Supervisors to seek attorney general’s opinion on cable access pass-through fee

LAKEPORT, Calif. – At the end of an hourlong discussion last week the Board of Supervisors decided to ask the state Attorney General's Office for a decision on whether or not a proposed fee to support the county's cable access station is in fact a tax.

The discussion on Tuesday, Sept. 11, centered on a fee to support the Public, Education and Government (PEG) station, TV8, based in Clearlake City Hall.

The board had delayed a decision from its meeting two weeks earlier after questions arose regarding whether the 1-percent pass-through fee on Mediacom subscribers would be considered a tax under Proposition 26, passed in November 2010.

That law considers any fee a tax unless it meets one of seven exemptions, according to County Counsel Anita Grant, who conducted a legal analysis of the pass-through.

One of the ways that the fee could fit the Proposition 26 exemptions was if it was treated as a franchise fee on Mediacom for the use of county property, said Grant. The board could make that finding, she suggested; if not, the fee needed to go before voters.

Supervisor Denise Rushing said that when franchise fees used to be managed by local jurisdictions, part of the deal was to provide public access. She felt that the board could make the franchise fee finding.

“You're also imposing a charge on the public without their permission,” Grant said. “This is largely a factual determination. It's untested.”

Despite its suspect origins – being a way for some big oil and gas companies to avoid environmental cleanup expenses – Grant said Proposition 26 was supported by voters, who want to have a voice about when they must pay a fee.

If the board believed it could tie the fee to the franchise, Grant said they could proceed.

Rushing said Mediacom isn't the only cable company with fees for its users, so it had been tested in that way. Grant pointed out, however, that it hadn't been tested with respect to Proposition 26.

Board Chair Rob Brown said he was sure if they could stretch it hard enough they could get around the law.

“This is for generating revenue for PEG,” he said.

Grant said the board could choose to adopt a rationale put forward by the League of California Cities, which she said had gaps.

Rushing said it was not about getting around the law. Brown said it was, that she was trying to now say the fee was not a revenue generator for the station. He said every presentation about the fee has focused on revenue generation.

“I feel it's a tax,” said Supervisor Jim Comstock.

The station's funding goals expect the pass-through fee to generate $55,000 annually. He said the funding goals are to tax people.

“It's really so gray at this point,” said Supervisor Jeff Smith, who also sits on the PEG Board. He said they needed a conclusion about the fee that was more black and white.

Grant said she could ask the California Attorney General's Office for an opinion. She also put it out for opinions from county counsels around the state and received a limited response. The main one she got referred to the League of California Cities' position, but didn't necessarily support it.

She said the government has in the past called taxes fees. “You can call it a fee or a charge, but that doesn't make it so.”

Grant said if the purpose was to simply raise revenue, it's a tax, based on the California Supreme Court's findings. She added that Proposition 26 has made everything a tax.

Board members agreed that it would be helpful for Grant to seek an opinion from the attorney general, which Brown said it would prove especially beneficial if the attorney general had all of the background information that has been presented to the board about the fee being a revenue generator.

Supervisor Anthony Farrington, who also supported getting the attorney general's perspective, said, “It does get murky.”

Grant said many similar issues were being challenged by taxpayer groups. She noted that Mediacom's legal counsel also held the fee was a tax, which Farrington said he didn't find surprising since the company would consider that the fee would make them less competitive in the cable market.

“There are valid views on both sides of the aisle here,” said Grant.

She said the law hasn't been tested. “All of us in the legal community are expecting a lot of litigation on this proposition.”

Rushing said they needed to separate the pass-through fee issue from the station itself. Over the last several years the station has been the center of controversy over programming, and has seen clashes between the PEG Board and volunteers, even leading to a brief station lockdown by city management.

The issues, according to Rushing, were whether PEG TV is worthy of funding versus the collection of the franchise fee, which once upon a time had been the county's responsibility to negotiate. That the fee negotiation is outside of the county's hands is “a real problem,” Rushing said.

If it's a franchise fee, the county has a decision to make about how to apply the fee. Rushing said the separate decision is if PEG is worth it.

Clearlake City Council member Joyce Overton, who chairs the PEG Board, told the board that the pass-through was a fee, not a tax. “There is no question here, it is a user fee.”

Brown asked Overton if PEG was available online. Overton said no, and if the station got the fee, they can't put it online – contradicting comments she’d made to the Lakeport City Council on July 17. As such, if someone wanted to view programming, they would have to watch it on television, she said.

Overton said the user fee would pay for a manager, equipment and accounting. If the station somehow came by other funding, she said they would drop the fee, but she said that wasn't going to happen.

During public comment, several community members – including past volunteers – spoke on the pass-through fee, with the majority of them raising questions about it and opposing it.

Phil Mathewson – attired as a pirate and reading from a scroll, his comments peppered with “arg” – said the channel could be run by volunteers, and that the board shouldn't burden subscribers with more fees.

Dante DeAmicis said there was a much clearer problem with the pass-through; he said while the county and city of Lakeport are on a state franchise agreement, Clearlake is on a local franchise agreement until November 2012.

As such, DeAmicis suggested that the ordinance would have no authority over the city of Clearlake until late next year, and Clearlake subscribers would be able to seek a summary judgment from the courts to set the fee aside.

Eileen Gieser said she didn't feel the fee was appropriate, and she knew many people who didn't watch it.

“We already have a lot of channels we don't like. We don't want to have another one added,” she said.

With it not being put online, Gieser said it wasn't really public access, but was for a small private audience. Meanwhile, the fee would continue to go up.

Allen Markowski, who was the station's volunteer manager for three years, said the pass-through absolves all governments and the PEG Board from responsibility over the station.

Markowski said he had been given authorization to purchase a $10,000 piece of equipment for the station that still isn't being fully used. He compared it to using shovels when a backhoe is available.

“They're not using the equipment that they have. Funding is not the problem. They don't know how to use what they already have,” said Markowski, adding that the station's true assets are its volunteers.

Beth Kaiman, a station volunteer, said the pass-through is the last ditch effort to get funding. She accused the Board of Supervisors of ignoring the station.

Lakeport resident Marilyn Johnson raised concerns with the franchise agreement, and the fact that she already pays nearly $4 a month for a franchise fee. She said she doesn't wish to pay another tax or fee, especially at a time when Lakeport is seeking sewer and water rate increases.

Overton said the pass-through doesn't have anything to do with franchise fees. She said the station wanted to hire professional staff and buy better equipment.

She said many of the people who have issues with the stations are volunteers who were taken out due to “inappropriate behavior.”

“This is going to be a wonderful station,” she said.

Overton said the station is running on $5,000 a year and its equipment is starting to fail. “We need to just move with this. We need to get this going.”

A budget document from the city of Clearlake showing PEG’s revenues and expenditures indicated that the station’s revenues have been two to three times Overton’s estimate over the last few years.

She said the board had agreed to institute the pass-through fee if the two cities did so, and she said the board needed to fulfill its obligation.

Farrington asked her how much the fee would be on average for customers. She estimated 35 cents on each bill.

Overton said the big need is for equipment, but the station also needs a professional manager. The volunteers “don't know what they're doing,” she said.

Farrington said the cities' support weighs heavily with him, but he wanted the attorney general's opinion before moving forward, adding that he thought it was better to err on the side of caution.

Rushing said she also had previously asked for a plan to be in place to show community support for the station. “I haven't seen the plan.”

Overton said it was hard to make a specific plan when there is no specific agreement yet.

Smith said there would be a huge difference if a paid staffer was running the station. He said he was amazed that the volunteers had hung in as long as they had.

In response to Overton's comments about a board obligation to support the station, Brown said that the majority of the board had decided that they would support the fee if the cities did, too.

However, he said he was concerned after two Lakeport City Council members contacted him, telling him that the council was told that they were the final link, as the county had already approved the pass-through.

At the Lakeport City Council’s July 17 meeting, Overton had stated that both the city and county had offered “general consensus” to support the pass-through if Lakeport did.

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Written by: Elizabeth Larson

Published: 17 September 2012

Lakeport City Council to host Sept. 18 hearing on proposed water, sewer rate increases

LAKEPORT, Calif. – Next week the Lakeport City Council will hold a public hearing on proposed water and sewer rate increases, with many city residents already lodging their complaints against the plan.

The meeting will take place beginning at 6 p.m. Tuesday, Sept. 18, in the council chambers at Lakeport City Hall, 225 Park St.

Over the next five years, the city is proposing to more than double both water and sewer rates, a step city officials say is necessary due to regulatory demands, failing infrastructure and the increasing costs of providing the services to customers.

City Manager Margaret Silveira said the city has been looking at its rate structure for four years, and that it hasn't kept pace with operations costs or system needs.

She said a small portion of the proposed rates cover overhead and operations.

“All of the prices have gone up for everything, and we have not raised our rates for quite a few years,” she said.

The city said rates are its primary sources of revenue for the water and sewer systems, paying for power, treatment chemicals, equipment and vehicle maintenance, administration, debt service, replacement, upgrades, rehabilitation, and improvement of the water and sewer system infrastructure including land and structures.

Over the summer, the council gave city staff the go ahead to send out a Proposition 218 notice to the roughly 2,200 parcels that would be affected by the increases.

For a basic rate comparison, based on the Proposition 218 notice, residential water rates that now are $17.45 per month for a 3/4-inch pipe and up to 10 CCF (a CCF is 100 cubic feet of water) would rise to $34.85 by January 2017, while a 1-inch pipe with up to 20 CCF would go from $34.87 per month to $69.70 over the five-year period.

On the sewer side, over the coming five years north customers would see bills go from $35.41 per month to $74.25 monthly, while south customers would see rates increase from $46.79 to $74.25 each month.

A full rundown of the rate increases for residential, multifamily and commercial customers can be seen in the documents posted below.

The proposed rates are the result of a comprehensive yearlong rate study completed by a consultant the city hired, city officials reported.

The study was meant to define the revenues needed to meet operating and capital improvement needs for both the water and sewer systems. It also considered funding capital projects identified in the 2008 Water and Sewer Master Plans, and provided options to encourage customers to conserve water.

Silveira said Lakeport has one of the county's lowest water rates, and some of the best water. In order to keep that quality and avoid paying fines instead of paying for system projects, the rates have to increase, she said.

She said the city recently received a new sewer permit from the state, but that came with heavy mandates, including a number of system improvement projects. The city only is proposing to do the projects that the state says must be done, she said.

There are a total of 10 sewer and water projects, for which the Lakeport City Council recently accepted a mitigated negative declaration.

The projects include payment for the acquisition of the Green Ranch, where two critical groundwater supply wells for the city are located; updating automated water and sewer control systems; construction of a new closed loop water main from South Main Street to Parallel Drive; replacement of water meter devices with lead free remote read meters; removal of sludge from a sewer treatment pond; upsizing of an undersized Main Street sewer line between Clearlake Avenue and Sixth Street; replacement of the flood prone Clear Lake Avenue Sewer Lift Station; and replacement of the dilapidated 72-inch sewer main conduit under Highway 29 between Parallel Drive and Bevins Street, the city reported.

There is no deadline for completion of the projects, Silveira said.

Silveira and Utilities Director Mark Brannigan said the city also has applied for a long-term low interest rate loan, and a $2 million grant from the US Department of Agriculture Rural Development. Silveira said the USDA has tentatively approved all of the projects.

They said the sewer and water rate increases are needed as part of the loan and grant application process.

If that funding comes through, Brannigan said it will be put toward principal repayment for the projects. He said a $1 million loan could reduce a customer's bill by about $1.15 per month.

Brannigan said that if water users conserve, it's possible that they may not see an increase in their bills.

He said the proposed increases include depreciation, which the city hasn't implemented before. Essentially, depreciation is planning for equipment to fail, and a way of putting money aside for that eventuality in order not to have to borrow money.

Brannigan said the city is looking for ways to support itself in the future without placing undue burdens on ratepayers.

He said state officials are now wanting to see capital improvement plans as part of their system inspections.

That's because infrastructure is failing across the United States, which he partially attributed to it being “out of sight, out of mind.”

He said Lakeport has some old, undersized infrastructure, some of it dating back to World War II and even earlier. While much of it has been replaced, some still remains, as the city hasn't had the revenue to do an entire replacement. He said the city tried not to deplete its resources in making the upgrades.

The council could go forward with making the decision at the Sept. 18 meeting or hold off, Silveira said.

The agenda for the meeting includes the adoption of the proposed resolutions to implement the new sewer and water rates.

“The longer this gets postponed, the more it's going to cost us,” Brannigan said.

Push back on increase proposal

Critics of the proposed rate hikes say they comes at a time when many Lakeport residents are ill-equipped to pay the increased costs.

As of Tuesday, Silveira said the city had received approximately 169 protests. She said that response “is on the high side.”

Silveira said the city will present information on the proposed rate increases and take public input at the Sept. 18 meeting. Written comments will be taken up to the meeting, but Silveira said comments must be submitted in writing, in hard copy form, and not emailed.

Lakeport resident Bob Bridges, who also works as a deputy county counsel, has been waging his own campaign against the increases.

He's written protests to the city, along with numerous letters to the editor. Bridges also has gone door to alert his neighbors and other community members about the proposal, which he said will seriously burden city residents.

Another Lakeport resident, Karen Ford, said in a letter to Lake County News that she was outraged by Lakeport's proposal, to which she had formally responded in writing. Ford also pointed out the numerous taxes and assessments people are facing at this financially challenging time.

Attorney Ed La Velle, who lives in Lakeport and also has his law office there, was another one of those who submitted a letter opposing the rate increase proposal and criticizing the city's rationale.

“I'm surprised by the grassroots grumbling that I'm hearing,” he said.

While La Velle said he did not remember the last rate increase, he suspects that the city is trying to establish water on the S. Main Street corridor, “which in turn is aimed at trying to incorporate that part of the county into the city, which would lead to increased revenues,” he told Lake County News.

Pointing to the “ongoing battle” between the county and city over that corridor, La Velle said he didn't feel that the city “is being forthright in identifying that aspect of the agenda.”

That S. Main Street corridor and the city's desire to annex it has become a sore point between the city and county due, in part, to it being the county's most lucrative area for sales tax revenue. Silveira said that the annexation issue isn't currently on the table.

The city has, however, maintained that it won't open water service on that corridor to customers not within its city limits. La Velle questioned why the city wouldn't open the area to businesses and allow them to carry more of the burden.

La Velle also questioned another city justification for the rates, the need to increase compensation for city employees. He said he took a look at the compensation and feels that they are already compensated at a very high rate, particularly in the current economy.

He doesn't feel the city's notification of the proposed rate increases was aimed at alerting people that if they opposed the hikes hey needed to actually lodge an objection.

He also questioned why the city wouldn't allow people to email complaints, instead requiring printed documents to be delivered or mailed to the city. He suggested that it wasn't odd, however, if the city didn't want input.

He said he's been asked by several people if he will be at the Tuesday meeting to speak. He said the whole matter seems like a fait accompli.

La Velle said he considers himself apolitical; however, if the rate increases pass he wondered if there will be political fallout for sitting council members seeking reelection this fall.

For more information about the proposed rate increases community members are invited to call the City of Lakeport Water and Sewer Utilities Department at 707-263-3578.

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Lakeport Water and Sewer Rates Summary ReportLakeport Sewer and Water Rates Prop 218 Notice

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Written by: Elizabeth Larson

Published: 13 September 2012

Cow Mountain Recreation Area to remain closed due to Scotts Fire

THIS STORY HAS BEEN UPDATED DUE TO NEW DEVELOPMENTS WEDNESDAY MORNING.

LAKE COUNTY, Calif. – The Bureau of Land Management said the Cow Mountain Recreation Area will remain closed this week due to a wildland fire burning in the area since last Friday.

The agency shut down much of the recreation area in response to the Scotts Fire, burning since Sept. 7 on North Cow Mountain, between Scotts Creek and Scotts Valley Road.

As of Wednesday morning, the fire was being held at 4,618 acres, with 75 percent containment, Cal Fire reported.

BLM said the closure covered both the South Cow Mountain Off-Highway Vehicle Area and the North Cow Mountain Recreation Area, and included the Glen Eden Trail, Valley View Trail, Mendo-Rock Road at Mill Creek Road and Mendo Lake Road at both Mill Creek Road and Scotts Creek.

Rich Burns, field manager for BLM’s Ukiah office, said the area was restricted for the safety of the public and firefighters.

“We had a lot of people who basically came up and were interested in seeing what was going on with the fire,” he said.

Burns had anticipated that South Cow Mountain would be reopened on Wednesday. However, on Wednesday morning, he said the area was to remain closed until Monday, Sept. 17.

With much of the fire on North Cow Mountain, he said that area also was to remain closed until further notice.

Burns estimated that the bulk of the scorched acreage – more than 3,000 acres – was BLM land.

Most of it is open space, but he said there were serious concerns for infrastructure on the land, including cell towers and an FAA communications tower that is critical to controlling West Coast air traffic.

“It seems to be protected, at least for the time being,” Burns said.

Cal Fire spokesman Mike Carr said early on in the incident firefighters did a lot of work to protect the tower. He said firefighters continued to protect the facility.

Chief Tim Streblow of Cal Fire’s Sonoma-Lake-Napa Unit told the Board of Supervisors on Tuesday that the tower, a critical pass off point between airports in Seattle and Oakland, had brush built up around it when the fire started. He said firefighters cleared around the tower to help protect it.

Streblow said a Homeland Security installation on Cow Mountain also was protected during the firefighting effort.

For more information about Cow Mountain visit www.blm.gov/ca/st/en/fo/ukiah.html .

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Written by: Elizabeth Larson

Published: 12 September 2012

Lakeport Speedway cancels Bomber championship, Bomber Bash due to fire base camp presence

LAKEPORT, Calif. – The Lakeport Speedway is canceling its Friday and Saturday races – including much-anticipated championships – because the county fairgrounds currently are housing the incident base camp for a wildland fire on Cow Mountain.

David Furia of the Lakeport Speedway management team said he received confirmation that the Lake County Fairgrounds, located on Martin Street in Lakeport, won’t be available in order for the weekend races to take place.

Cal Fire returned last week to locate its base camp for the Scotts Fire at the fairgrounds. Last month the agency also had been based there during the Wye Fire incident.

Lake County Fair Chief Executive Officer Richard Persons said Cal Fire had not given him a firm date for when it would be vacating the fairgrounds with regard to the Scotts Fire.

“The prediction this morning was that they would be here through Saturday and possibly into Sunday in some capacity,” Persons said Tuesday.

Cal Fire has estimated the Scotts Fire would be fully contained this Saturday. Incident Commander Eric Hoffman told the Board of Supervisors on Tuesday that Cal Fire was planning to keep the fairgrounds available to firefighters as a place to rest, since many of them have been on fire lines around the state for weeks.

“There’s enough activity that it was clear there would be no way to have a race on Friday night, and the possibility of having one on Saturday night was pretty sketchy,” said Persons.

Furia said Friday’s Bomber points race had been meant to make up for a race that was canceled on Aug. 18 during the Wye Fire.

On Saturday, the speedway had been set to host the 10th annual Marlene Baker Memorial Bomber, which Furia said brings a lot of cars to town from all over Northern California.

The $2,500 Bomber Bash purse is the largest in the state, according to Furia. The evening of racing also was set to include Bandoleros, Legends and boat races.

He said it’s the biggest race of the year. “It financially supports the track itself,” Furia said, adding, “It’s devastating for us personally.”

Person said that the fairgrounds is being used entirely by firefighting operations, with the exception of the area used by the Konocti Christian Academy.

He said that for the Wye Fire there was approximately 9,000 square feet of indoor space used in two buildings; the Scotts Fire operation is using 23,000 square feet in five buildings.

Both operations have used the entire Baldwin Pavilion, which is 25,000 square feet, Persons said. For the Scotts Fire, there also has been expanded use to include the infield of the race track and the south lot, which was used for RV camping during the Lake County Fair.

Furia, who now also runs Ukiah’s speedway, had considered moving the race there, but said in the end it didn’t pencil out financially.

That’s mostly because the Ukiah fan base isn’t as large or devoted as Lakeport’s. Furia said Lakeport’s attendance is more than double Ukiah’s. Lakeport averages between 1,000 and 1,400 attendees during the season, with July racing events seeing attendance closer to 3,000 people per night.

Persons said the fairgrounds is going to work with the speedway to try to reschedule the weekend races, but Furia didn’t think it was possible due to the potential for rain as the fall advances.

With the the weekend race cancellations, Furia said the season is over for the Bombers and for the Modifieds.

Furia said the October Classic still is set to take place Oct. 13-14, and a rock crawling show is set for Oct. 29.

Persons said this was the first time in his 16 years with the fair that races had to be canceled for emergency circumstances. In the past weather has caused race cancellations.

Persons thanked the community for its support and patience while the fair fulfills its “community emergency relief role.”

Visit the Lakeport Speedway online at www.lakeportspeedway.com .

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Written by: Elizabeth Larson

Published: 12 September 2012