through any other contact member shall disclose all such contacts and or evidence acquired, which is not otherwise included in the written or oral staff report. Point three type of disclosure to be made must be made before or during the hearing on the matter. So I think it's more prudent to do it before the hearing. Oh, I would ask that the rector's make any disclosures at this point in time pursuant to what I've just read?
What's just go around the horn. Director Curtis, have you had any ex parte contacts with people regarding this issue?
No, I have not.
Thank you direct Berg. No, I haven't. Director Elric no director can Tosh? Oh, I don't know. I have not either.
Give Mr. Martinson Oh, no, I'm
sorry.
All right. Out of sight out of mind, I know how it is
a little smaller. Yes. All right. So Jeff, if you'll introduce the item for us.
So, what we have before you tonight is a an appeal, a property owner, Mr. Vane as through the administrative process at the district he says regarding an accessory dwelling unit you on his property, and we issued a notice of violation and went through a process with Mr. Vane to permit the property. He decided to appeal that decision from staff to a general manager myself, we had a hearing on that matter. And Mr. Vane has decided to appeal my decision to you the board to hear both sides and decide what you feel is an appropriate remedy or an appropriate action to go forward from here. I want to give a little history and then sort of talk through the the issues here at hand. This is regarding a property on the Khumba and oak view. We first got got contacted by representative of the property in January of 2020. So nearly two years ago there have been many many conversations with Mr. Vane over the years through phone calls to myself to Alison to Lori many emails. The the issue is really the appropriate payment or the what is the appropriate number for payment of capacity charges for a dwelling unit. In this case, it's an adu issued an adu permit by the county of Ventura, and installed a new adu at his property. The particular adu is is what we would define as a new adu. There is a single family dwelling on the property. And Mr. Vane installed a new adu in the actually it's a manufactured home that was installed on the property. So this is not a garage conversion. This is not an interior conversion. This is, you know, a brand new dwelling unit on this property. And so what we've done is we have visited the property, we have counted the plumbing fixtures in the unit in accordance with our ordinance and assessed a fee proportional to the number of fixture units that are on the new unit. This is all under our new ordinance that was passed in. I believe it was OVSD-82. In April of 2021. Just sort of a side note on at us we've processed since 2017. We've processed nearly 138 ADU permits. Fast, vast majority of them have been some variation of a conversion, a garage conversion of existing structure conversion, something, there's approximately 10 that were actually new buildings, new dwelling units from the ground up. And all of those have been counted as plumbing fixtures and done a proportional count. All of the existing conversions were fees were waived in accordance with regulations promulgated by the state. One of the one of the issues that we have and we wanted to talk about is how regulations are developed in the state. So when the state passes a law many times there's conceptual things in the law many times there are some technicalities and some specifics. But almost all the time. They're not It's not detailed enough to get down to sort of our working level. And so there's this process. The federal level you hear sometimes it's called rulemaking or Congress passes a law and then the agency develops rules. Well, the same sort of process passed here. The state passed adu laws. Many of the components of the adu laws deal with the housing side of things setbacks, fire sprinklers, parking, all sorts of land use type decisions. But the one that has affected us is some discussion about connections and capacity charges. And so there have been about five of the almost 20 adu laws that have been passed that have some influence on us. And so we went through a process to take that state law and turn it into oesd rules under Ordinance 82. And so on page 139 of your package under our code, and we have this big binder, all kinds of D code in it on 139 in your binder on page, a section 301 dash four, it talks about application of capacity charges. And what we've done is we've outlined some discussion about different kinds of ad use. Exempt ad use, a junior ad use and ad use that are subject to proportional capacity charges and connection fees. So an exempt adu is an interior ADU. That's located within an existing registered building. Or it's created by converting an existing accessory structure. The most two most common types of these are words somebody takes a part of their house. It's an interior or isolated separate from the rest of the unit. And then both sides have of the House have a kitchen, a bedroom and a bathroom. went in a house several years ago, which is a very, very classic one, where they put it was a long ranch house Bradshaw house during the meeting. And they had two front doors, one on each end of the ranch house, and they had a door in the middle that lock. And they had a kitchen, a bedroom and bathroom on both sides. So they had two standalone uses in the same house under the same old roof. And they were independently accessible. That's sort of a conversion of an existing space. We also see in a lot of garage conversions or shed conversions people take something that was an artist's studio, are in a new an adu by adding a bedroom and a bathroom. So those are the exempt ad use. A junior adu is also exempt but a junior adu doesn't have its own fully functional set of plumbing fixtures in terms of a bathroom and a kitchen of common kind of adu. A junior adu is somewhere where you actually, by law get permitted to rent out a room. And the person has some sort of maybe a bedroom and a bathroom that then uses the common kitchen or something like that. But it isn't a fully standalone functional dwelling unit. And so you have these three different kinds of exempt data use. In all cases, the exempt data use do not pay capacity charges are exempt. They pay a permit fee, we go into our database, we log that property as having a second unit, and they pay the monthly sewer service charges, but they don't pay the capacity charges at all. At US that are subject to capacity charges is under Section C. And there is it as a brand new unit. It's a brand new box on the property, so to speak. And that property is subject to capacity charges. But under state law, it has to be proportional. And so under ordinance 82, what we do is we go in and count the plumbing fixtures, and there's certain points. This is all set out in the uniform plumbing code, how many points does a sink have in a shower and a toilet? If you have a bathroom that has two vanities that's different than if you just had one vanity. So we add up all those points and do a street division calculation and then apply that factor. See charge itself. In this case, property owner Mr. Vane has been assessed as a as the charge that's about $12,000. So it's about two thirds of the of a full unit, so to speak. Most of the day to us that we see that are proportional are between a half and two thirds of the plumbing fixtures. They're between eight and $12,000. That's a typical range we see. So those this is our rule, this is Oh VSDs ordinance 82. So when Mr. Vane came to the, to the district, with his unit after his inspection, and both staff and I have looked at this rule and said, under our rules, you would pay a proportional fee approximately $12,000. I wanted to go back though, and talk a little bit about where this came from. And why we did what we did in ordinance 82. And talk about existing and new units. And so we go back to state law page 105 of your package. Down at the bottom, there's a last couple of lines and it's got to carry over to the top of page one of six. Section II one says notwithstanding subdivisions A to D. An agency shall approve an application for a building permit within a resident who create any one of the following under a it says one accessory dwelling unit and one Junior dwelling unit and then it says the last line on that page if all the following apply. So when you flip the page to page six, and you can mind when it says all the following apply under i The accessory dwelling unit is within the proposed space, and later in that paragraph it says may include an expansion of not more than 150 square feet. So E one A is defining under the state law and exempt adu. Its defining and existing adu conversion space. A little bit further down the page on page 106. Under be about a third of the way down. It says one detached new construction. So paragraph B is defining a new adu and paragraph A is defining an existing Conversion adu. Therein lies the the categorization that we used in developing our code. So estate wrote a regulation. Under there he won a existing type adu and be new adu. That's how they came up with this, this, this distinction between an existing and a new one. So if you go to the next page 107 These three pages are kind of the meat of how the state sort of outlines the existing and the new ad use. And then we're gonna look page there's a paragraph for and it says starts off and it says for an accessory dwelling unit described in subparagraph a before. Recall from our couple of pages back, paragraph a talks about an existing adu. It says later in that paragraph. The district shall not require or impose a related connection fee. So if you read that paragraph, e one a that talks about an existing adu. And then you read this paragraph number four, it's talking about an existing adu. And it says that we not we shall not putting pose or connection for your capacity chart. We've done that in about 120 of the 130 cases that have come into us and said I'm converting a garage and artists studio have some space in my house. We've said okay, you meet the definition of an adu, you meet the definition of an existing conversion of some way shape or form. And so therefore, your fees are waived. The next paragraph down paragraph five says for an accessory dwelling unit that is not described in subparagraph. A, this is kind of state law language doesn't just say hey, how about an existing adu? And how about new ad you? It says well, if you if you describe it in a or if you don't describe it in a paragraph five is basically saying, if you're not described in paragraph a as an existing, you're a new ad. And it says later in that paragraph, it says consistent with section 66013. The connection may be subject to a capacity charge, and it shall be proportion to the burden of the proposed dwelling unit. So we saw a couple of pages back where they described existing a new here in paragraph four, they describe existing and new. And in paragraph five, they say it's got to be proportional there is those are how we come up with the distinctions of some variation of existing conversion and new and how we define up the fees. Yes, change section 6013. You know what that was about? So in sec SEC in Section 66013. It's an entirely different section of state law. And it deals with how an agency comes up with mitigation fees and impact fees. And so it's, you know, in state law, there's, there's work governed by the Sanitary District act of 23. And it's a very small section of the state law. But then there's all these pieces of state law that say, well, but you got to comply with this, and you got to comply with Sequa. And you got to comply with all kinds of other things,
especially notwithstanding any other provision of law.
The other thing that's 6013 doesn't have any bearing on whether or not we can art connection fee for this.
It's about how you can how you calculate the fees. And I wanted to go through that as well. So when we did our ordinance adjustments in April of 21, we sent our ordinance to HCD Housing and Community Development state of California. They called and said, hey, we'd like to have a conference call. They were deep in zoom, and remote work. And so they weren't in the office. And so we set up a conference call Robert and I conference called with three of their attorneys. And they they went through our ordinance at to exhibit five in your package. And it's a it's a it's basically the the modifications to our code that deal with AV and so they went through our ordinance 82 And they had a few very generic questions. Nothing specific. They basically wanted to hear how we applied our word NCT to when we went out and visits
it was a very
easy phone call. They didn't ask any questions, or question our development, our ordinance. They did ask for information as to how we came up with our connection, how the number how we came up with the $16,000 connection fee. So we sent them for the information on how we came up with the fee, how we calculated the fee. Since we had that phone call, and sent an ordinance, and we sent in this package, we have not had a single phone call, or email or contact to us at oviously. Or to Robert at A to Z law, regarding any questions or follow up or any concerns or anything. It's been completely silent since we did the ordinance, and we had our call, and we sent them how we came up with our fees. So we've taken the state law, this paragraph four and this paragraph five, and we convert we translated that into our ordinance, which is on page 139 of your package that talks about exempt and non exempt ad use. And we've applied those rules, specifically to Mr. vanes property and go down and calculated the numbers up with the feet. So there there there's a we've followed the process that has been outlined in our code and how it follows some of the other processes that we follow. The matter before you is to now listen to the presentation from Mr. Vain. And then both of us and Mr. counsel will be available for any questions.
Okay. Do we have any other questions for staff? Don't see the raised hands out there. Good. Well, let's hear from the appellant. Mr. Vane, are you here? on mute?
Yes, yeah, this is uh, this is Rick vane. And I probably like my high
is also here with Mr. Vane. My name is Attorney Nicholas Tomiko. And I submitted the letter of appeal on behalf of Mr. Fan and I'm here with him today as well.
Okay, so who chooses to present the appellants case?
I'll go ahead and I'll go ahead and do that. And I'll I'll start by referring everyone back to the letter which I believe was exhibits. Two in the packet if I'm not mistaken. Appeal letter I sent in. Exhibit
it's exhibit one,
exhibit one, isn't it? Okay.
Thank you. It for her. Oh,
it's 9294 was the it's a it's exhibit one. It's page 92 In your packet Enki.
Insert
so um, I just, yeah, I just want to make sure everybody had a chance to get there. So um, I'll I'll referring everybody back to this letter. Essentially, the essence of Mr. vanes appeal is that despite the regulations that were just described, and the ordinance OVSD 82. ordinance, the Government Code Section six 580 2.2, F. and H refer to the ability of local agencies to charge the connection fees that were just described by the General Manager. And in essence, with regard to the rules put forward by the state. It's Mr. vanes, contention here at this point that the the decision by the OVSD, along with the ordinance that's currently in place, is still violates the provisions of the state adu law, because it does not address one of the two issues that were raised previously to the to the prior ordinance that was in place at the OVSD. The second issue that was raised that has not been addressed is the distinction between direct versus indirect connections. And I'll submit to the board that the law does not allow for any any capacity charges to be charged to an adu if it's not a on a direct connection to the sewer line main. And or if it has not been required by the local district, that they that is the property owner has not been required by the local district to make a direct connection. And so in essence, just referring the board to that language. We believe that because there's there is no direct connection, in the case of Mr. vain and no direct connection with charge, then the the current fees that are being built to him are would not be correct. So as you see in the letter, we, the remedy that Mr. Vane is asking with all due respect to this board, is that they reconsider the state law in light of that point, and that they consider the the distinction between direct versus incorrect indirect connection and in in regards to this matter, and go ahead and rescind the notice of violation until such time as the ordinance can be put into compliance with the state law. And until such time as the general manager, whoever at the district is able to go ahead and make a new calculation for Mr. Vane. That is, in essence to introduce the appeal. I think I'll reserve some of our time for rebuttal. And, and go ahead and take any questions at this point.
Directors have questions. I have some
constant comments, but I'm not sure this is the right time to do it. Okay. Well, during director deliberations might be more appropriate
during deliberations is fine. Sure. Mr. Devika?
I have to go ahead, Director. I can wait. I just have one question is, is there any? Does the appellant have any issue with the fixture count that was developed during the inspection? Um,
I if I may, I'd like to let him just chime in real quickly on that. And just to make sure he feels it was accurate or not.
No, I, you know, when, when Travis came out, and came into the Adu, I invited him and I believe he did a correct fixture count. So if, you know, for some reason that you know, that is in possibility of range, but I, you know, I let him in thinking that, you know, he was just coming into look it over. And I was shocked that he's he told me that he was cuz I asked him, Why are you why are you counting the fixtures? And he says, all because we're going to use that to calculate your capacity charges. And at the time, I thought everything was understood that there would be no capacity charges for my Adu, because there was no direct connection to the utility. So but if that that's is what you're asking if I have I believe that he counted the fixtures correctly, as far as I can tell, but I don't believe that that should be an issue. I hope that answers your question. It does.
Thank you. Okay, I have I have a couple of questions. I'm looking at your notice of appeal letter, Mr. D'Amico. And the first grounds for appeal is that the ordinance does not comply with guns 585 2.2. I have a copy of that in front of me right now. Quite a bit of language there. Could you be more specific as to I have a copy of the government code in front of me? Could you tell me exactly where ordinance fails to meet? Ah, sure.
Um, I'll start by noting that I think in my appeal letter, we had intended to actually direct that with regard to the subsection h here. We had intended to direct that portion of the appeal, at least to the OVSD 83. Which I understand to be a newer version of the of the district's regulations. And to be specific here, under this paragraph, we at least the information that my client and I were able to gather and eventually hearing, or at least at the time I wrote this, I should say, the letter we did not believe that the HCD had written See the copy of the ordinance or that they had made any findings or that they agency? I'd consider those findings. And so that that, I hope that answers the question.
Okay, so, so you're saying that the grounds for appeal, number one, are withdrawing? Well,
no, I'm not saying they're withdrawn. Um, I just I guess I should clarify that we had, we should have written down a OVSD 83. With regard to that particular gram for a pill
is what I'm saying. I'm curious what 83 is, but we'll come back to that.
Yeah, I don't think it Yeah, it. I think we may have mixed things in there. And so we didn't we did not mean to confuse issues,
because our h h talks about submitting a copy of the ordinance to HCD and correcting the ordinance if HCD finds a problem with it. Right. Do you have information, either that the district failed to submit the ordinance timely, or that HCD has directed changes to the ordinance?
The information that we have was that the HCD had directed changes to OVSD 82. And, but we do not believe that the that the HCD has had an opportunity to our knowledge to review of OVSD 83
reads read on it.
I mean, sequentially. HCD sent us a letter that says we want we're we're open to providing you technical assistance to your adu laws. In response to that HCD letter that we received in November of 2020. We passed ordinance 82 In April of 21 and sent 82 to HCD that says, Here, here's your letter from November of 20 Here's our ordinance from April of 21. ordinance 82. And we sent that to HCD. Subsequent to that, ordinance 82. We did ordinance 83, which is actually a fee ordinance that we adopted as part of our rate increase in our budget that we did in June of what when they won and so 83 is a rate ordinance 83 is not an adu HCD ordinance.
So the rates applied to Monthly Service Charges not to capacity charges. Correct.
That corresponds with the rate increase that was approved as part of the budget right last year.
So 83 is not anything to do with ADUs. 83 is purely that's how we adopt fee. Fees is is through ordinances, rather than just adopting a budget. You have to we have to have a companion ordinance that goes with an adopted budget. Anytime we want to change or adjust fees. That's what 83 is. Okay. And we have not received any correspondence to my knowledge in my 11 years here from HCD on a rate,
including 83 Okay, let's go to grounds for appeal number two then Mr. D'Amico. Yes. ordinance violates Government Code 6585 2.2 F. There are a lot of words in F Could you be a little more specific? Absolutely. Heard of f you think is violated? Certainly, um,
let's let me go ahead and go to F here. Um, so, uh, let's taking a look at f care. We go ahead and find the specific portion here.
You mentioned a direct
Oh, here we go. Yeah, it's part four cases. Yes, it's part four. If, if the board can look at Part Four for me, please. The specific language we're looking at is that the district shall not require the applicant to install in newer, separate connection. Let's see here between the accessory dwelling unit and utility or impose a connection and related fee unless the dwelling unit was constructed with a new single family home. And the information I have here for Mr. Vane, is that this is not the case in his in his instance, I see that he was not because edu is not a brand. It's not in conjunction with a brand new home on the same philosophy Okay, that helps clarify.
You started sort of on the second line of paragraph f4. The first line of f4 says, for an accessory dwelling unit described in subparagraph, a of paragraph one of subdivision II. Is it your contention that the adu in question is a conversion of an existing structure on the property? He does. That's what subparagraph a of paragraph one of subdivision E.
I'll let Mr. Vane kind of clarify that since he, he's aware of the conditions of the property better than I am. Also. Sure.
I add something, Stuart. I believe that the provision he's talking about is actually shouldn't be Item five, Item four applies to something within the existing footprint. Right, which you and I both are seeing. And item five, I think he should be talking about item five.
Well, maybe he should. But what about this item for? Now,
we think we
need to clarify I'm sorry. Yeah, we think we think four and five would apply. I just wanted to I wanted Mr. Vane to have a chance to clarify whether or not he fits under the subsection e bridon. For
Well, that's fine. Okay. Let's,
but But yeah,
let's talk about each one at them for a moment.
I don't have all that stuff in front of me. But I think what you're getting to is the, you know, that exemption that's in the California the the California adu law about the exemption for an adu that is being constructed or placed on an existing footprint on the property. And mine. Mine was not on an existing footprint on the property. I can tell you that.
Then, then we're back to F five, which says for an accessory dwelling unit that is not described in E one a. That's correct. We can all agree on that. Yes. Okay. It's not
described is I don't have it in front of me, but I know well enough that it's not described in one of those, those, that code.
Very good. Um, and then. So paragraph five. It was for that sort of an accessory dwelling unit, which is his, we'll call it a new unit as opposed to a conversion. Correct. The local district or the local agency, special district or whatever, may require a new or separate utility connection directly between the accessory dwelling unit and the utility? Yes. To your knowledge, has the district required a new or separate direct connection to the utility?
Absolutely not. Okay.
It says they may. What does what does that mean to you? They might or they might not their choice?
Yeah, I mean, the LV SD could impose could say, you have to make a direct connection to the utility. Right? Okay. Correct.
Did not okay.
Because if and if I may interject, and basically are to finish the argument for Mr. Bean, here, the argument goes is because the the OVSD has not so required, then the calculation based on the drainage drainage fixtures should not, that should not be the basis of a capacity charge for him. Um, and so, in, I'll let, I'll let Mr. Vane go ahead and add any additional details on his property, but that that essentially covers the the argument.
Yes. And, and you'll notice in the code that it says, connection directly between the adu and utility, so that was not mandated by the OVSD. And I did not make a connection to the utility. I got all my permits, everything passed through. I got signed off, I had that occupancy permit, everything is good. And I was surprised to get this this bill from the OVSD. But you that the code says a direct connection. Now, you know, I may be I may be wrong here. But I know. The OVSD ti 83 document, I believe says that the OBS D can change Charge capacity or connection fees for ADUs that have indirect connections to the district sewer system, which is contrary to the adu law. So that's, that's kind of where it's kind of messed up. And you'll notice in the letter that the HCD sent to the OVSD. With copy to the Attorney General, the Attorney General's office, they put in a separate highlighted a sentence that is completely separate from from the other parts of the letter to them. And it says, ADUs, for which no separate connection may be required, and no connection fee or capacity charge may be imposed. Now, there's no separate connection that was required. So that's why capacity fee should not be charged, you can refer to the HCD letter that was sent on November of November 23 of 2020. They only sent three of these letters out to utilities. At that time, I believe they haven't sent out any other ones, but they felt strong enough to write this letter out. So years that are not described in government code 6585 2.2. Subdivision a may be subject to a new utility connection directly between the adu and the utility, which okay, if there was if I had to make a direct connection, then I could be charged. But it then it goes on if such a connection is mandated, then a fee or charges may be imposed, but shall not exceed the estimated reasonable cost of providing the service. So for that reason, these fees are things that you want to charge are contrary to the state law. Because it's I asked her I made an indirect connection. I'll go ahead.
So Kim tacos
instance. But what I'm hearing is says that you know, the issues around direct versus indirect. So just from an engineering cost perspective, if you had made this as a better question of Jeff, if an individual were required to put a direct connection to the sewer main from new adu versus tying that sewer from the new adu into an existing, you know, direct connection, in other words, just build a little short lateral perhaps over to an existing one. It would seem to me that requiring a new direct connection to the main would be far more expensive than a short lateral to an existing
that is our experiences is you know,
I think that almost goes without saying, Jeff and I apologize for interrupting but so it gets to the question in my mind is what's the intent of these adu rules around these connections? It seems to me you know, anybody that's building a new adu. To avoid these connection fees would simply build a lateral to their existing line that connects to the main and avoid all these things. And so no one could ever be charged any of these connection fees under the argument that I'm hearing, because none of them would ever be a direct connection. And so what that would force the districts to do then, is to require of every new adu a connection to the main which would drive the cost up to these adu creators significantly. So I'm, I understand the distinction between direct and indirect but it just seems to me that in this instance by not requiring it, we've actually saved the adu builder in general, not necessarily Mr. Ric Vane but in general You know, all the people there building new IDs, not being required to directly connect or being, you know, are are saving a lot of money by not having to do that. So it seems to me that, you know, if everybody just starts in directly connecting to their, their lateral, and you know, they've avoided all of these costs, which is not the intent of the state, nor of
It's not in the state code.
So I'm, I just
The State Code says may require a connection.
And so the next question I have is to require Mr. of Mr. Quang is, apparently the district did not require a direct connection in this instance. And so, at what point is it possible, Mr. Quang, for the board to retroactively require a direct connection? Since your question
about the board's ability to require direct connection, that would be a potential change to the Code of Regulations. And going back to those sections that General Manager Omer had read off, I think it's important to note that the sections that Mr. Palmer identified he specifically cited, section three Oh 1.4 And the definition for an exempt adu. When you get down to section C of that, which is the operative section here it says an adu is subject to districts capacity charges. They said again, an adu is subject to the district's capacity charges set forth herein if it does not meet the exempt conditions. This is not an exempt Adu, apparently from what Mr. Palmer is saying and through his inspections, and therefore it applies pursuant to the language that your board adopted back in April of 2021. So again, that's the operative language, or question director Bernsen is that if you wanted to require direct lateral connection, that would mean additional research and looking into whether or not we can adopt that within the existing state laws. It says May I agree with Director Quoc and may is permissive, it's not a requirement. So we would have to look into that and make changes to your code of regulations.
If I may talk about this May and how how we look at it. Irrespective of the language, if someone has to go out into the street. The current rutschman are expensive, right? The County of Ventura and the city of Ohio, are very safety conscious and require trenching in the street, they require special paving, they require special backfill, it's a multi day evolution of the process. And so those costs are significant. Depending on the distance cutting out in a street can cost you know $10,000 on up, you know upon the depth of the sewer and so forth. We looked at the may question as sort of a technical one. And and if we require it, we think it's somewhat punitive just to require it. The way I look at the word may is if something on someone's property, because of geology, or topography can't get to the existing lateral. Depending on the location of a house on a lot and whether the lot is sloped and where the adu is located. If it's possible that an adu or any second unit can be connected to the existing lateral and avoid having to go out into the street, we define that as a May condition and allow the person to connect up to their existing lateral, we're not going to require unitive digging and punitive costs in the street, just because if from a technical perspective, the water can flow downhill and use the existing pipe we have required on some second units in the past a separate connection. But that is only in a condition where the county or the city will allow a lot split to occur. And the two units on the house on the block could end up being on different lots and then they should have their own lateral out to the street. But that's a rare condition that that there's a lot split in the future. And so the may sort of implication here is we're only going to require someone to go out into the street, if they have to because of where water flows. They can use the existing pipe that seems to be a reasonable use of an existing pipe and avoid the cost and the expense of going out into the street. So that's how we define and use the word may in this condition and in many others not ad related.
Just add to that there Please go ahead. You're
hearing here as the use of the permissive word may. One is technically engineering topographically. Based, this is proper for your operational staff to read may, in that context, what I refer to as simply the legal permissiveness of that allowed by law. Answer. The director Martin says question verse, it says the same thing. It's just a different basis upon which you exercise the May.
Ken talks,
I believe we're having the detailed discussions that are all based on a fallacy in the logic paper, appellants logic, and I think they've made an error in their interpretation of the law. And I couldn't make some comments on that. I'm a little bit nervous about that. And maybe you can help me on the protocol, because we're close to be in
a really supposed to be doing right now is asking questions to help.
Maybe we should have the hearing first. Because I work as a board. I think we're supposed to be acting as independent arbiter. We listen to all the facts that we make a decision based on the facts. We're not supposed to be jumping into the case of making arguments. Oh, no, I agree. I have a strong argument to make, but I'm not sure this is the right time to do.
I think you're correct. This is not the right time. I think I think what what the appellant and his attorney are now hanging their hat on is a sentence in the HCD letter. I don't see it in code. Code. It's 585 2.2. You can point out to me, Mr. Vane, or Mr. D'Amico, if you can point out to me in the state code, where it says that the only pasady charge that can be assessed is when a direct connection is mandated. And I'd like to hear it in the state code, please.
Yes, it's, it's in there. As I said, it's ADUs that are not described in government code section 6585 2.2, subdivision D, which is where, you know, they set out and they say, you know, it's if you're converting a garage, or you're an existing footprint of some other structure, then it's exempt from the fees.
I think we're all agreed this is not the case a year. That's correct.
So that that is not why my view is exempt. Okay, so it says that's, that's where, so I do not fall under that. If such a so if maybe subject to new utility connection directly between the adu and utility. So I don't fall under the subdivision II, because I it's the adu is not built on an existing structure or a part of you know, like a garage or whatever. Then the the code says, it may be subject to a new utility connection directly between the adu and utility. So I do not have a direct connection to the My adu does not have a direct connection to the utility. It has a short connection to my lateral it's only about 10 feet between maybe less than 10 feet between the adu and my lab. So and then the I hate to probably confusing by stopping and giving comments but if so, the law says if such a connection is mandated, then see a field or this
pose. But stop, sir. Okay, go ahead. Oh, the law does not say if the connection is mandated. Oh, the Mika, would you would you read for us? 6585 2.25. If we all agree, if five is the operative paragraph here.
We agree that it's five.
Please, please read that.
Yeah, we're I think what Mr. Van is talking about is the the first sentence in interpreting that in light of the entire scheme. But yeah, the first sentence is for an accessory dwelling unit that is not described in subparagraph a of paragraph one subdivision that's those are the exempt ones, a local agency, etc may require a new or separate utility connection directly between the accessory dwelling unit and the utility. And then it says consistent with six six, section 6013 connection may be subjected to a connection fee or capacity charge that shall be proportionate to to the burden of the proposed accessory dwelling unit, based upon either its square feet, or the number of its drainage Fixture Unit values, as defined in the uniform public code kamekona defined, and I'm sorry, and adopted and published by the International Association of Plumbing and Mechanical fisheries officials upon the water or sewer system, this fish or charge shall not exceed the reasonable cost of providing the service. So what Mr. Vane is talking about is this is all one operative section here, right subsection, and he's saying the second sentence is connected to the first sentence. So when when it when we're talking about consistent with section 66013, the connection may be subject to a connection for your capacity chart, the V connection that is being referred to here and Mr. vanes appeal is that direct connection which has not been required of him in his case?
I hope that clarifies. So your interpretation of may require is must require if there has to be a capacity charge.
That's our reading of that section. Yes. If there
if there is a direct connection that was required, then consistent consistent with section 66013, the connection may be subject to the capacity charge, and then the DfE account. So like Mr. Vane said earlier, he doesn't have any issue with the DFU account in and of itself, it's that it's a connection that has not been required to them. And so that that's essentially the argument he's making on the interpretations of section here, but I'll let him fill in if he has further fax software on that. But
no, I I agree. That's essentially correct. The I apologize. I was probably reading from an earlier version of the state code. If you have a you know, that's that's the exact wording that I pulled out and paste it into my documents.
That's easy to do. There are many versions of the state pass. Yeah.
So yeah, that's, that's essentially my my point.
soulless unless a direct connection is mandated. No connection need be made, no connection must be made. No connection can be charged or sent out again. Well, this is talking about the connection being subjected to a connection fee, proportional, the load on the system. Are you arguing? There's no load on the system?
No. I'm not arguing.
Okay. Your hearts.
I'm arguing that there was there was no direct connection to the utility.
So,
I do not believe that,
you know, the reading that the code.
I told her the district code, sir, had the state code
and the letter from the HCD there is no direct connection. So there are no fees or charges should be imposed. Are you arguing
that the Board should have imposed a direct connection requirement? Oh, absolutely
not. That's as I say, it's my my connection is like 10 feet into my, you know, from the accessory dwelling unit to my laterals on like, 10 feet away.
I mean, have an estimate of how much do making that 10 Foot Connection saved you relative to a direct connection to the main?
A,
that that would be the I mean, I don't know how much you know, it would cost to make a direct connection to the main but if I made a direct connection at the domain, it would be a minimum of your $12,500 that you want to charge me, I assume. So that my, my short connection to my lateral was a few $1,000, I guess.
Do you have an estimate of how far what the distance was from your adu To the main, just in footage. I mean, what you're saying is you you'd made a 10 foot line allow along with what another, you know, Direct Connect line would maybe event.
Yeah, if I if I made a direct connection from my adu out to the middle of the street. I want to say it's about 100 feet or so out there.
The the capacity charge you realize is separate from the construction of the lateral itself.
Yes, I didn't realize that
the capacity charge would be there in either case.
Yes, but you as the as you're saying you don't you don't charge capacity fees for a conversion of a garage, right.
That's what this rate law says. Yes. Yes.
So that's is? Yes. Correct. I know, I realized that connection fees are different things than capacity charges. Yes, I understand that.
Oh, I don't think so. Oh, they different.
They they I understand that they're different
fees and capacity charges.
Are those the same thing. You know,
there's, there's ours is defined, as you know, a capacity charge. And we charge it at the time of connection. There is a term in state law that talks about impact fees. And, and those are, sound the same but are different. So in the case of this situation, there was a from a technical perspective, from a pipe drainage perspective, there was a 10 foot solution, digging across his front yard, or there was 100 foot solution, which was digging across his front yard, cutting the sidewalk or the curb and gutter, cutting the street, going all the way up to the main it's on the end of a cul de sac. So it's kind of a, you know, it's way out in the street by the time you get out to the manhole out in the middle of street. And I don't know how many feet of that 100 would be dirt in his front yard or versus pavement in the street. But the costs of 100 foot long pipe going out into the street would have been 1000s of dollars. You know, I hate to put a number on it, but I know it's it's expensive to go out into the street and do all the work. Again, we don't require someone to go out in the street, if there is a drainage solution that is shorter and easier. We only require the going in the street. When either a it's the only option from a drainage perspective, or B, it's in some sort of situation where there could be a future lot split and separating the two, two units. So that's how we apply the Mei and that's how we apply these, in this case, it's exempt is no fees. If it if it is an adu and it is non exempt, then it pays a proportional fee. And those are purely based on the Fixture Unit calculations, not based on pipe distance or anything else.
Because the pipe distance is still the responsibility of the parcel owner
connecting the unit to the pipe, whether it's 10 feet or 100 feet is their responsibility entirely.
Understand that Yeah.
Okay. Chair, I have a question. Please go ahead, Mr. alrik.
Um, and this is it not being argued to the best of my awareness at this point. But could I perhaps get an interpretation or a meaning for F to an accessory dwelling unit shall not be considered by a local agency, special district Water Corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new, single family dwelling.
I'll start and maybe Robert can finish. The way we have researched and looked at this. If you look at f a 12345. Before you get to g each of them describes sort of a different sort of situation relating to fees. Three, B, I'm sorry, three a talks about impact fees and relation to 750 square feet. Three B talks about the the word impact fee and says specifically, in fact fee does not include any connection fee. And then we got to four and five, which we've talked about. So going back up to number two, our research says that the dwelling unit shall not be considered a new residential use for purposes of calculating connection fees. That's why I pulled up our files that we've used over the years to the method in how you calculate fees. So when you go through the process of doing the nation the calculating the $16,000 fee, you can't add on, add us in in the the splitting of those fees of the adding of those units into the unit count in any way, changing the unit count, that would then change the actual calculation of a $16,000 fee. This is not something that relates to an individual property, but more in less the actual process of calculating the overall $16,000 fee in our case, that's the way our research has shown all that Robert, way in there.
Cool to see, can I just do a process check at this point in time or you go to your board letter, and you look at page 86 or 80. It's the recommended actions, it goes through the process of the public hearing, just want to make sure that we've got all the sections covered here. Nine, nine cents here hold the public hearing. For the NOP can, we've had the opening of the public hearing pad, the general manager's opening statement. In response to the appeal, we've had the appellants opening statement and presentation of the appeal. Throughout this period of time, we've had rebuttal of the appellants with regards to points made by the General Manager. And we've had so rebuttal from the general manager about points being made by the appellant thus far, you have also gone into subdivision F questions or inquiry of the board directors to both appellant and general manager. So that's all going on at this point in time. Right. So I just want to make certain that we have covered all of those points up to G which is to close the public hearing. Then it says in H the Board of Directors shall deliberate on the appeal. So I just want to make sure that that is the case. And that the question director alrik is requesting is how does f two relate to f5? It's the one that I'm understanding your question. Is that correct? Mr. alrik?
Um,no, I'm just asking for a clarify what it applies to no clarification.
But then if that is his question, I have nothing to add to what Mr. Palmer's already indicated.
Quality.
And I'd also like to Can I make one more point? That question f2 is nowhere to be found in the appeal.
I'm aware that I'm sorry. Mr. Curtis, did you have a question?
Yes. I have a couple questions. First off, I want to know did he get a building permit from the county of Ventura?
Yes, I got a building permit. Everything is all permitted. There's I got my certificate of occupancy. Yeah, everything is is kosher and good.
Will you got that permit? Wasn't there something on that permit that said, I asked you how you were going to sue the property.
And know the time I went kind of like this home. The you know, I I reached out when I when I was I saw that. The Ohio Valley Sanitary District wanted to charge me $16,500 To connect to my to connect to my lateral. I reached out to like a nonprofit sort of organization that deals with these sort of issues when utilities and counties and districts and stuff like that don't abide by adu law. And they wrote a letter to the Ohio Valley Sanitary heuristic and it kind of mediated a bit with a HCD in Sacramento. And with that, you know, they they were looking at your oesd 82 document and saw that you were charging the OVSD was charging the same amount or at us exactly as new Construction, they were charging $16,500 For adu no matter what size or whatever they were charging it as if it was new construction. And that was contrary to the state law. So the lawyer sent a letter to the Ohio Valley Center juicer. And at that point, the, I believe, you guys, the Ohio Valley Sanitary District, gave me a well serve letter. So that enabled me to work with the county and get all my permits done. And it's like, I think that you guys stopped that process of requiring that you know, somebody to sign and pay for those, those capacity charges, connection fees, or whether you want to call them to get a will serve level letter. So he's stopped doing that. And so that's why I got a will sort of letter of Ohio Valley Sanitary District, and I was able to continue my permitting process and get everything permitted with the county. After this, I believe you, the Ohio Valley Sanitary District created the Ohio oesd Dash 83 document, when you started you changed your fee structure to charge proportionality you considered in a new construction to be that $16,500 fee was based on 25 DFUs. So using that the fee structure change and oh OVSD 83. So it was based on 25 DFUs. So a adu that has 25 DFUs use would be charged $16,500. Now, if it's mine has less than 25 DFUs. So you guys wanted to charge me less than that, but I don't know what you would do if the 25 DFU thing is what you charge any new construction. It's a small mobile home, I guess. Or if it's a 12,000 square foot mansion, you would charge a new construction $16,500 I'm assuming that I may be incorrect. But so in this this scenario, for example, if an adu has 26 DFUs, you would charge more than that $16,500 It's just it's just a point I'm making but anyways, the you so OVSD 83. It's the issue of a adu being charged the same amount as a new construction, because and so you wrote in a so you came up with this, the OVSD Sanitary District came up with the idea of this 25 DFUs is the standard and at US will pay a capacity fee in relation to that, depending on how many DFUs they have, related to that 25 DFUs for a new construction. So that was that was fixed. Sort of that issue was fixed. The other issue is that direct versus indirect connection to the utility when there's an indirect connection to the utility that is not permitted to have charges. So it's a completely separate thing, but that was not not addressed in OVSD 83 in OBS 83, as I recall, has put into your in the OVSD 83 code it says that you can charge for direct and indirect connections which is contrary to to the law.
What you're saying is you're not connected to the Ohio Valley Sanitary District.
I don't I do not have a direct connection to the utility Correct. I You have a connection to my lateral,
you don't have an Ethernet? Well, you don't have a direct connection to the router. So you don't have you don't have sanitary service for that. Yes. Talk to the county of Ventura. Because you gave them a statement that you were going to connect to the Ohio Valley Sanitary District, I did connect to the and the county of Ventura knows us. And so they, though we're gonna, you're gonna do that. Well, did you ever come in and get a permit? To do that? When you built the original construction? Was the line inspected?
Say again,
that's I just want to point out I don't know that that necessarily is at issue that the previous permits or previous construction, I think we may be getting a little off topic.
That is a topic. Because the question here is whether you're connected to the Ohio Valley Sanitary or not,
I my adu is connected via short connection to my lateral. Yes, it is,
as you build the unit.
The unit was put in last year. It got his certificate of occupancy in December, no, sorry, October of last year. Go ahead.
What's I don't I don't think that the discussion we're having right now is relevant to the point that's being argued here. If you can show me, Mr. D'Amico and show your show your client f5, which I think is the paragraph we all agree right now is operative here. If you can show me where it says the whole other connections, and be charged for? And I would I would welcome hearing that.
Well, I don't know that that's quite what we're arguing. I think the plain language of Section Five itself, read the way it's read that does not allow for any capacity charges or fees. If the Ohio Valley Soundset Sanitation District has not required Mr. Vain to make a direct connection, which I think we all agree at this point is they did not do probably because there was no technical need for engineering need. Like Mr. Palmer was saying, you know, it would be punitive for probably for the city to do that if it was going to be technically far more expensive. So just to be a little more precise, that's more or less what we're saying. If you look at the code directly, that's our interpretation of it when you read every last word of it. We're not aware of anything in the law, just as a general matter that that would say that Mr. Vane is a private citizen and private property owner is required to pay fees without any legal authority. So I think we think I would say with all due respect, it's the other way around, it's really the burden of the board to show that that the fees are justified, given the length of the code.
Mr. demeco, do you do you in your pursuit of this? I'll say case in this appeal,did you examine any other connections in the district of this district or any other city state where a similar instance occurred? And connection fees were not allowed?
Mr. Vane did some research in that beam. And I looked over it with him. But in our appeal argument is basically a legal one, the interpretation of the code. So it just given the facts of the situation here, even if there were another, were no other situations where this scenario came up, we think that the legal or the legal interpretation that this man is putting forth would be the correct one, just given the plain language of the code there. But um, Mr. Bane can probably elaborate on his findings a little bit more if you'd like. He was able to do a bit of do a bit of sleuthing in that regard and find out from other districts what their policies were, etc.
Yeah, and do your question in my research, you know, I looked at it a few different counties and a few different things and you know, the, it's pretty much all over the board what, what sanitary districts charge for ad use, some do not charge a penny for it. You know, it's just they. And some, you know, they charge up to, you know, somewhere like $2,500 Max or something like that. And some are charging over $10,000. You know, depending on the circumstances, if that's what your question is. That's it was difficult to find all the, you know, they're not as clear or I guess, forthcoming in their, their websites with that information. Yeah. So I wasn't able to do a real good survey of those, that type of information. But I, but what I did was was found that the districts are all over the board. And there's, there's no consistency with how the charges are.
Or I learned from what little I know about it, I would suspect you're right in terms of what they're charged, but I was more curious if you found a specific instance of to where, you know, this splitting between a direct connection versus going to the lateral and then into the main had thereby avoided a connection fee, but it I wouldn't be i It doesn't surprise me we're unable to find something specific like that. But I was just curious if you had
Yeah, that's a great question. And I was not able to, to come up with that information from from my research.
Okay. Thank you. Very directors have additional questions of staff, or the appellant or the appellants, representative. All right, seeing none, then I'm going to close the public hearing.
Well, before we do that, should we offer them to the opportunity to make a last statement? We don't want to cut them off prematurely if if they do. Hey, you're on mute, Mr. D'Amico.
Oh, thank you. Yeah, I was gonna say that's appreciated. I think we're all I think we can submit on the basis of what we said so far, unless Mr. Bean has any details to add but since he knows the facts and the property of course, but
I have something I apologize. I'm just going to reading from some of my notes and stuff like that. It shouldn't take too long. Is that okay? Please go ahead. Alright, thank you. Um, this is out of a the Define HOA law I don't know. But it's regarding government code 658 5.2. accessory dwelling units by first thing is fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter Five commencing with section 66000 and chapter seven commencing with section 66012. That goes on. And accessory dwelling unit unit shall not be considered by a local agencies special district or Water Corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single family dwelling. So that's that was dealt with by this when you guys came up with when the Ohio Valley sanitizer six came up with OVSD 83 You dealt with that? So 82 actually, but who's counting? Okay,
I I apologize for mixing those up. A local agency. A local agencies special district or Water Corporation shall not impose any impact fee upon the development of accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionally in relation to the square footage of the primary dwelling unit. Now my adu is over 750 square feet. So I'm not exempt under that code. Okay, and a B for purposes of this paragraph. impact fee has the same meaning as the term fee is to find as subdivision B of section 66. 000 Except that it also includes fees specified in Section 6647. impact fee does not include any connection fee or capacity charge, local agencies special or Water Corporation. So impact fees are not relevant to our discussion here,
correct? That's very correct. So number four. For an accessory dwelling unit described in subparagraph. A of paragraph one of subdivision II, a local agency special district or Water Corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge unless the accessory dwelling unit was constructed, constructed with a new single family home. So in my case, I knew our separate direct connection between the subject adu and utility was not required. And therefore, a new capacitor connection fee or capacity charge cannot be charged.
Number five, just you just read us F four and now you're skipping to F five. Is that okay? Yeah,
I believe I can stop there. As far as reading that code. So if you had a comment on that,
I think I think we've already have for an f5 by now. Okay. So, once Thank you,
alright, so the X excerpt from the HCD letter, which can be found on on the internet on their site. They, I think I probably read this to you, but ad use for which no separate connection may be required and no connection fee or capacity charge may be imposed. That was directly from, you know, the on the letter from the HCD. Now, you have in your code, you have a something saying that you are able to charge or indirect connection somewhere in your code? OVSD 83, that doesn't say that. I
probably doesn't distinguish between them.
You know, we're, we're talking a lot about state code, talking about 6585 2.2 F and all the paragraphs that go with F. The ruling that staff made. And the ruling that I made, as it relates to this case is based on our code. And that's based on 301 dash four on page 139. And it lists exempt ADUs and non exempt ADUs. And if it's exempt, it's free. If it's if it's not exempt, then we charge it proportionally. So, the appeal is based on our ruling. The appeal is not based on our interpretation of a state code. If if the board wants to have a discussion, make some sort of ruling about whether or not our code complies with state law. That's different than the action that's before you tonight, before you tonight is really an action based on our interpretation of our code as it relates to this specific property. And we've spent a lot of time from the applicants perspective, basically saying our interpretation of state law is wrong. And so from a from a process standpoint, those are two different actions here before the board. One is an appeal based on our actions on 301-4 and a different the applicant is presenting a case that saying our interpretation of state law is wrong, and that's ordinance 82. That was done in April of 2021. So, I pointed out when I did my opening statement about sections four and sections five of state law, just to show you how we got from what was written in state law and how that translated into what we described in ordinance 82 as a realized as it relates to specifics for OVSD. So section four doesn't apply to us in state law, because that's only talking about existing ADUs, do anything related to that paragraph four doesn't apply. Paragraph five is all about new. Paragraph five says there's going to be a connection from the new to the sewer. And we may or may not require it to be a direct connection. But in either case, the connection is subject to capacity charges. That is state law. That is how we've written our code. That is how we made our decision both at the staff level and on my review of the of staffs opinion. Or this case, now there was a question about a wheel serve letter. And I want to just just sort of talk a moment about will serve letters ADUs do not require a will serve letter from the local agency, the city or the county, the county of Ventura has consistently still required ADUs, at us to come get a will serve letter from us, just so that there's some line of communication between the county and OVSD about something going on. They can't mandatory make it happen. And there's no charge for it to happen. In this case, we did we did issue a will serve. In February of 2021. Applicant came to us and said I needed a will serve. I'd like to take it to the county, we issued what we call a conditional will serve. In our review of the case, we knew it was a new adu. And so we wrote a will serve letter that says, here's your will serve will provide you sewer service. But there are going to be some fees due but we don't know what those fees are due. Because we haven't seen plans yet. And we haven't seen the final plan so we can do our final calculations on the on the final fees. So it's a piece of paper that allows the applicant to get through the county process through to a building permit through to building permit. We actually got plans in May of 2021. So after our ordinance 82 had been passed, we actually got plans, we then made accommodations with the property owner to then inspect the property when the unit was actually built. And that's how the process we went from will serve who plans to an inspection to a calculation of proportional fees. And all of that was in compliance with 301-4, which is our rules. And 301-4 we believe is consistent with paragraph five or inscribing new units under the state law. So if there's if there's questions on the board and you want to revisit our ordinance as it relates to the code, we need to kind of set that in motion is a separate process to amend an ordinance. But what's before you today is really just application of that existing ordinance ordinance 82.
Hey, you have any more questions? I got one more.
I liked what's the square footage of that adu.
It's about 870 square feet somewhere around there. It's less than 900.
It's bigger than 750. So it's not exempted on that basis.
That's correct is not exempt on that basis.
And and based on our calculation based on our site visit as 19 Fixture Unit. So let's
say they're building you
that the unit is permitted by the county as an adu is complies with adu laws, both at the county and and us and we've done a count to calculate the fees. So there's no there's no sort of underlying County of Ventura issues on permitting OBS D issues on permitting or serve letters. Those are not in any way sort of in dispute or in the discussion.
Okay, for questions of either staff or the appellant. Good thank you all will now close the public hearing and deliberate on the appeal. Start again, Tashi that you have
offered us our immense oil offer to start. I'd like to just provide some comments to help stimulate the deliberations. I know Jeff, you mentioned that your case based on Ohio Valley sand district's ordinances, but they made their case various primarily on state law So I'm going to respond to that. For me, the outcome of this appeal is determined by my interpretation of two sentences. In Section six five, a. Five of the government code which applies for a standalone adu the first sentence says, a special district may require a new, separate utility connection directly between the accessory dwelling unit and the utility. That sentence says nothing about connection fees. Its purpose is to allow utilities to require a separate utility connection. The implication is that there are several types of connections, new connections, old connections, separate connections, combined connections and tonight I heard direct connections and indirect connections. All of these are connections to a utility, not just connections to a PVC pipe. The next sentence of the code covers a different topic and says the connection may be subject to a connection fee, or capacity charge that shall be proportionate to the burden of the proposed adu. That sentence does not say which type of connection is subject to a connection fee. Its wording does not limit fees or charges only to separate connections. Without any clear limitation. The wording must be applicable to any utility connection to the adu whether through a new lateral or through an existing lateral. So apply the wording from the first sentence, which merely allows utilities to require separate utility connections as a limit on connection fees in the next sentence makes no sense. Installing a separate connection does not change the burden of the adu on the treatment plan. So with this clear interpretation in appealent, pellets, arguments cannot be sustained. And I believe they are wrong. I've been listening very carefully. That's my viewpoint. I wanted the records to know where I was leaning and I don't want the Apollo to understand why at least one director voted away he's probably going to vote and so that's my comments.
Good thank you sir.
Mr. Stone, but
I just took to a point I agree with Richard KenTosh
the end of the day discharging to the system.
After purchase the capacity in the treatment
one pipe or two we've got several instances in the valley where we have more than read stance on pipes
right to Burg thoughts
muted Randy. Randy, you're muted. Okay, I'm back. Oh, there you go.
I do agree with with director Ken Thompson. The comments that he made regarding the power district ordinance under our district ordinance. I believe the connection has been made to us our utility whether or not it's a direct connection to the main or through a lateral water is flowing from the new adu. And, and so is therefore subject to our fees.
Hey, Mr. Martinson.
I was pleased to listen to director Ken Tosh because I thought that was very clear and succinct. I think, in this instance, I think, you know, the district, I think, did the appellant, a big favor by not requiring a direct connection, which by my old engineering guests would have been 20 or $30,000. To do that. I think making this distinction between direct and indirect circumvents the intent of the adu laws. And so, I I am also of the opinion that that this property should be liable for those those that connection fee. Rick
Um, I have a well I can I have a question for director Ken Tosh. Did your
determination and I'm looking at section five there your determination
regarding the second sentence which starts with consistent with section 66 013, the connection may be subject to a connection fee may versus shall or will
Well, in our case, we have opted to charge a connection fee in accordance with this law. So we have the option, we have the option of not charging connection fee if we decide we don't want to do that. I believe that we want to, that's how we fund our operation. Right.
Okay. Um, yeah, that's, thank you. That's all I have.
Director Curtis, any last thoughts?
Yes, I do. I would. One thing we're not talking about, is the fact that these fees that are charged are used so that when a new connection is to the district, they are paying for the lines that were put in the treatment plant the upkeep of the treatment plant that's been there all these years, and they're getting the benefit of them. So why should they get the benefit three?
Okay, thank you for those comments. My feeling
Elsa spoken. Yes. Yes, director.
This very briefly. I feeling is at paragraph f5 has several different topics in it. One talks about wiring the separate utility connection, which is option two, the district did not take that option. Another topic is connections and there must be a connection or we wouldn't be here talking about this adu at all. The connection may be subject to a connection fee, once again at the option of the district. And the district has opted to assess a connection fee. I don't believe that it is anywhere conceivable that it's the intent of the legislature that one can determine as a parcel owner, what his fees would be by how he runs his pipe. I just can't believe that is the intent of the legislature. And I have to I have to agree with director Ken Tosh. We're talking about a connection adds to the burden on the system and a capacity charge would be assessed. Because this is a new adu. It is not a conversion. No one's arguing that point. So it's a new adu subjected to a connection fee or capacity charge at the option of the district. Period. That's very clear to me. Any final thoughts from anyone? When we get into
your two options 289
Me JD NY right I'm trying to get. In our in our agenda, it says you have options. Option one affirm the general manager's ruling,
assess the fee
and authorize the general manager to enforce notice of violation and collection of the fees. Option two is perhaps the appellants appeal and overrule any enforcement of the notice of violation. Collection of fees. Option three, find that the alternative payment provisions set forth in the district code. This is the time payment you've made over a period of time. Is that what we're talking about here? Alternative Payment provisions set forth in chapter 10. Jeff, yes, it's okay. Is unwarranted in this case because of special circumstances. I have not heard anything that says this property owner and appellant has any special circumstances not common among other similarly situated property owners. option four is up in the air. Throw some spaghetti at the wall and see if it sticks or pieces of everything. My personal feeling is option one is the way to go. It requires motion second, the vote of the board.
So may I ask a question about these options? If, if the no, what, what I would like to see in the end is, and what I'm saying is I don't know how these options play out. But here's what my, my personal feeling is about this is that, you know, the appellant should be required to pay the fees, the appellant should be allowed to stretch those over the five years as we do anybody else. You know, they followed through the appeals process and all that. And I don't think that that should, you know, negate the option of paying these fees over the five year period, which is, I think what we have so, you know, if enforcement of the NLV means that the payment has to be made immediately, then I would not be in favor of that. So, does that make sense?
Let's, let's ask them. So have anything to do? Does does option one have anything to do with anything other than the total amount of fee that's due?
No, the way the way? In any appeal, from the moment an applicant raises a question. In sort of practical terms, enforcement tools, it goes on POS. And so overdue fees, interest payments, all those sorts of things completely pause.
If
if you chose option one, we would start with them sending them a letter saying these fees are due, there's no interest, there's no back pay, there's no, there's no penalties or fees, or there's no penalties because we've been going through a proper legal appeals process. There's no there's no penalty for you. Taking advantage of the of the rights you have as a as an appeal. So we would say if option one goes in, we would say these fees are doing payable. If the applicant came in and said, I want a five year payment plan, we would do a five year payment plan. If he said we wanted to pay it off immediately, we would do that we would offer the applicant all of the options that are available. Anybody else the other any other active client? And the only the only caveat is we've spent some time going through an appeals. That's someone's right. There's no penalty for choosing your rights. They don't they do have they do have 60 days to finalize it. Or we start down a path of of enforcement of not paying, you know, not following through. Right. Okay.
Well, thank you for that explanation. So,
bullet payment, or a five year payment plan is a whole separate transaction from anything we're talking about here. Correct. Those options are both are always available to anyone who wishes to connect to the system. Okay, any other other Liberation's that we need to do here?
What one thing I wanted to ask I'm sorry, I just thought of this. Jeff, if, you know, I don't know what the word NLV was, it means if we and I know what it used to mean, when I was an air compliance engineer, it wasn't a good thing. And so what I wonder is if this NLV in any way affect the appellants, you know, insurance rates or, you know, some sort of mechanic's liens or anything, I mean, doesn't have any real meaning other than, you know, just says, you know, you've been through your appeal process, we still feel your the seat fees, and here's your you know, here's your options for payment. Is that really well, it means
that's all it means there is no there's no public posting of notice of violation, all the notice of violation from the Sanitary District means is we feel that there has been a violation of our code. And then, and then we go through the process of remedy. Now, if and we have had a couple of cases in the past. I don't know if we have any currently, but if someone has an N O V, and doesn't come in to solve it doesn't pay their fees, we go through a administrative fine section, which is you know, first letter, second letter, third letter, they're all certified mail. And and you can get to the point after a lot more administrative steps to where we would file a lien on the property. But it that is a long way from where we are today. And there are many many more deliberative steps before a property owner gets to the point Bradshaw have a have left a meeting a lien process. Okay. Okay.
anyone wish to make a motion? Regarding one of the one of the options here? Well, I
would move given the explanations we've just had that we choose the option one, which is which is as described, so great. I will second.
Thank you, sir. Any discussion of the motion to adopt action option one on item 10? Genda. Alright, Alison, let's call the rule.
Dr. Curtis. Yes. Dr. Stone? Yes. You're already know. Dr. Ken Tosh. Yes. Dr. Martinson? Yes. Dr. Berg? Yes. Chair quality? Yes. Thank you all.
Beat that horse about to death. But I'm glad that we spent the time that I did. I don't think anyone could say as deeply as we could have looked. Alright.
toquilla. See, can we just go to back to page 89. And make sure that you cover point three and four at the bottom of the page?
Those Those will do as a result of the of
the hip. I just want to make that
right. Yes. Okay. So issuing a notice of decision within the time period set forth in Section 917 is of the district code will be accomplished by staff and informing the property owner or appellant of his or her rights under Section, one 7.6, if necessary, also to be done by the staff. And the natural outcome of approving option one. Yes. Very good. Thank you for forcing that clarification. Certainly, I would have it under the heart of why you're here. Yep. All right. I do want to thank the appellant and and his representative, for coming to the meeting. I hope you appreciate the time that we have spent. Time to look through all of this. And I'll be with you.
Thank you. You have a good evening.
Sir. Thank you.
Thank you to the honorable board for hearing us out. Have a good night.
