Review of Events Pursuant to Establishing Interim Implementation Procedures

For

The Borrego Water District’s Policy on New Development – Groundwater Preservation

(Policy 2005 – 6 – 1)

 

 

Introduction

The following is a review of events involved in the process of determining when the Borrego Water District’s in-lieu fee for Groundwater Preservation must be paid; arguments that the process was flawed and caused harm to certain applicants for water service from the BWD; and demands for indemnity of aggrieved parties.

 

Background

Some sixty people (hereafter “applicants”) apparently applied and paid for water meters in the days just prior to the Board meeting on Sept. 28, at which an interim implementation procedure for the BWD’s Groundwater Preservation Policy[1], approved by the Board at their regular meeting in June 2005, was to be considered.[2]  Acting on the advice of counsel, the BWD’s general manager, staff, and consulting engineer[3], the BWD Board amended the motion submitted to them for approval by the Groundwater Preservation ad hoc committee[4] to make the in-lieu fee for Groundwater Preservation due and payable at the time of  “issuance of a building permit,” rather than “At the time of application for a water meter” as specified in the motion put forward by the Groundwater Preservation ad hoc committee, and unanimously approved the motion as amended. 

 

The Borrego Sun noted that “The selection of a later point in the development process as the trigger for the payment of the mitigation fee was a surprise at the Sept. 28 meeting.”[5]  A number of those who had applied for water meters in the days just prior to the Board meeting on Sept. 28 appeared at the Groundwater Preservation ad hoc committee meeting on 18 October to protest that they had been misinformed about the policy, had suffered harm thereby, and were entitled to indemnity.  Their arguments and responses thereto are presented below.

 

Arguments and Counter-Arguments

• Applicants argue that they were misled by an article in the Borrego Sun of 09/22/05.[6]

 

• In pertinent part that article states that “Developers or individuals building single family homes within the boundaries of the Borrego Water District will have the option of paying a $4,168 in-lieu fee . . . if BWD directors approve a recommendation from an ad hoc committee at next Wednesday’s (Sept. 28) board meeting.”  This language gives no absolute assurances and makes clear the contingency involved; i.e., it is a hypothetical statement of the form “If X then Y.”  As it happened, the board did not approve the ad hoc committee’s recommendation per se, but changed it; so the antecedent is false and there is no justification for expecting the consequent.

 

• At least one applicant alleges that she was misled by an outdated version of the Policy on New Development (2004-1-1) which she obtained from a display rack in the BWD meeting room.

 

• The document in question was a working draft of the Policy on New Development – Groundwater Preservation, No.2005-6-1.  The “Adopted” block was blank.  While the document was not identified as a draft, and, in any case, should not have been left in the display rack after a superseding document was published and approved by the board,  the subject iteration of the policy, nonetheless, makes no mention whatsoever of an in-lieu fee, much less a date certain for its implementation.  It is, therefore, impossible to understand how it could have been misleading in respect to the latter.

 

• Applicants allege that they received telephone calls advising them that if they applied for water meters before Sept. 28 they could avoid paying the mitigation fees.

 

• It is not clear who made these calls; but, in any case, unless they came from staff at the BWD or someone specifically authorized to speak for the BWD, the BWD cannot be held responsible for such third party representations which amount to no more than rumor and speculation. BWD General Manager Russ Fogarty reportedly opined that “local real estate agents who saw the proposed language. . . advised their clients to file for meters before the policy was formalized.”[7]  If that is true, and if these agents received no explicit, formal assurances from or were not authorized to speak for the BWD, then the BWD cannot be held responsible for representations made by them.  Moreover, these real estate agents, if any, likely breached their professional responsibility to their clients as well by acting precipitously and without due diligence.

 

• Applicants claim that they called or came to the BWD office prior to Sept. 28, and were told by BWD staff members, thus far unidentified, “that they could avoid the mitigation fee if they already paid for their water meters prior to the board’s approval of the policy.”[8]

 

• BWD general manager Russ Fogarty, presumably relying on representations made by his staff, “. . . indicated his staff was telling people that the board had not approved the mitigation process before the Sept. 28 meeting, so its specifics were unknown.”[9] Inasmuch as all of the communications alluded to so far regarding such assurances were apparently oral, this amounts to the classic “he said/she said” situation.  Absent documentary evidence in the form of e-mails, faxes, etc., it will be difficult, and probably impossible, to reconstruct the exact nature and content of these interactions.  If applicants wish to pursue this argument, they must, at a minimum, identify individual BWD employees who they believe where giving unwarranted and false assurances so that the matter may be investigated further.

 

• Applicants demand that, because they were confused about whether the mitigation fee would be charged when applying for a water meter or when a building permit is issued, they be granted a waiver of the mitigation fee.

 

• There is no indication or allegation that there was any intent to deceive applicants on the part of BWD or its employees, or that the latter in any way acted in bad faith.  The remedy demanded is, therefore, excessive and disproportionate to the harm, if any, incurred by applicants.  It would unduly punish all rate payers who would have to make up a minimum of $250,000 lost to the BWD’s Groundwater Management fund.  More important still, it would in turn damage and further delay already long overdue efforts to protect Borrego’s sole-source aquifer.

 

Conclusions

• There does not appear to be language in any of the printed documents reviewed above that would lead a reasonable person to believe that she/he could act with confidence that they could avoid the mitigation fee if they already paid for their water meters prior to the board’s approval of the policy.

 

• The argument that applicants received telephone calls from persons, largely unidentified, advising them that they could avoid the mitigation fee if they already paid for their water meters prior to the board’s approval of the policy, is not compelling.  If this line of argument is to have any validity, then, at a minimum, the person(s) making those calls must first be identified and queried regarding the source and validity of their information.

 

• The claim that applicants contacted the BWD office and were told by unidentified BWD staff members that they could avoid the mitigation fee if they already paid for their water meters prior to the board’s approval of the policy is contradicted by the BWD general manager and,  by inference, BWD staff as well.  There is, at this point, seemingly no independent evidence to appeal to in deciding what actually happened.

 

• Applicant’s demand that they be granted a waiver of the mitigation fee is excessive and disproportionate to the harm, if any, incurred by applicants.  Absent any intent to deceive or bad faith on the part of BWD or its employees; it would unduly punish all rate payers; and, most important, damage and further delay already long overdue efforts to protect Borrego’s sole-source aquifer.

 

• The BWD has offered to refund payments for water meters made by those who believe that they were somehow misled and now, in addition to money they already spent to purchase a meter or meters, face additional, continuing expenses without benefit.  Given that the situation appears to be a result of faulty communication and hasty action based on incomplete information and understanding, that seems a reasonable and prudent course of action under the circumstances.

 

A Kluge for the Glitch

 

At its meeting on Wed., 26 October 2005, the BWD Board of Directors decided to go with the remedy recommended immediately above.  All of this could have been avoided if the Board would routinely think through the repercussions of its actions and were more careful and precise in its use of language.  It could also be helped if the District office improved its document handling, management, tracking, and retention procedures.  The General Manager must also take steps to ensure that all public service staff understand policies that they are responsible for interpreting to the public.  Above all, staff should be given to understand that, if they do not know the answer to a question, they must say that and refer the question to someone in the organization who does know or who has the authority to decide, and not speculate about what the answer might be.  For another example of a similar situation waiting to happen, see Groundwater Mitigation Policy Amended.

---