HomeMy WebLinkAboutMINUTES - 12092008 - C21 (3) i CLAIM
BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY
BOARD ACTION: DECEMBER 09, 2008
Claim Against the County, or District Governed by
the Board of.Supervisors, Routing Endorsements, NOTICE TO CLAIMANT
and Board Action. All Section references are to JThe copy of this document mailed to
California Government Codes. j� you is your notice of the action taken
J� on your claim by the Board of
NOV 0 7 2008 Supervisors. (Paragraph IV below),
given Pursuant to Government Code
COUNTY COUNSEL Section 913 and 915.4. Please note all
AMOUNT: $253.345.00 MARTINEZ, CALIF. "Warnings".
CLAIMANT: C & H SUGAR COMPANY, INC.
AMERICAN SUGAR REFINING,. INC.
ATTORNEY: JOHN T. BULLOCK DATE RECEIVED:. NOVEMBER 07, 2008
COBLENTZ, PATCH, DUFFY & BASS
ADDRESS: ONE FERRY BUILDING, SUITE $10DELIVERY TO CLERK ON: NOVEMBER 07, 2008
SAN FRANCISCO, CA 94111-4213
BY MAIL POSTMARKED: NOVEMBER 06 ' 2008
FROM: Clerk of the Board of Supervisors TO: County Counsel
Attached is a copy of the above-noted claim.
NOVEMBER 072008 DAVID TWA, CI
Dated: . By: Deputy
II. FROM: County Counsel TO: Clerk of the Board of S ervis s
(tis claim complies substantially with Sections 910 and 910.2.
( ) This Claim FAILS to comply substantially with Sections 910 and 910.2, and we are so
notifying claimant. The Boardcannot act for 15 days (Section 910.8).
rn"no+ be-
(q'Claim-isnot timely filed.
s `/ �^
(%, Other: Se-e— I�� J` y- o l�.oL.,)h ,0L.) r2 G✓ 1 ✓l
Izt /W Ck alai e n ur V. Y. 3.
-n-)f, Court w i4s i4, G,le��~A C>neQ
Dated: i3y: no Deputy County Counsel
III. FROM: Clerk of the Board TO: County Counsel (1) County Administrator(2)
( ) Claim was returned as untimely with notice to'claimant (Section 911.3).
IV,,4fOARD ORDER: By unanimous vote of the Supervisors present:
This Claim is rejected in full.
O Other:
I certify that this is a true and correct copy of the Board's Order entered in its minutes for
this date.
Dated4e,&r; 6e.1 o,Q 449f&ID TWA, CLERK, By Deputy Clerk
WARNING(Gov. code section 913)
Subject to certain exceptions,you have only six(6)months from the date this notice was personally served
or deposited in the mail to file a court action on this claim.See Government Code Section 945.6.You may
seek the advice of an attorney,of your choice in.connection with this matter. If you want to consult an
attorney,you should do so inunediately. *For Additional Warning See Reverse Side of This Notice.
AFFIDAVIT OF MAILING
I declare under penalty of perjury that I am now, and at all times herein mentioned, have
been a citizen of the United States, over age 18; and that today I deposited in the United
States Postal Service in Martinez, California, postage fully prepaid a certified copy of this
Board Order and Notice to Claimant, addressed to the claimant as shown above.
Datet&"rr X&-91/0. ,2o PAVID TWA, CLERK, By � deputy Clerk
r�s-
This warning does,not apply to claims which
are not subject to the California Tort Claims
Act such as actions ininverse condemnation,
actions for specific relief such as mandamus or
injunction,or Federal Civil Rights claims. The
above list is not exhaustive and legal
consultation is essential'to understand all the
separate limitations periods that may apply.
The limitations period within which suit must
be filed may be shorter or longer depending on
the nature of the claim. Consult the specific
statutes and cases applicable to your particular
claim.
The County of Contra Costa does not waive any
of its rights under California Tort Claims Act
nor does it waive rights under the statutes of
` limitations applicable to actions not subject to
the California Tort Claims Act
ec.
.,_
l
OFFICE OF THE COUNTY COUNSEL SEL SILVANO B. MARCHESI
COUNTY OF CONTRA COSTA COUNTY COUNSEL
Administration Building
651 Pine Street, 91"Floor SHARON L. ANDERSON
Martinez, California 94553-1229 = ,. CHIEF ASSISTANT
(925) 335-1800 O i3kS11`� 4 i� GREGORY C. HARVEY
(925) 646-1078(fax) � �'� 'p VALERIE J. RANCHE ASSISTANTS
•, �vtik
T,9 coux'�
STATUTORY WARNING PURSUANT TO
GOVERNMENT CODE SECTION 911.3
December 1, 2008
TO: John T. Bullock
Coblentz, Patch, Duffy&Bass
One Ferry Building, Suite 200
San Francisco, CA 94111-4213
RE: Claim of C&H Sugar Company, Inc. and American Sugar Refining, Inc.
Please Take Notice as Follows:
The claim you presented to the Contra Costa County Board of Supervisors by mail on
November 6, 2008 was reviewed by County Counsel. The portion of the claim prior to November 6,
2007 was not presented within one year after the event or occurrence as required by law.
Because you allege timeliness based on the payment of the tax bills, the claim is "timely on its
face" and will be reviewed and acted upon by the Board of Supervisors within the statutory time
period. To preserve the rights of the County, its departments and employees to challenge the validity
of the timeliness of your claim, you are warned pursuant to statute that if your argument is improper,
your claim is late because it was not presented within one year after the event or occurrence as
required by law. (See Gov. Code, §§ 901, 911.2.)
SILVANO B. MARCHESI
COUNTY COUNSEL
By:�-�lg 7 7 62"
Monika L. Cooper
Deputy County Counsel
Page 1
CERTIFICATE OF SERVICE BY MAIL
(Code Civ. Proc., §§ 1012, 1013a, 2015.5; Evid. Code, §§ 641, 664)
I am a resident of the State of California, over the age of eighteen years,and not a party to the within action.
My business a dyesce of the County Counsel, 651 Pine Street, 9th Floor, Martinez, CA 94553-1229.
On 2, is Offi
t , I served a true copy of this Statutory Warning Pursuant to Government Code
Section 911.3 by placing the document in a sealed envelope with postage thereon fully prepaid, in the United
States mail at Martinez, California addressed to John T. Bullock, Coblentz, Patch, Duffy& Bass, One Ferry
Building, Suite 200, San Francisco, CA 94111-4213, as set forth above. I am readily familiar with Office of
County Counsel's practice of collection and processing of correspondence for mailing. Under that practice,it
would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the
ordinary course of business.
I declare under penalty of perjury under the laws of theS ate oWlifornia and the United States of America
that the above is true and correct. Executed on I , at Martinez, California.
Paula ebb
cc: Clerk of the Board of Supervisors (original)
Risk Management
Page 2
COBLEENTZ, '
PATCH,1, D U F F Y One Ferry Building.Suite 200 main: 415.391.4800
&BASS LLP ATTORNEYS San Francisco,California fax: 415.989.1663
AT LAW 94111-4213 web: www.coblentzlaw.com
John T.Bullock
Direct: 415.772.5706
Email: jtb@cpdb.com aa pp��
RECOVER
November 5, 2008
NOV 0 7 2008
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO.
Clerk of the Board of Supervisors
Contra Costa County
County Administration Building, Room 106
651 Pine Street
Martinez, CA 94535 y
Re: Verified Claim for Refund of Sewer Service Fees Collected
by Contra Costa County on Secured Property Tax Bills
for the Fiscal Year 2007-2008.
Dear Honorable Supervisors:
This firm is legal counsel to C&H Sugar Company, Inc. ("C&H") and American
Sugar Refining, Inc. ("American Sugar"). C&H and American Sugar are referred to
herein, collectively, as "Claimant". C&H is the property owner and taxpayer with respect
to the parcels and Tax Bills discussed below. American Sugar was the paying agent for
C&H with respect to those Tax Bills and, on behalf of C&H, paid those Tax Bills as
discussed in greater detail below.
On September 7, 2007 and September 21, 2007, Contra Costa County (the
"County") issued secured property tax bills (the "Tax Bills") to Claimant as follows:
Tax Bill No. Parcel No.
07260510 354-011-002-4
07349780 354-122-008-9
07260798 354-080-001-2
07349778 354-094-006-5
Each of these Tax Bills included an assessment described as "CROCKETT
CSD-SAN." Claimant is informed and believes that these charges (the "Sewer Fees")
were for sewer-related services and were imposed by the Crockett Community Services
13183.001.9730530
COBLENTZ,
PATCH, DUFFY
&BASS LLP A7 LA W EYS
Clerk of the Board of Supervisors
November 5, 2008
Page 2
District (the "District"). Claimant is further informed and believes that these Sewer Fees
were placed on Claimant's Tax Bills and collected by the County at the request of the
District.
On December 7, 2007 and April 7, 2008, Claimant paid the taxes and
assessments identified on the Tax Bills in full. However, Claimant protested the
imposition of the Sewer Fees, and paid those fees under protest, on the grounds that
the Sewer Fees were improper and illegal. The bases for Claimant's protest of these
fees are set forth in greater detail in letters that accompanied each payment.
(Claimant's "payment-under-protest" letters are attached hereto as Exhibit A and
incorporated herein by reference.)
The Sewer Fees are improper and illegal for all the reasons stated in the
"payment-under-protest" letters, and for all the reasons stated in the First Amended
Validation Action, Verified Petition for Writ of Mandate and Complaint, filed by C&H
against the District in Contra Costa Superior Court, Case No. 07-1747 (the "Lawsuit").
(A copy of the Lawsuit is attached hereto as Exhibit B and incorporated herein by this
reference.)
Because the imposition of the Sewer Fees by the District and collection of the
Sewer Fees by the County were improper and illegal, Claimant hereby requests a
refund of all amounts paid for the Sewer Fees as follows:
Tax Bill No. Parcel No. Refund Amount
072605101 354-011-002-4 $249,135.00
072605102
073497801 354-122-008-9 1,912.00
073497802
072607981 354-080-001-2 1,903.00
072607982
073497781 354-094-006-5 395.00
073497782
TOTAL REFUND DUE $253,345.00
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPATTL�AW EY1
Clerk of the Board of Supervisors
November 5, 2008
Page 3
Accordingly, for the reasons set forth above and in the "payment-under-protest'
letters and the Lawsuit, Claimant requests that the County immediately refund the
amount of$253,345.00 to Claimant.
Finally, Claimant advises the County that it is simultaneously presenting a
request for refund in the same amount to the District.
Very truly yours
John T. Bullock
JTB:mwa
Attachments
cc: Kenton L. Alm, Esq. (w/o attachments)
Jennifer E. Faught, Esq. (w/o attachments)
COBLENTZ,
PATCH, DUFFY
&BASS LLPAAf mAWE"S
VERIFICATION -OPERATIONS
I, Michael Seither, am Senior Vice President of Operations for American Sugar
Refining, Inc., and C&H Sugar Company, Inc. I have read the foregoing VERIFIED
CLAIM FOR REFUND OF SEWER SERVICE FEES COLLECTED BY CONTRA
COSTA COUNTY ON SECURED PROPERTY TAX BILLS FOR THE FISCAL YEAR
2007-2008 and know its contents.
The matters stated in the foregoing document are true of my own knowledge
except as to those matters which are stated on information and belief, and as to those
matters I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct. Executed on 2008 at
Q`n a
Michael Seither
Print Name of Signatory Signature
EXHIBIT A
COBLENTZ,
PATCH, DU F FY One Ferry Building.Suiie 200 main: 415.391.4800
San Francisco,California law 415.989,1663
&BASS LLPAATTTLOARWNEY$ 94111-4213 web: www.cobtenulaw.com
John T.Bullock
Direct: 415.772.5706
Email: jtb@cpdb.com
December 7, 2007
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
William J. Pollacek
Contra Costa County Treasurer-Tax Collector
P.O. Box 631
Martinez, CA 94553-0063
Re: C&H Sugar Company, Inc.
Tax Bill No.: 07 260510 1
Parcel No.: 354-011-002-4 00
Protest: Assessment of Sewer Charges on 2007-2008 Tax Bills
Dear Mr. Pollacek:
This firm is legal counsel to C&H Sugar Company, Inc., taxpayer with respect to
Parcel Number 354-011-002-4 00 ("C&H"). We write in reference to the Secured
Property Tax Bill No. 07 260510 1, issued on September 7, 2007, for the period 2007-
2008 (the "Tax Bill").
As set forth in greater detail below, C&H protests the assessment of fees
identified on the Tax Bill as "Crockett CSD-SAN," Code GC, in the amount of
$249,135.00 (the "Sewer Fees"). Without waiving its legal rights to challenge the Sewer
Fees and to seek a refund of all or a portion of those fees, C&H is paying the current
installment of the Sewer Fees on this Tax Bill, under protest.
This payment is made under protest for the reasons set forth below, including
that the Crockett Community Services District (the "CCSD") failed to comply with the
statutory requirements for placement of the Sewer Fees on the Tax Bill. Therefore,
assessment of these fees on the Tax Bill is improper and unlawful.
On-behalf of C&H, enclosed is the check of American Sugar Refining, Inc., as
paying agent for C&H (check number 320067887), in the amount of$764,023.57.
C&H challenges the assessment of the Sewer Fees on the Tax Bill on the
following grounds:
13183.001.7423530
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPAROA E Y S
William J. Pollacek
December 7, 2007
Page 2
(1) The Sewer Fees imposed by Ordinance 07-2 of the Crockett Community
Services District (the "CCSD") violate Articles XIII C and D of the
California Constitution (see also Government Code § 53750, et seq.)
and/or Government Code Sections 53720, et seq.;
(2) To the extent the Sewer Fees are a "capacity charge" under Government
Code section 66013, they exceed the estimated reasonable cost of
providing the service for which the charges are imposed, yet they were not
submitted to, or approved by, a popular vote of two-thirds of voters in the
district served by CCSD, and the imposition of the fees therefore violates
Sections 66013 and 66016 of the Government Code;
(3) To the extent the Sewer.Fees represent"capacity charges," CCSD was
required to follow specific procedures under Government Code Section
66016 before imposing those charges, which CCSD failed to do;
(4) CCSD was required to comply with Health and Safety Code Section 5473
and/or Government Code Section 61115 before placing these_charges on
the tax rolls, which CCSD failed to do;
(5) In enacting Ordinance 06-1 and Ordinance 07-2 (the "Ordinances") and
Resolution 06/07-22, CCSD has deprived, and will deprive, C&H of its
property without due process of law in violation of the United States and
California Constitutions, because those acts were arbitrary, capricious and
unreasonable for at least the following reasons:
(a) the Ordinances have the effect of circumventing the terms of the
Sewer Service Agreement between CCSD and C&H, which sets
the rates that CCSD may charge to C&H for sewer service;
(b) the Sewer Fees exceed the estimated reasonable cost of providing
sewer services;
(c) the Sewer Fees far exceed the cost of C&H's use of or burden on
the sewer system;
(d) the Sewer Fees, to the extent they are based on water
consumption rather than sewage output, are arbitrary,
unreasonable, and not rationally related to the costs incurred by
CCSD;
13183.001.7423530
COBLENT'Z, •
PATCH, DUFFY
&BASS LLNTIAV"
William J. Pollacek
December 7, 2007
Page 3
(e) the Ordinances are impermissibly vague in that they do not define
"substantial"or otherwise delineate clear and uniform standards for
application of their provisions;
(f) the Ordinances impermissibly attempt to shift the burden of proof
with respect to the rationality of CCSD's action to a manufacturer,
and fail to provide any mechanism for notice or opportunity to be
heard on that or any other issue arising thereunder; and
(g) the "penalty" of 10% for late payments, plus 1%% per month, is
arbitrary, unreasonable, capricious and not rationally related to
CCSD's actual costs of providing services; and
(6) the charges violate the Contracts Clauses of the United States and
California Constitutions because the enactment of the Ordinances and the
Resolution impairs existing agreements between C&H and CCSD.
In addition, it is impossible to discern from the line item assessment whether the
charge for Sewer Fees on the Tax Bill is for past or future use. CCSD has represented
that the assessment is for future use, covering the period 2007-2008. If, however, a
portion of the assessment includes amounts allegedly due for the period 2005-2006, the
assessment is improper because the agreement in effect at the time stipulated that
sewer charges would be based upon an output of.0518 MGD, and there is no provision
for retroactive adjustment of that amount. To the extent that the assessment includes
charges based upon Ordinance 06-1, it is improper because C&H was not within the
jurisdiction of the Crockett-Valona Sanitary District (CCSD's predecessor) at the time
the ordinance was enacted, and for many of the reasons stated above.
Assuming that the assessment is, in fact, based upon estimated future use for
the period 2007-2008,the charge is improper for the following additional reasons. The
line item assessment on the tax bill does not reveal the data or methodology utilized to
calculate this amount. If the assessment is based'upon wastewater discharge, as
opposed to water consumption, it appears that CCSD's estimate of the discharge by
`C&H is far in excess of the actual amount of discharge. If the charge is based upon
water consumption, it is arbitrary and irrational because the refining of sugar in the C&H
manufacturing process consumes a substantial amount of water.
Accordingly, C&H protests the current assessment on the grounds stated above.
We have requested that CCSD provide detail and explanation to support its rate
calculations, including but not limited to the method of the calculations and all data
and/or assumptions or estimates relied upon in making the calculations. We have also
requested an explanation of the basis for the methodology, i.e., how the assessments
13183.001.742353v1
COBLENTZ, •
PATCH, DUFFY
&BASS LLPAT OWEYS
William J. Pollacek
December 7, 2007
Page 4
relate to CCSD's actual costs of providing service to C&H. Finally, we demanded that
CCSD notify and cause the Assessor to cancel the Tax Bill and reissue it without the
Sewer Fees in light of the numerous substantive and procedural defects identified
above. To date, CCSD has not complied with these requests.
As set forth above, C&H is making payment of the current installment of the
Sewer Fees, in the amount of$124,567.50, under protest. By making this payment,
C&H does not waive and expressly reserves all rights to challenge the assessment, and
the amount of the assessment, on any of the grounds stated above, and on any
additional valid legal grounds. C&H intends to, and reserves the right to, seek a refund
of all or a portion of the amount paid under protest.
Very truly yours,
John T. Bullock
JTB(mwa
Enclosures: 1) Check No. 320067887, in the amount of$764,023.57.
2) Payment Stub for Tax Bill No. 07 260510 1
cc: Kent Peterson, General Manager, Crockett Community Services District
Kent Alm, Esq.
13183.001.742353v1
354.011.002.4 00 07 idw 1 10006 52001 9/07/2007 ORIGINAL
7-2008
s. SECURED PROPERTY TAXES
,.; THIS STUB MUST ACCOMPANY PAYMENT
'DUB NOY:'k 20D7. .:
. Drinaurd.nroEC,l4r4,oc ' $764,023.57
MAKE CHECK PAYABLE TO:
. �5AFTER 12/10/2007. - $440,425.92
CONTRA COSTA.COUNTY TAX COLLECTOR `i`(lncwD01Os PDKTY)
P.a BOX 531
MARTINEZ CA 94553-0063 4TO,PAY FULL',t $1,526,047.14
FWN -80tH stupe VA THIS
13540110024200726051010007640235752007.32307.0084b425'920
,i
American Sugar Refining, Inc. VENDOR NO. I DATE N_
As Paying Agent for C&H Sugar Co., Inc.
1 FederaYonkers,
Y 10 0040014160 12/05/2007 320067887
et
Yonkers, NY 10705
YOUR NET
DOCUMENT REFERENCE DATE DEDUCTIONS AMOUNT
1900023949 07260510111 08 07 2007 0.00 764023. 57
764023.57
ERiES 500
American Sugar Refining, Inc. 320067887
As Paying Agent fa all Sups Co, Ino '
63-16i2 <
1 Fail" Street oATIE 12 L05 %2007 a!2
Yonkers, Nr 10706.: .-.
PAYABLE Wachovia Rank,:National Aesocia;fon
THRU
$754,023:.57'
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COBLENTZ,
PATCH, DU F FY _ One Feng Building.Suite 200 main: 415.391.4800
&BASS LLP ATTORNEYS San Francisco.California (ax. 415.989.1663
AT LAW 94111-4213 web: www.coblentzlaw.com
John T.Bullock
Direct: 415.772.5706
Email: jtb@cpdb.com
December 7, 2007
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
William J. Pollacek
Contra Costa County Treasurer-Tax Collector
P.O. Box 631
Martinez, CA 94553-0063
Re: C&H Sugar Company, Inc.
Tax Bill No.: 07 349780 1
Parcel No.: 354-112-008-9 01
Protest: Assessment of Sewer Charges on 2007-2008 Tax Bills
Dear Mr. Poliacek:
This firm is legal counsel to C&H Sugar Company, Inc., taxpayer with respect to
Parcel Number 354-112-008-9 01 ("C&H"). We write in reference to Secured Property
Tax Bill No. 07 349780 1, issued on September 21, 2007, for the period 2007-2008 (the
"Tax Bill").
As set forth in greater detail below, C&H protests the assessment of fees
identified on the Tax Bill as "Crockett CSD-SAN," Code GC, in the amount of$1,912.00
(the "Sewer Fees"). Without waiving its legal rights to challenge the Sewer Fees and to
seek a refund of all or a portion of those fees, C&H is paying the current installment of
the Sewer Fees on this Tax Bill, under protest.
This payment is made under protest for the reasons set forth below, including
that the Crockett Community Services District (the "CCSD") failed to comply with the
statutory requirements for placement of the Sewer Fees on the Tax Bill. Therefore,
assessment of these fees on the Tax Bill is improper and unlawful.
On behalf of C&H, enclosed is the check of American Sugar Refining, Inc., as
paying agent for C&H (check number 320067380), in the amount of$17,370.39.
C&H challenges the assessment of the Sewer Fees on the Tax Bill on the
following grounds:
13183.001.752108v1
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPATLAw EYS
William J. Pollacek
December 7, 2007
Page 2. —
(1) The Sewer Fees imposed by Ordinance 07-2 of the Crockett Community
Services District (the "CCSD")violate Articles XIII C and D of the
California Constitution(see also Government Code § 53750, et seq.)
and/or Government Code Sections 53720, et seq.;
(2) To the extent the Sewer Fees are a "capacity charge" under Government
Code section 66013, they exceed the estimated reasonable cost of
providing the service for which the charges are imposed, yet they were not
submitted to, or approved by, a popular vote of two-thirds of voters in the
district served by CCSD, and the imposition of the fees therefore violates
Sections 66013 and 66016 of the Government Code;
(3) To the extent the Sewer Fees represent "capacity charges," CCSD was
required to follow specific procedures under Government Code Section
66016 before imposing those charges, which CCSD failed to do;
(4) CCSD was required to comply with Health and Safety Code Section 5473
and/or Government Code Section 61115 before placing these charges on
the tax rolls, which CCSD failed to do;
(5) In enacting Ordinance 06-1 and Ordinance 07-2 (the "Ordinances") and .
Resolution 06/07-22, CCSD has deprived, and will deprive, C&H of its
property without due process of law in violation of the United States and
California Constitutions, because those acts were arbitrary, capricious and
unreasonable for at least the following reasons:
(a) the Ordinances have the effect of circumventing the terms of the
Sewer Service Agreement between CCSD and C&H, which sets
the rates that CCSD may charge to C&H for sewer service;
(b) the Sewer Fees exceed the estimated reasonable cost of providing
sewer services;
(c) the Sewer Fees far exceed the cost of C&H's use of or burden on
the sewer system;
(d) the Sewer Fees, to the extent they are based on water
consumption rather than sewage output, are arbitrary,
unreasonable, and not rationally related to the costs incurred by
CCSD;
13183.001.7521080
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPAT LAW-N'Y'
William J. Pollacek
December 7, 2007
Page 3
(e) the Ordinances are impermissibly vague in that they do not define
"substantial" or otherwise delineate clear and uniform standards for
application of their provisions;
(f) the Ordinances impermissibly attempt to shift the burden of proof
with respect to the rationality of CCSD's action to a manufacturer,
and fail to provide any mechanism for notice or opportunity to be
heard on that or any other issue arising thereunder; and
(g) the "penalty" of 10% for late payments, plus 1%z% per month, is
arbitrary, unreasonable, capricious and not'rationally related to
CCSD's actual costs of providing services; and
(6) the charges violate the Contracts Clauses of the United States and
California Constitutions because the enactment of the Ordinances and the
Resolution impairs existing agreements between C&H and CCSD.
In addition, it is impossible to discern from the line item assessment whether the
Sewer Fees charge on the Tax Bill is for past or future use. CCSD has represented that
the assessment is for future use, covering the period 2007-2008. If, however, a portion
of the assessment includes amounts allegedly due for the period 2005-2006, the
assessment is improper because the agreement in effect at the time stipulated that
sewer charges would be based upon an output of .0518 MGD, and there is no provision
for retroactive adjustment of that amount. To the extent that the assessment includes
charges based upon Ordinance 06-1, it is improper because C&H was not within the
jurisdiction of the Crockett-Valona Sanitary District (CCSD's predecessor) at the time
the ordinance was enacted, and for many of the reasons stated above.
Assuming that the assessment is, in fact, based upon estimated future use for
the period 2007-2008, the charge is improper for the following additional reasons. The
line item assessment on the tax bill does not reveal the data or methodology utiliied to
calculate this amount. If the assessment is based upon wastewater discharge, as
opposed to water consumption, it appears that CCSD's estimate of the discharge by
C&H is far in excess of the actual amount of discharge. If the charge is based upon
water consumption, it is arbitrary and irrational because the refining of sugar in the C&H
manufacturing process consumes a substantial amount of water.
Accordingly, C&H protests the current assessment on the grounds stated above.
We have requested that CCSD provide detail and explanation to support its rate
calculations, including but not limited to the method of the calculations and all data
and/or assumptions or estimates relied upon in making the calculations. We have also
requested an explanation of the basis for the methodology, i.e., how the assessments .
13183.001.7521080
COBLENTZ, •
PATCH, DUFFY
&BASS LLPAIELLAW EYS
William J..Pollacek
December 7, 2007
Page 4
relate to CCSD's actual costs of providing service to C&H. Finally, we demanded that
CCSD notify and cause the Assessor to cancel the Tax Bill and reissue it without the
Sewer Fees in light of the numerous substantive and procedural defects identified
above. To date, CCSD has not complied with these requests.
As set forth above, C&H is making payment of the current installment of Sewer
Fees, in the amount of$956.00, under protest. By making this payment, C&H does not
waive and expressly reserves all rights to challenge the assessment, and the amount of
the assessment, on any of the grounds stated above, and on any additional valid legal
grounds. C&H intends to, and reserves the right to, seek a refund of all or a portion of
the amount paid under protest.
Very truly yours,
John T. Bullock
JTB/mwa
Enclosures: 1) Check No. 320067380, in the amount of$17,370.39.
2) Payment Stub for Tax Bill No. 07 349780 1
cc: Kent Peterson, General Manager, Crockett-Valona Sanitary District
Kent Alm, Esq.
13183.001.752108x1
354-112-008-9 01 073497 10006 620 09/21/2007 CORRECTED
I;;.CHECK:THIS BOX IF;REQUESTING`.
2007-2008
cw4NGE oFwAILIN GADDRE66tk 1SECURED PROPERTY TAXES
u ..PRIMARY RESIDENCE ON THE.
BACKSIDE OF THIS COUPON z. THIS STUB MUST ACCOMPANY PAYMENT
DUE NOV. 1, 2007
Delinquent attar DEC. 10,2007 5:00p $17,370.39
MAKE CHECK PAYABLE TO:
AFTER 12/10/2007 $18,107.42
CONTRA COSTA COUNTY TAX COLLECTOR (INCLUDES 10%PENALTY)
P.O. BOX 631
MARTINEZ, CA 94553-0083 TO PAY FULL TAX $34,740.78
RETURN BOTH STUBS WITH THIS
AMOUNT BY DEC. 10,2007
135411200892007349780140001737039620071210700019107424
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
American Sugar Refining, Inc. • •
As Paying Agent for C&H Sugar Co., Inc. VENDOR NO. DATE N°
t Federal street
Yonkers, NY 10705 0040014160 11/29/2007 320067380
YOUR
DOCUMENTRE
REFERENCE DATE DEDUCTIONS AMOUNT
1900022675 073497802 09 21 2007 0.00 17370. 39
17370.39
REORDER RIES 500
i American Sugar Refining, Inc. 320067380
As.Pajin�Agent'W C&H:,Sugar.:Co, inti. 63 1012 .
1 Federal serest
Yonkers, NY 10705 DATE 11`/24 /2007 632
PAYABLE`` Wachovia Bank, National Association
THRU'
$17r37.0::39 !
! PAY TO. CONTRA COSTA CNTY TAX COLL h
: THE
ORDER OF ATTN BUSINESS LICENSE SECTION
P O Box 631
MARTINEZ CA 94553-0063 ^• • - -^ �^ ^ ^^^ °
1180320067380us 4:063210125t: 20799ts00 & 73571fa
2. Article Number '�_• 7ftwWd�b�y
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II II X CUR Ageessee
7160 3901 9846 0737 7646 if YES,ery rveryadrdasmlh
_° 11
3. Service Type CERTIFIED MAIL I- DEC j 2707 )c7o-�"4. Restricted Delivery?(ExtraFee) ❑Yes .
1. ArWe Addressed to:
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PS Form 3817,January 2005 i f p
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Certified Fee
x' Return Receipt Fee J �e ark
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a' yi�.11iuta J. Yolltacek
1-4 Cotatra Costa County Ttreast re-r—Tax
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a :4arcine$° CA 94553.4063
0
^� PS Form 3800,January 2005 US Postal Service Certified Mail Receiptr9)
COBLENTZ,
PATCH, DU F FY One Feny Building.Style 200 main: 415.391.4800
Sanriancisco.Calilornu lap 415.989.1663.
&BASS LLPAATTTLOARWNEYS 94111-4213wpb:-w .coblenul
aw.com
John T.Bullock
Direct: 415.772.5706
Email: jtb@cpdb.com
December 7, 2007
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
William J. Pollacek
Contra Costa County Treasurer-Tax Collector
• e
P.O. Box 631
Martinez, CA 94553-0063
Re: C&H Sugar Company, Inc.
Tax Bill No.: 07 260798 1
Parcel No.: 354-080-001-2 00
Protest: Assessment of Sewer Charges on 2007-2008 Tax Bills
Dear Mr. Pollacek:
This firm is legal counsel to C&H Sugar Company, Inc., taxpayer with respect to
Parcel Number 354-080-001-2 00 ("C&H"). We write in reference to Secured Property
Tax Bill No. 07 260798 1, issued on September 7, 2007, for the period 2007-2008 (the
"Tax Bill").
As set forth in greater detail below, C&H protests the assessment of fees
identified on the Tax Bill as "Crockett CSD-SAN," Code GC, in the amount of$1,903.00
(the "Sewer Fees"). Without waiving its legal rights to,challenge the Sewer Fees and to
seek a refund of all or a portion of those fees, C&H is paying the current installment of
the Sewer Fees on this Tax Bill, under protest.
This payment is made under protest for the reasons set forth below, including
that the Crockett Community Services District (the "CCSD") failed to comply with the
statutory requirements for placement of the Sewer Fees on the Tax Bill. Therefore,
assessment of these fees on the Tax Bill is improper and unlawful.
On behalf of C&H, enclosed is the check of American Sugar Refining, Inc., as
paying agent for C&H (check number 320067379), in the amount of$10,605.43.
C&H challenges the assessment of the Sewer Fees on the Tax Bill on the
following grounds:
13183.001.752130v1.
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPATiOW EYS
William J. Pollacek
December 7, 2007
Page 2
(1) The Sewer Fees imposed by Ordinance 07-2 of the Crockett Community
Services District (the "CCSD") violate Articles XIII C and D of the
California Constitution (see also Government Code § 53750, et seq.)
and/or Government Code Sections 53720, et seq.;
(2) To the extent the Sewer Fees are a "capacity charge" under Government
Code section 66013, they exceed the estimated reasonable cost of
providing the service for which the charges are imposed, yet they were not
submitted to, or approved by, a popular vote of two-thirds of voters in the
district served by CCSD, and the imposition of the fees therefore violates
Sections 66013 and 66016 of the Government Code;
(3) To the extent the Sewer Fees represent "capacity charges," CCSD was
required to follow specific procedures under Government Code Section
66016 before imposing those charges, which CCSD failed to do;
(4) CCSD was required to comply with Health and Safety Code Section 5473
and/or Government Code Section 61115 before placing these charges on
the tax rolls, which CCSD failed to do;
(5) In enacting Ordinance 06-1 and Ordinance 07-2 (the "Ordinances") and
Resolution 06/07-22, CCSD has deprived, and will deprive, C&H of its
property without due process of law in violation of the United States and
California Constitutions, because those acts were arbitrary, capricious and
unreasonable for at least the following reasons:
(a) the Ordinances have the effect of circumventing the terms of the
Sewer Service Agreement between CCSD and C&H, which sets
the rates that CCSD may charge to C&H for sewer service;
(b) the Sewer Fees exceed the estimated reasonable cost of providing
sewer services;
(c) the Sewer Fees far exceed the cost of C&H's use of or burden on
the sewer system;
(d) the Sewer Fees, to the extent they are based on water
consumption rather than sewage output, are arbitrary,
unreasonable, and not rationally related to the costs incurred by
CCSD;
13183.001.7521300
COBLENTZ,
PATCH,DUFFY
&BASS LLPAT LOW EYS
William J. Pollacek
December 7, 2007
Page 3
(e) the Ordinances are impermissibly vague in that they do not define
"substantial" or otherwise delineate clear and uniform standards for
application of their provisions;
(f) the Ordinances impermissibly attempt to shift the burden of proof
with respect to the rationality of CCSD's action to a manufacturer,
and fail to provide any mechanism for notice or opportunity to be
heard on that or any other issue arising thereunder; and
(g) the"penalty"of 10% for late payments, plus 1 Y2% per month, is
arbitrary, unreasonable, capricious and not rationally related to
CCSD's actual costs of providing services; and
(6) the charges violate the Contracts Clauses of the United States and
California Constitutions because the enactment of the Ordinances and the
Resolution impairs existing agreements between C&H and CCSD.
In addition, it is impossible to discern from the line item assessment whether the
Sewer Fees charge on the Tax Bill is for past or future use. CCSD has represented that
the assessment is for future use, covering the period 2007-2008. If, however, a portion.
of the assessment includes amounts allegedly due for the period 2005=2006,the
assessment is improper because the agreement in effect at the time stipulated that
sewer charges would be based upon an output of.0518 MGD, and there is no provision
for retroactive adjustment of that amount. To the extent that the assessment includes
charges based upon Ordinance 06-1, it is improper because C&H was not within the
jurisdiction of the Crockett-Valona Sanitary District (CCSD's predecessor) at the time
the ordinance was enacted, and for many of the reasons stated above.
Assuming that the assessment is, in fact, based upon estimated future use for
the period 2007-2008, the charge is improper for the following additional reasons. The
line item assessment on the tax bill does not reveal the data or methodology utilized to
calculate this amount. If the assessment is based upon wastewater discharge, as
opposed to water consumption, it appears that CCSD's estimate of the discharge by
C&H is far in excess of the actual amount of discharge. If the charge is based upon
water consumption, it is arbitrary and irrational because the refining of sugar in the C&H
manufacturing process consumes a substantial amount of water.
Accordingly, C&H protests the current assessment on the grounds stated above.
We have requested that CCSD provide detail and explanation to support its rate
calculations, including but not limited to the method of the calculations and all data
and/or assumptions or estimates relied upon in making the calculations. We have also
requested an explanation of the basis for the methodology, i.e., how the assessments
13183.001.752130v1
COBLENTZ,
PATCH, DUFFY
&BASS LLPA L7AW EYS
William J. Pollacek
December 7, 2007
Page 4
relate to CCSD's actual costs of providing service to C&H. Finally, we demanded that
CCSD notify and cause the Assessor to cancel the Tax Bill and reissue it without the
Sewer Fees in light of the numerous substantive and procedural defects identified
above. To date, CCSD has not complied with these requests.
As set forth above, C&H is making payment of the current installment of Sewer
Fees, in the amount of$951.50, under protest. By making this payment, C&H does not
waive and expressly reserves all rights to challenge the assessment, and the amount of
the assessment, on any of the grounds stated above, and on any additional valid legal
grounds. C&H intends to, and reserves the right to, seek a refund of all or a portion of
the amount paid under protest.
Very truly yours,
John T. Bullock
JTB/mwa
Enclosures: 1) Check No. 320067379, in the amount of$10,605.43
2) Payment Stub for Tax Bill No. 07 260798 1
cc: Kent Peterson, General Manager, Crockett-Valona Sanitary District
Kent Alm, Esq.
13183.001.752130v1
American Sugar Refining, Inc. VENDOR NO. DATE N4
As Paying Agent for CAH Sugar Co., Inc.
1 Federal Street 0040014160 - 11/29/2007 320067379
Yonkers, NY 10705
DOCUMENT YOUR REFERENCE DATE DEDUCTIONS NET
AMOUNT
190002267.2 07260798/1 09 07 2007 0. 00 10605.43
10605.4
ERIES 500
Amerfcart Sugar Refining, inc 320067379
; As PaYs'Ment for;C. SuffmGo, Inc 63-1012
I 1 nkits,fsereet DATE 11 /29 /2007
Yonkkn, NY 19706' 633
'PAYABLE Wachovia Bank, NationalAssociation
THRU
$101605,.43
PAY TO CONTRA COSTA CNTY TAX COLL
;THE
:ORDER OF ATTN BUSINESS LICENSE SECTION
P 0 Box 631
MARTINEZ''' CA 94553-0063 .,.F. erin4n•cuctx was neon• 5uu.wn+.n:mn
Pgfcal Pia. 1934-060-001-1 0
Ua032006 ? 37911' 1:0632LO125t: 207991g000357116
354.060-001.2 00 0726074 10006 6201 091077/2007 ORIGINAL
NEW
- K T
CHECHIS BOX IF;REaUEI UE8TfW` , 2007-2008
CHANGE;OF;MAILINC3 gpDRES3 OR?
'PRIMARYRESIDENCE'oNTHE ;; _ SECURED PROPERTY TAXES
r <BACKSIDE OF THIS`COUP014' .' THIS STUB MUST ACCOMPANY PAYMENT
DUE NOV. 1, 2007
Delinquent atter DEC. 10,2007&Wp $10,605.43
MAKE CHECK PAYABLE TO:
AFTER 12/10/2007 $11,865.97
CONTRA COSTA COUNTY TAX COLLECTOR (INCLUDES fQ%PENALTY)
P.O. BOX 631
MARTINEZ, CA 84553-0063 TO PAY FULL TAX $21,210.86
RETURN BOTH STUBS WITH THIS
ff AMOUNT BY DEC. 10,2007 .
135408000122007260798130001060543420071210700011665973
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
Postage $
\�NGESIAT/pryG
C Certified Fee G Q
k
n, Return Receipt Fee
(Endorsement Requirad) r, P
zgark
171-
m
6
m C4Restricted Delivery Fee p•
I� 101latek(Endorsement pe4elrod) '�qNTotal-Postage&Fees
1-1 Coutes Conta County Treasurer—Tax
ate- Collector
m P. 0. Box 531
iartirez, CA 94553--063
r )
PS Form 3800,January 2005 u5 Postal Service Certified Mail Receipt
I
77.0
._SECTION N
DELIVERY
COMPLETE THIS
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COBLENTZ,
PATCH, DUF FY One Fent Building.Suite 200 main: 415.391.4800
&BASS LLP ATTORNEYS San Ftandsco,CaMomia tax. 415.989.1663
AT LAW 94111.4213 web: www.cobientzlaw.com
John T.Bullock
Direct: 415.772.5706
Email: jtb@cpdb.com
December 7, 2007
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
William J. Pollacek
Contra Costa County Treasurer-Tax Collector
P.O. Box 631
Martinez, CA 94553-0063
Re: C&H Sugar Company, Inc.
Tax Bill No.: 07 3497781
Parcel No.: 354-094-006-5 01
Protest: Assessment of Sewer Charges on 2007-2008 Tax Bills
Dear Mr. Pollacek:
This firm is legal counsel to C&H Sugar Company, Inc., taxpayer with respect to
Parcel Number 354-094-006-5 01 ("C&H). We write in reference to Secured Property
Tax Bill No. 07 349778 1, issued on September 21, 2007, for the period 2007-2008 (the
'Tax Bill").
As set forth in greater detail below, C&H protests the assessment of fees
identified on the Tax Bill as"Crockett CSD-SAN," Code GC, in the amount of$395.00
(the "Sewer Fees"). Without waiving its legal rights to challenge the Sewer Fees and to
seek a refund of all or a portion of those fees, C&H is paying the current installment of
the Sewer Fees on this Tax Bill, under protest.
This payment is made under protest for the reasons set forth below, including
that the Crockett Community Services District (the "CCSD") failed to comply with the
statutory requirements for placement of the Sewer Fees on the Tax Bill. Therefore,
assessment of these fees on the Tax Bill is improper and unlawful.
On behalf of C&H, enclosed is the check of American Sugar Refining, Inc., as
paying agent for C&H (check number 320067378), in the amount of$2,207.95.
C&H challenges the assessment of the Sewer Fees on the Tax Bill on the
following grounds:
13183.001.752147v1
COBLENTZ, •
PATCH, DUFFY
&BASS LLPAT ATTOW M
William J. Pollack
December 7, 2007
Page 2
(1) The Sewer Fees imposed by Ordinance 07-2 of the CCSD violate Articles
XIII C and D of the California Constitution (see also Government Code §
53750, et seq.) and/or Government Code Sections 53720, et seq.;
(2) To the extent the Sewer Fees are a "capacity. charge" under Government
Code section 66013, they exceed the estimated reasonable cost of
providing the service for which the charges are imposed, yet they were not
submitted to, or approved by, a popular vote of two-thirds of voters in the
district served by CCSD, and the imposition of the fees therefore violates
Sections 66013 and 66016 of the Government Code;
(3) To the extent the Sewer Fees represent"capacity charges," CCSD was
required to follow specific procedures under Government Code Section
66016 before imposing those charges, which CCSD failed to do;
(4) CCSD was required to comply with Health and Safety Code Section 5473
and/or Government Code Section 61115 before placing these charges on
the tax rolls, which CCSD failed to do;
(5) In enacting Ordinance 06-1 and Ordinance 07-2 (the "Ordinances") and
Resolution 06/07-22, CCSD has deprived, and will deprive, C&H of its
property without due process of law in violation of the United States and
California Constitutions, because those acts were arbitrary, capricious and
unreasonable for at least the following reasons:
(a) the Ordinances have the effect of circumventing the terms of the
Sewer Service Agreement between CCSD and C&H, which sets
the rates that CCSD may charge to C&H for sewer service;
(b) the Sewer Fees exceed the estimated reasonable cost of providing
sewer services;
(c) the Sewer Fees far exceed the cost of C&H's use of or burden on
the sewer system;
(d) the Sewer Fees, to the extent they are based on water
consumption rather than sewage output, are arbitrary,
unreasonable, and not rationally related to the costs incurred by
CCSD;
(e) the Ordinances are impermissibly vague in that they do not define
"substantial" or otherwise delineate clear and uniform standards for
application of their provisions;
13183.001.752147vi
COBLENTZ, •
PATCH, DUFFYEys
&BASS LLPXF LA
William J. Pollacek
December 7, 2007
Page 3
(f) the Ordinances impermissibly attempt to shift the burden of proof
with respect to the rationality of CCSD's action to a manufacturer,
and fail to provide any mechanism for notice or opportunity to be
heard on that or any other issue arising thereunder; and
(g) the "penalty" of 10%for late payments, plus 11/2% per month, is
arbitrary, unreasonable, capricious and not rationally related to
CCSD's actual costs of providing services; and
(6) the charges violate the Contracts Clauses of the United States and
California Constitutions because the enactment of the Ordinances-and the
Resolution impairs existing agreements between C&H and CCSD.
In addition, it is impossible to discern from the line item assessment whether the
Sewer Fees charge on the Tax Bill is for past or future use. CCSD has represented that
the assessment is for future use, covering the period 2007-2008. If, however, a portion
of the assessment includes amounts allegedly due for the period 2005-2006, the
assessment is improper because the agreement in effect at the time stipulated that
sewer charges would be based upon an output of .0518 MGD, and there is no provision
for retroactive adjustment of that amount. To the extent that the assessment includes
charges based upon Ordinance 06-1, it is improper because C&H was not within the
jurisdiction of the Crockett-Valona Sanitary District (CCSD's predecessor) at the time
the ordinance was enacted, and for many of the reasons stated above.
Assuming that the assessment is, in fact, based upon estimated future use for
the period 2007-2008, the charge is improper for the following additional reasons. The
line item assessment on the tax bill does not reveal the data or methodology utilized to
calculate this amount. If the assessment is based upon wastewater discharge, as
opposed to water consumption, it appears that CCSD's estimate of the discharge by
C&H is far in excess of the actual amount of discharge. If the charge is based upon
water consumption, it is arbitrary and irrational because the refining of sugar in the C&H
manufacturing process consumes a substantial amount of water.
Accordingly, C&H protests the current assessment on the grounds stated above.
We have requested that CCSD provide detail and explanation to support its rate
calculations, including but not limited to the method of the calculations and all data
and/or assumptions or estimates relied upon in making the calculations. We have also
requested an explanation of the basis for the methodology, i.e., how the assessments
relate to CCSD's actual costs of providing service to C&H. Finally, we demanded that
CCSD notify and cause the Assessor to cancel the Tax Bill and reissue it without the
Sewer Fees in light of the numerous substantive and procedural defects identified
above, To date, CCSD has not complied with these requests.
13183.00US21470
COBLE NTZ, •
PATCH, DUFFY
&BASS LLl"nAT LOW EYS
William J. Pollacek
December 7, 2007
Page 4
As set forth above, C&H is making payment of the current installment of Sewer
Fees, in the amount of$197.50, under protest. By making this payment, C&H does not
waive and expressly reserves all rights to challenge the assessment, and the amount of
the assessment, on any of the grounds stated above, and on any additional valid legal
grounds. C&H intends to, and reserves the right to, seek a refund of all or a portion of
the amount paid under protest.
Very truly yours,
John T. Bullock
JTB/mwa
Enclosures: 1) Check No. 320067378, in the amount of$2,207.95
2) Payment Stub for Tax Bill No. 07 349778 1
cc: Kent Peterson, General Manager, Crockett-Valona Sanitary District
Kent Alm, Esq.
13183.001.7521470
354.094-008.5 01 07 349778 10008 82006 Allk 09/21/2007 CORRECTED
��CHECKTHISBOX IF REQUESTING=.,
2007-2008
CHANGEOF.'MAILINl3ADDRESSOR` SECURED PROPERTY TAXES
pRIMARY.RESID�NC,E ONFTHE 3 i
��s BACKSIDEOF THIS,COUPON��` � THIS STUB MUST ACCOMPANY PAYMENT
DUE NOV. 1, 2007
Delinquent after DEC. 10,2007 3:00pm $29207.95
MAKE CHECK PAYABLE TO:
AFTER 12/10/2007 $2,428.74
CONTRA COSTA COUNTY TAX COLLECTOR (INCLUDES 10%PENALTY)
P.O. BOX 831
MARTINEZ, CA 94553-0083 TO PAY FULL TAX $4,415.90
RETURN BOTH STUBS WITH THIS
AMOUNT BY DEC. 10,2007
135409400652007349778180000220795920071210700002428746
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
American Sugar Refining, Inc.
As Paying Agent for C&H sugar Co., Inc. VENDOR NO. DATE No_
1 Federalsuet
Yonkrakersrs,, NY 10705 0040014160 11/29/2007 320061378
YOUR
DOCUMENTREF
REFERENCE DATE DEDUCTIONS AMOUNT
1900022676 07349778. 1 09 21 2007 0.00 2207 .95
2207.9
REORDER RIES 500
American Sugar Refining, Inc. 320067378 :
As Ode *ne'`Agmt /o►.;C k" Sun►.Co, Inr: 63 1032
1 Feea street DATE 11 /24 /2007
Yonkers, NY 10705 632
PAYABLE. Wachovia Bank,' National Association
THRU
�.. $2,207:. 95
PAY TO CONTRA COSTA.CNTY TAX COLLY,
: THE .
ORDER OF ATTN BUSINESS.LICENSE SECTION
P 0 Box 631
MARTINEZ CA 94553-0063 • .. N, d OH 1. IGFOVRMINU
Parcel 00. 354-0941- oo`-S 0%
11803200673780 1;063210i251: 207994001735711e
so 7
Postage
Sl
Certified Fee 9' c o,
m M
Return Receipt Fee
(Endorsement Required) Z _ Post
v i 1
He
M
O ° o Restricted Delivery Fee . .
(Endorsement Required)
o $ `�'�N FRN%
' Total Postage,:&Fees
• ,� Sent`Ta:
1, POIIACe t
Contra Costa Ctt,y Txiauxer-Tax
Collector .
M PeOw Box 631
0 Martinez. CA 94553
PS Form 3800, January 2005 us Postal Service Certified Mai
COMPLETE THIS SECTIOt,
4
tet' _ Fr
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COBLENTZ,
PATCH, DU F FY One Ferry Building.Suite 200 main:415.391.4800
&BASS LLP ATTORNEYS San Francisco,California - fax: 415.989.1663-
AT LAW 94111-4213 web: w ..coblentzlaw.com
John T.Bullock
Direct: 415.772.5706
Email: j1d4cpdb.com
April 7, 2008
13183.001-1 L
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
William J. Pollacek
Contra Costa County Treasurer-Tax Collector
P.O. Box 631
Martinez, CA 94553-0063
Re: C&H Sugar Company, Inc.
Tax Bill Nos.: 072605102 072608622
072607292 072614612
072607342 072615442
072607982 072615452
072608012 073497782
072608022 073497792
072608042 073497802
072608082 073520292
Parcel Nos.: 354-011-002-4 00 354-094-006-5-01
354-064-021-0 00 354-094-017-2 01
354-071-006-2 00 354-095-023-9 00
354-080-001-2 00 354-112-008-9 01
354-080-010-3 00 354-262-021-0 00
354-080-011-1 00 354-320-007-9 00
354-091-002-7 00 354-320-008-7 00
354-091-010-0 00 354-094-007-3 01
Protest: Assessment of Sewer Charges on 2007-2008 Tax Bills
Dear Mr. Pollacek:
This firm is legal counsel to C&H Sugar Company, Inc., taxpayer with respect to
the above-referenced Tax Bills and parcels ("C&H").
As set forth in greater detail below, C&H protests the assessment of fees
identified on certain of the Tax Bills as "Crockett CSD-SAN," Code GC (the "Sewer
Fees"). In particular, these assessments appear on Tax Bills Nos. 073497802 (Parcel
13163.001.13426500
COBLENTZ,
PATCH, DUFFY
&BASS LLPAI LAW EYS
William J. Pollacek
April 7, 2008
Page 2
No. 354-112-008-9 01), 072605102 (Parcel No. 354-011-002-4 00), 073497782 (Parcel
No. 354-094-006-5 01), and 072607982 (Parcel No. 354-080-001-2 00) (the
"Assessment Tax Bills"). Without waiving its legal rights to challenge the Sewer Fees
and to seek a refund of all or a portion of those fees, C&H is paying the current
installment of the Sewer Fees on the Assessment Tax Bills, under protest.
These payments are made under protest for the reasons set forth below,
including that the Crockett Community Services District (the "CCSD") failed to comply
with the statutory requirements for placement of the Sewer Fees on the Tax Bills.
Therefore, assessment of these fees on the Tax Bills is improper and unlawful.
On behalf of C&H, enclosed is the check of American Sugar Refining, Inc., as
paying agent for C&H (check number 320076855), in the amount of $861,281.70, in
payment of the taxes and fees assessed on the above-referenced Tax Bills associated
with the above-referenced parcels, including the amounts paid under protest with
respect to the Assessment Tax Bills.
C&H challenges the assessment of the Sewer Fees on the Assessment Tax Bills
on the following grounds:
(1) The Sewer Fees imposed by Ordinance 07-2 of the Crockett Community
Services District (the "CCSD") violate Articles XIII C and D of the
California Constitution (see also Government Code § 53750, et seq.)
and/or Government Code Sections 53720, et seq.;
(2) To the extent the Sewer Fees are a "capacity charge" under Government
Code section 66013, they exceed the estimated reasonable cost of
providing the service for which the charges are imposed, yet they were not
submitted to, or approved by, a popular vote of two-thirds of voters in the
district served by CCSD, and the imposition of the fees therefore violates
Sections 66013 and 66016 of the Government Code;
(3) To the extent the Sewer Fees represent "capacity charges," CCSD was
required to follow specific procedures under Government Code Section
66016 before imposing those charges, which CCSD failed to do;
(4) CCSD was required to comply with Health and Safety Code Section 5473
and/or Government Code Section 61115 before placing these charges on
the tax rolls, which CCSD failed to do;
13183.001.842650v t
COBLENTZ, • •
PATCH, DUFFY
&BASS LLPATLOA EYS
William J. Pollacek
April 7, 2008
Page 3
(5) In enacting Ordinance 06-1 and Ordinance 07-2 (the "Ordinances") and
Resolution 06/07-22, CCSD has deprived, and will deprive, C&H of its
property without due process of law in violation of the United States and
California Constitutions, because those acts were arbitrary, capricious and
unreasonable for at least the following reasons:
(a) the Ordinances have the effect of circumventing the terms of the
Sewer Service Agreement between CCSD and C&H, which sets
the rates that CCSD may charge to C&H for sewer service;
(b) the Sewer Fees exceed the estimated reasonable cost of providing
sewer services;
(c) the Sewer Fees far exceed the cost of C&H's use of or burden on
the sewer system;
(d) the Sewer Fees, to the extent they are based on water
consumption rather than sewage output, are arbitrary,
unreasonable, and not rationally related to the costs incurred by
CCSD;
(e) the Ordinances are impermissibly vague in that they do not define
"substantial" or otherwise delineate clear and uniform standards for
application of their provisions;
(f) the Ordinances impermissibly attempt to shift the burden of proof
with respect to the rationality of CCSD's action to a manufacturer,
and fail to provide any mechanism for notice or opportunity to be
heard on that or any other issue arising thereunder; and
(g) the "penalty" of 10%for late payments, plus 11/2% per month, is
arbitrary, unreasonable, capricious and not rationally related to
CCSD's actual costs of providing services; and
(6) The charges violate the Contracts Clauses of the United States and
California Constitutions because the enactment of the Ordinances and the
Resolution impairs existing agreements between C&H and CCSD.
In addition, it is impossible to discern from the line item assessments whether the
Sewer Fees charge on each Assessment Tax Bill is for past or future use. CCSD has
represented that the assessments are for future use, covering the period 2007-2008. If,
13183.001.8426500
COBLENTZ, •
PATCH, DUFFY
&BASS LLPAT IOR`VNEYS
William J. Pollacek
April 7, 2008
Page 4
however, a portion of the assessments includes amounts allegedly due for the period
2005-2006, the assessments are improper because the agreement in effect at the time
stipulated that sewer charges would be based upon an output of .0518 MGD, and there
is no provision for retroactive adjustment of that amount. To the extent that the
assessments include charges based upon Ordinance 06-1, they are improper because
C&H was not within the jurisdiction of the Crockett-Valona Sanitary District (CCSD's
predecessor) at the time the ordinance was enacted, and for many of the reasons
stated above.
Assuming that the assessments are, in fact, based upon estimated future use for
.the period 2007-2008, the charges are improper for the following additional reasons.
The line item assessment on each of the Assessment Tax Bills does not reveal the data
or methodology utilized to calculate the amount. If the assessments are based upon
wastewater discharge, as opposed to water consumption, it appears that CCSD's
estimate of the discharge by C&H is far in excess of the actual amount of discharge. If
the charges are based upon water consumption, they are arbitrary and irrational
because the refining of sugar in the C&H manufacturing process consumes a
substantial amount of water.
Accordingly, C&H protests the current assessments on the grounds stated
above. As set forth above, C&H is making payment of the current installments of Sewer.
Fees under protest. By making these payments, C&H does not waive and expressly
reserves all rights to challenge the assessments, and the amounts of the assessments,
on any of the grounds stated above, and on any additional valid legal grounds. C&H
intends to, and reserves the right to, seek a refund of all or a portion of the amounts
paid under protest.
Very truly yours,
John T. Bullock
JTB/mwa
Enclosures: 1) Check No. 320076855, in the amount of $861,281.70
2) Payment Stubs for Tax Bills
cc: Kent Peterson, General Manager, Crockett-Valona Sanitary District
Kent Alm, Esq.
13183.001.842650v1
354-09 -Q07-3 01 352029 10006 62006 Allk
A 11116'/2007 CORRECTED
CHECK THIS BOX IF REQUESTING `oo��`oo8
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON._ 77
THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent atter APR. 10,2008 5:00p $621.35
MAKE CHECK PAYABLE TO:
APR. 10, 2008 S:OOpm $703.48
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY:YOURTAXES ON LINE-241T
MARTINEZ, CA 94553-0063 TO PAY,BY.PHONE .CALL 1877-06Tr5280';,;:i>;'.;:•::.
TO PAY BY INTERNET, GO.TO WWW:CCTAXUS'; ;.;: .
135409400732007352029270000062135920080410200000703488
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
..:.Y.S:: .•«.0w-•••.••••••:aSS�T.Tett':F�•i'.^:Eft:^:. T.�'flin'.!::'t.':fri:n-.... .. .. .........r..... :ermsnrnmmm...mna,,:, ...
r PARCEL NUMBER BILL NUMBER e•
351:011-002-4 00 07 260570 2 10008 62001 09107712007e ORIGINAL
CHECK,THIS:BOX IF REQUESTING,. 2oa7-`00v
E F c.HANGEOF!MAILINGADDRESSOR= SECURED PROPERTY TAXES
E PRIMAR`I,RESIDENCEONT
BHE.`.,
AGK3IDE OF.THI$000PO"W: . THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent after APR. 10,2008 5:00p $7649023.57
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00p $840,445.92
INCLUDES 10%PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU ALSO.OWE PRIOR.YEAR;TAXES
MARTINEZ, CA 94553-0083 HEAMOUNITH NOT INCLUDED'IN;THISTAX B W';t"
,.;,, PROP,ERTY SALE I D NUMBER 200.8-14128.�-K+�` �r._,
135401100242007260510280076402357820080410200840445928
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE 00 NOT FOLD.STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
PARCEL NUMBER e• DATE TYPE
354-064021.0 00 072007292 10006 62005 A 09107712007p ORIGINAL
;. CHECK THIS BOX IF'REQUESTING 207-2U08
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent Mer APR. 10,2008 5:00pn $5.66
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00p $26.24
(INCLUDES 10%PENALTY +COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN PAY YOUR TAXES ON LINE-24/7
MARTINEZ, CA 94553-0083 TO PAY BY PHONE, CALL 1-877-957-5280
TO PAY BY INTERNET, GO TO WWW.CCTAXUS
135406402102007260729250000000568620080410200000026245
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE 00 NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
1154-011J- AL-ja� 07 260734 locos 6 006 Adbk
n 0910712007Q ORIGINAL
CHECK THIS BOX IF REQUESTING 2007-2008
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent after APR. 10,2008 5:00prr $134.67
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5.00pn $188.13
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY YOUR,TAXES'ON LINEr2417
MARTINEZ, CA 94553-0063 TO PAY:BY'PHONE,'iCALL t+817-46 -5280
TO PAY.BY.INTERNET..GO TO WWW CCTAXU9
135407100622007260734280000013467620080410200000168138
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASEDO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
.:': .:...., ...::: ...................................*......................
NUMBERPARCEL NUMBER BILL
w CHECK 4kAOXjF REQUESTING;;. 2007'2008
OFIUNGQk:
CHANGE 'MAADORESS
t ;eRlnanRy,RESIDENCEokrHE::: . SECURED PROPERTY TAXES
v".". .:BACKSIDE OF THIS COUPON : .' . THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent after APR.10,2008 5: $1005.43
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00pn $11,885.97
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY YOUR-.TAXES,ON LING=Z4/T;
MARTINEZ, CA 94553-0063 TO PAY"BY PHONE;CALL t-877'857-5280z> r "
TO PAY BY 11f1 ERNET.GO TO WWWrCCTAai US1 �..,.
135408000122007260798210001060543420080410200011685971
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
....:....:..:::�:r;
I
' ........................................................................................................................................................................................s:,>M:..:i.:rw:Y. IN13
RARCEL NUMBER BILL NUMBER CORTAC AGENCY IAX RAI E AREA ISSUE DATE TYPE
394-080-010.3 007 260801 2 10006 62014 09910712007 ORIGINAL
".CHECK THIS BOX IF REQUESTING 2007-2008
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON; THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent after APR. 10,2008 5:00p $309796.63
MAKE CHECK PAYABLE TO:
AFTER APR. 10,2008 5:00pr $33,898.29
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN PAY YOUR TAXES ON LINE-2417
MARTINEZ, CA 94553 0083 TO PAY BY PHONE, CALL 1.877-957-5280
TO PAY BY INTERNET, GO TO WWW.CCTAX.US
135408001032007260801260003079663520080410200033896291
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT.PLEASE 00 NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
CHECK THIS BOX IF.REQUESTING 2007-2008
M'
` CHANGE PRIMARY RESIDENCE ON 7HE R SECURED PROPERTY TAXES
BACKSIDE OF THIS COUPON:- THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent atter APR. 10,2008 5:00 $512.96
MAKE CHECK PAYABLE TO:
AFTER APR 10, 2008 5:00pn $584.25
(INCLUDES 10%PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. Box 831 YOU CAN.PAY.YOUR TAXE$ON LINE` 2417
MARTINEZ, CA 94553-0063
"TO PAY BY,PHONE CALL74�m.8573260x," ;"
TO PAY BY,INTERNET,GO TO — CGTAX US,
135408001112007260802250000051296220080410200000584250
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX
11V $mom=
PARCEL NUMBER BILL NUMBER •' DATE TYPE sox IF f3ECUEsnrics,. 2007-2008
�GRANGE OF MAILINCi'ADDRES3;OR`:
.PRIMARY.,REsO)EriGEONTHE °. SECURED PROPERTY TAXES
w BACK$IbEOF7HtS'COUPON;.-,,,; THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent~APR. 10,2008 5:00 $131.60
MAKE CHECK PAYABLE TO:
AFTER APR 10,2008 5:00p $164.78
(INCLUDES 10%PENALTY + COST
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN PA1fwY0UR TARE ON N
LI6'=-Z4lT
MARTINEZ,CA 84553-0083 a ,a,A. PAY BIE PHONE.�GALC 1 77 857.6280'" s
TORAY BY INTERNEI;GO TO WWW c�TTIVGU�'F,y`�S-
135409100272007260804230000013160720080410200000164764
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPEOR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
...................:.. .... .. ..........................................._...................................................................................................................................."..............................................................
PARCEL NUMBER BILL NUMBER CORTAC AGENCY TAX RATE ARrA ISSUE DATE TYPE i
md-091-010-0 00 0: 10006 62006 09/07/2007 ORIGINAL
CHECK THIS BOX1F REQUESTING 2007-2008
CHANGE.OF MAILING ADDRESS OR
PRIMARrReSiDENCEON;THE SECURED. PROPERTY TAXES
x BACKSIDE OF THIS COUPON; THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
Delinquent after APR. 10,2008 5:oopn $217.56
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00pr $259.31
(INCLUDES 10%PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN PAY YOUR TAXES ON LINEo-24/7
MARTINEZ, CA 94553-0083 TO PAY BY PHONE.CALL 1-877-957-5280 ..;
TO PAY BY INTERNET, GO TO WWW.CCTAXUt
135409101002007260808290000021756220080410200000259317
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE.TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
354-094-006-5 01 0734977 10006 62006 09121/2007 CORRECTED
CHECK THIS BOX IF REQUESTING 2007-2008
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
ellnquent arta APR. 10,zoos 5:00pm $2,207.95
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00pm $2,448.74
INCLUDES 10%PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631YOU:CAN:PAY,.YOUR TAXES:ONLINE-24/7
MARTINEZ, CA 94553-0083 TO PAY BY.'PHONECALL.1-877-057 5280;
TO PAY BY INTERNET.GO TO WWW CCTAXUS#.
135409400652007349778260000220795920080410200002448744
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE"DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
. .. . . .,. ..,. ..,... ., .. ... ................_ .,_.....
PARCEL NUMBER •'
354-094-017-2 01 07 349779 2 10006 62006 09/2112007 CORRECTED
CHECK THIS BOX REQUESTIW: 2007'2008
E IF cHnNce ofµvuNonDDREss oR; SECURED PROPERTY TAXES
rU;PRIMARY..RESIDENCF-ONTHR ;,�
" BACKSIDE:QFTHIS:CbUPON ;A ;` THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008
DellnqueM after APR. 10,2008 5:00p $526.79
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 S:OOpm $599.48
(INCLUDES 10%PENALTY+ COSTS
CONTRA.COSTA COUNTY TAX COLLECTOR
P.O. BOX 631YOU:CAN PA o "
MARTINEZ, CA 94553-0083 TO PAY BY PHONE,CALL t-877-85T328Q1y,<'
• = TQ PAY BYINTERNEf,''GO�TO WYWYCCTAJEU�fir,;
135404401722007349779250000052679820080410200000549464
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
.....-...............................................................................................................................................................................................................................................................................................
PARCEL NUMBER 13ILL NUMBER
354-095 023-9 00 072508622 10008 62006 09/0712007 ORIGINAL
CHECK.THIS BOX IF REQUESTING', 2007-2008
CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1,2008
Dellnquad after APR. 10.2008 5: $6.54
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00pn $27.19
(INCLUDES 10%PENALTY +CMTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY YOUR TAXES ON LINE--2417
MARTINEZ, CA 94553-0063 TO PAY BY PHONE, CALL 1477-957-5280
TO PAY BY INTERNET, GO TO WWW.CCTAX.US
135409502392007260862220000000654420080410200000027193
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX. _
V 34978Q& 10008 62006 09/21/2007 CORRECTED
CHECK THIS BOX IF REQUESTING 2007-2008
1 CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008 $17,370.39
Delinquent after APR. 10,2008 5:00pm
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00pm $18,127.42
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN,PAY.YOUR TAXES ON LINE--2
MARTINEZ, CA 84553 0083 TO PAY:;BY PHONR:CALLA.=877,-857x6280, r ,
TO pAY 8Y IHiERNET,GO TO WWW CCTAX US
135411200892007349780220001737039620080410200019127422
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
....,.... .......„........_......_....................................._...........................................,.....,........................................................................................._.................M... , , ....
.... :�1.`v.�A....,...,,.i..i........
PARCEL NUMBER BILL'NUMBER CORTAC AGENCY TAX RATE AREA ISSUE DATE TYPE
09107 007 ORIGINAL
i;GFIECK THIS;BOX'IF REQUESTING};'.`: 2007'2008
cruwcEOF.:MAIUNG'AODRESSQa;
SECURED PROPERTY TAXES
PRIMARY.RESIDEHCE,ON'Tk1E'
BACKSIOEOF THISCOUPON `,. THIS STUB MUST ACCOMPANY PAYMENT
DUE FEB. 1, 2008 e
DNlnquent attar APR. 10,2008 5:00 $10.58
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00 $31.83
(INCLUDES 10%.PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 831 YOU CAN PAY YOUWTAXE9 ON LINE'=24Jx
MARTINEZ, CA 94553-0083 TO PAY BY•PHONE;,CAL4` 4"-8514280 °#
.TOPAY BY`INTERNET;GOTO WWW CCfAXU9r
135426202102007261461250000001056720080410200000031633
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESSBOX.
.......,...._..... ..... .... .... ......_. ........................................................
............................................:..............................................................................................................................................................................................................................................................
PARCEL NUMBER BILL DATE TYPE
354- 072615442 10006 62067 09/07/2007 ORIGINAL
CHECWTHIS BOX IF REQUESTING' 2007-2008
`.'CHANGE OF MAILING ADDRESS OR SECURED PROPERTY TAXES
PRIMARY RESIDENCE ON THE
BACKSIDE OF THIS COUPON. THIS STUB MUST ACCOMPANY PAYMENT
77
DUE FEB.1, 2008
Delinquent alter APR. 10,2008 5:00pr =4,911.20
MAKE CHECK PAYABLE TO:
AFTER APR. 10;2008 6:00p $5,422.32
(INCLUDES 10%PENALTY+ COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY YOUR TAXES ON LINE-2417
MARTINEZ, CA 94553-0083 TO PAY BY PHONE CALL 1877-967-6280'
TO PAY BY INTERNET, GO TO WWW.CCTAXUS
135432000742007261544260000491120220080410200005422324
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
...........................................:..............................................:........................................................................................................................................................................................................
354-320-008-7 00 07 2615451W 10008 62067 n 0910712007p ORIGINAL
:AN
THIS BOX IF REQUESTING `007•`008
OF MAILING ADDRESS OR SECURED PROPERTY TAXES. .
RY RESIDENCE_ON THETHIS STUB MUST ACCOMPANY PAYMENT
SIDE OF THIS COUPON.
DUE FEB. 1, 2008
Delinquent after APR. 10,2006 5:00p $299198.80
MAKE CHECK PAYABLE TO:
AFTER APR. 10, 2008 5:00p $32,138.68
(INCLUDES 10%PENALTY + COSTS
CONTRA COSTA COUNTY TAX COLLECTOR
P.O. BOX 631 YOU CAN PAY YOUR TAXE3,.ON LIN
MARTINEZ, CA 94553-0063TO PAY BY PHONE;CALLA471-9SZ;C280
Tp.PAY,8Y INTERNE7.;G0 TO WWW CCTAJCUS
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135432000872007261545250002919680120080410200032138687
TO ENSURE PROPER POSTING AND CREDIT OF PAYMENT,PLEASE DO NOT FOLD,STAPLE,TAPE OR WRITE ON THIS COUPON EXCEPT IN THE CHANGE OF ADDRESS BOX.
American Sugar Refining, Inc. VENDOR NO. ATE Na
As Paying Agent for C&H Sugar Co., nc.
1 Federal street 0040014160 03/17/2008 320076855
Yonkms, NY 10705
YOUR NET
DOCUMENT REFERENCE DATE DEDUCTIONS AMOUNT
1900027452 072660722302/2ND 09 07 2007 8:p88 76402335;68
1 8 0 74$8 0722 77g982/2ND 0g9 07 2007 0:00 106065:6433
199000274448 0726088022/2ND 09 07 2007 0:00 30512 :96
1900827446 072608082/2ND 7 2 7 217:5
1 7 433 8g8 09 8 88 0:88 6 2
l g�� 7441 07261461212ND 09 07 2007 88 10.58
U 3 O:QQ
1 7440 072615442/2ND 09 07 2007 0.00 29198.80
1900027439 072615452/2ND
1900027445 073497782/2ND 09 21 2007 0.00 2207.95
1900027444 073497792 2ND 09 21 2007 0.00 526 .79
1900027442 073497802/2ND 09 21 2007 0.00 17370. 39
1900027438 073520292/2No 11 16 2007 0.00 621 . 35
861281.7
ERIES 500
American Sugar Reftning, Inca 320076855
As PSy1ng Agent for [6H 5ugar Inc.
63-1612
I Federal Street
DATE 03 /17 /2008.
Yonkers, NY 10705 632
PAYABLE Wachovia BaO, National Association
THRU
��— $861,281.70
PAY TO CONTRA COSTA CNTY TAX COLL
ORDER OF ATTN BUSINESS LICENSE SECTION
P 0 Box 631
MARTINEZ CA 94553-0063
110032007685511' 4063210129: 20799400V35711a
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I JOHN T. BULLOCK(State Bar No. 196809)
ZUZANA S.IKELS(State Bar No.20867 1) t'' I
2 LAUREN S.KOWAL (State Bar No.224976) f 91
COBLENTZ,PATCH,DUFFY&BASS,LLP ;
3 One Ferry Building, Suite 200
San Francisco,California 94111-4213 3 0 2008
4 Telephone: (415)391-4800 p
( ) 5UPER108PP R OP ESYAIEE FCOALIfORN:.
Facsimile: 415 989-1663 A�1, _ ' 1
5 ef-jtb@cpdb.com;ef-Isk@cpdb,com DY--
6
ye6 Attorneys for Petitioner/Plaintiff
C&H SUGAR COMPANY,INC.
7
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
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N Q C&H SUGAR COMPANY,INC., a Delaware Case No. N07-1747
m u a 12 corporation,successor-in-interest to
,a o m CALIFORNIA AND HAWAIIAN SUGAR FIRST AMENDED REVERSE
• 13 COMPANY, VALIDATION ACTION,VERIFIED
LL -" PETITION FOR WRIT OF MANDATE,
X 14 Petitioner/Plaintiff, AND COMPLAINT FOR:
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X < 15 vs. (1) Violation of Article XIII of the
U Wo California Constitution by Imposition
< o 0 16 CROCKETT COMMUNTIY SERVICES of an Impermissible Special Tax;
0. m a DISTRICT,VVa CROCKETT-VALONA (2) Violation of Section 66013 &66016 of
N m 17 SANITARY DISTRICT,a Community the California Government Code;
Services District,DOES 1 through 20, (3) Violation of Section 5470,et seq.,of
w N 18 inclusive, the California Health and Safety
m z a Code;
on 19 Respondents/Defendants. (4) Violation of the Due Process Clause
u of the United States Constitution;
M 20 (5) Violation of the'Due Process Clause
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a of the California Constitution;
21 (6) Violation of the Contracts Clause of
Z the United States Constitution;
0 22 (7) Violation of the Contracts Clause of
the California Constitution;
23 (8) Declaratory Relief;
(9) Breach of Contract;
24 (10) Open Book Account; and
25 (11) Account Stated
26
27
28
13183.001.849518v1 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I Petitioner and Plaintiff C&H Sugar Company, Inc., successor-in-interest to California and
2 Hawaiian Sugar Company, ("C&H")alleges:
3 JURISDICTION
4 1. Defendant is subject to personal jurisdiction for one or more of the following
5 reasons: (a)defendant is a Community Services District organized and existing under the laws of
6 the State of California and is located within the County of Contra Costa, which is the same county
m 7 in which the superior court resides; (b)the contracts, ordinances and resolution at issue were
a" 8 executed and enacted, respectively, in this state and county; and/or(c)plaintiffs causes of action
9 arise out of one or more related transactions by defendant in this state and county.
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a- < 10 VENUE
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0 11 2. Venue in this Court is proper for one or more of the following reasons: (a)plaintiff
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pp U 0 12 has its principal place of business in the City of Crockett in the County of Contra Costa; (b) the
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N ° 13 defendant-agency is located in the County of Contra Costa; (c)the events on which the claims are
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x 14 based occurred in this County; and(e)the property that is the subject of this action is located in
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a o °m 16 IDENTIFICATION OF PARTIES
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N 17 3. Petitioner and plaintiff C&H Sugar Company, Inc., successor-in-interest to
im
Z 18 California and Hawaiian Sugar Company, ("C&H") is a Delaware corporation authorized to do
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U 19 business in the State of California, with its principal place of business in the City of Crockett,
m 20 California, in Contra Costa County.
21 4. C&H is informed and believes,and on that basis alleges, that respondent and
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0 22 defendant Crockett Community Services District("CCSD" or "Defendant"), f/k/a Crockett-Valona
23 Sanitary District("CVSD" or "Defendant"), is a Community Services District organized and
24 existing under the laws of the State of California, located within Contra Costa County.
25 5. C&H is ignorant of the true names of the respondents/defendants sued herein as
26 Does 1-20, and therefore sues said respondents/defendants by said fictitious names. Plaintiff is
27 informed and believes, and thereon alleges, that respondents/defendants Does 1-20 participated in,
28 and are otherwise responsible for, the wrongful conduct described below of the other
13183.001.849518vl I - Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I respondents/defendants. C&H will seek leave of the court to amend this Petition and Complaint to
2 state the true names of respondents/defendants Does 1-20 when such names have been ascertained.
3 6. Plaintiff is informed and believes, and thereon alleges,that each of the
4 respondents/defendants designated as a Doe was the agent and/or employee of each of the
5 remaining respondents/defendants and in doing the things herein mentioned was acting within the
6 scope of such agency and/or employment.
7 FACTUAL ALLEGATIONS
"v 8 7. Since 1906, C&H has been producing and refining pure cane sugar and molasses in
9 the town of Crockett,California, for distribution and sale throughout the United States. The C&H
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L13 - 8. C&H is informed and believes, and on that basis alleges, that in 1953,the Crockett-
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< x v 14 Valona Sanitary District ("CVSD")was formed as an independent special district within the
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= < . 15 County of Contra Costa by the property owners living in and around Crockett, California. CVSD's
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Q o CD 16 primary functions were: (1) to maintain and repair the existing sewer system; and(2)to construct,
(L N Q
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Z m 18 believes, and on that basis alleges,that CVSD was empowered to enter into agreements related to
J 0 a
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o 19 providing those sewer services.
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M 20 9. C&H is informed and believes,and on that basis alleges,that respondent and
L_ 21 defendant CCSD, CVSD's successor, has the same primary functions and was and is similarly
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0 22 empowered within the territory subject to jurisdiction of the CCSD (the "District").
23 10. Crockett and its surroundings are a small community and C&H is the largest
24 business and manufacturer that operates in the District.
25 THE SEWER SERVICE AND JOINT USE AGREEMENTS
26 11. In 1959, C&H and CVSD entered into an agreement by which C&H agreed to help
27 fund the construction of a sewage disposal treatment plant, which C&H would own, in exchange
28 for CVSD's agreement to accept,process and dispose of C&H's domestic, but not its industrial,
13183.001.849518v1 2 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I sewage, from its sugar refinery(the "1959 Agreement"). C&H constructed the plant to have the
2 dual purpose of treating both its refinery process industrial wastes, in addition to allowing for the
3 CVSD to collect,process, and pretreat CVSD's domestic waste.
4. 12. On or about November 9, 1976, C&H and CVSD entered into a Joint Use
5 Agreement(the "Joint Use Agreement"),whereby C&H agreed that the industrial wastewater
6 discharged from C&H's refinery and CVSD's domestic sewage would be collectively treated at the
7 Joint C&H-CVSD Philip F. Meads Water Treatment Plant(the "Joint Treatment Plant," or "JTP").
8 C&H leased an undivided interest in the plant and subleased the underlying real property to CVSD
v 9 so that CVSD could use the JTP for purposes of collection and pretreatment of all domestic
0)
a_ < 10 sewage. Under the Joint Use Agreement, CVSD agreed, inter alfa,to:
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M m 12 disposal by C&H;
T 13 b) reimburse C&H for CVSD's allocated portion of capital costs, as calculated by
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= < . 15 Agreement; and
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N 17 associated with its use of the JTP, as calculated by the formula set forth in the Joint
Z �'N 18 Use Agreement, sections 5(a)-(m). CVSD's share of capital costs and the operating
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0 0 19 and maintenance costs shall be collectively referred to herein as "CVSD's Joint Use
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20 Charge."
21 13. Pursuant to sections 5(h)(1) and(2) of the Joint Use Agreement, C&H agreed to
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0 22 cover all expenses associated with operating and maintaining the JTP and then bill CVSD, through
23 monthly invoices, for CVSD's Joint Use Charge, in accordance with its use of the JTP. CVSD is
24 then required to pay said amount the following month.
25 14. On or about August 14, 1984, CVSD and C&H entered into a Sewer Service
26 Agreement(the "Sewer Service Agreement"). Referencing the 1959 Agreement, the Sewer
27 Service Agreement provided that CVSD would continue to process and dispose of C&H's
28 domestic sewage until November 18, 2000. It also granted C&H a unilateral option to extend the
13183.001.849518v1 3 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
• 0
1 Sewer Service Agreement for an additional 10 years.
2 15. Pursuant to the Sewer Service Agreement, C&H agreed to pay CVSD for C&H's
3 portion of domestic sewage discharged into CVSD's sewer lines ("Contract Sewer Charge"). In
4 accordance with section 2 of the Sewer Service Agreement, the Contract Sewer Charge was to be
5 calculated based on data collected from flow meters installed in and around the JTP, which in
6 theory would exclude the other sources of waste. In addition, C&H agreed to pay for 1/12 of
M 7 CVSD's total expenses associated with its use of the JTP.
v 8 16. In reasonable reliance on the above-referenced agreements, C&H invested and has
9 expended millions of dollars to construct, operate, repair, and maintain the JTP in Crockett for
m
n. < 10 approximately 50 years.
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p� 12 2000, C&H and CVSD, by their practice and conduct, effectively agreed to extend the Sewer
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0 13 Service Agreement.
LL U N
Z) < X 14 18. CVSD's invoices to C&H, from 2000 through 2005, for its Contract Sewer Charge, f
C) LL <
= < . 15 were calculated on the basis that C&H's sewage flow discharge for domestic sewage was 0.0518
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Q o 0 16 million gallons per day ("MGD").
0 00
1L N }
N 17 ENACTMENT OF ORDINANCES 06-1 AND 07-2 AND ADOPTION OF RESOLUTION
Z n 06/07-22
W N 18
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20 July ], 2006 ("Ordinance 06-l"). Ordinance 06-1 significantly increased the rates for non-
21 residential property, and in particular, the Contract Sewer Charge paid by C&H, requiring
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0 22 payment of a$349 flat fee plus $5.80 per 100 cubic feet of volume discharged ("Sewer Fees"). On
23 a per unit basis,the new Sewer Fees are significantly greater than the prior charges assessed
24 against C&H.
25 20. In Ordinance 06-1, CVSD identified three ostensible justifications for the increased
26 rates: "To provide for operations and maintenance of CVSD during the 2006-2007 fiscal year,to
27 partially fund the Capital Improvement Budget, and to replace a portion of the ad valorem taxes
28 taken by the State of California since 1992-1993." Ordinance 06-1 provides no administrative
13183.001.8495 19,1 4 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 review process by which an affected party may challenge the imposition of the increased fees or
2 challenge the accuracy of the flow data or the calculations when applied.
3 21. On information and belief,no notice of the passage of the ordinance was sent to
4 C&H by mail. A notice ostensibly published in the West County Times stated the hearing would
5 take place on June 21, 2006, not June 28, 2006. In any event, CVSD did not provide advance
6 notice to C&H that it would be considering Ordinance 06-1, or acting to raise the sewer user rates,
7 at the June 28,2006 meeting. Moreover,on information and belief, CVSD was aware at the time
"a 8 that C&H was not within the boundaries or jurisdiction of CVSD and that Ordinance 06-1 was not
v 9 applicable or enforceable as against C&H. While it is possible that notice of passage of Ordinance
m
a. 10 06-1 may have appeared in the West County Times, that notice omitted any reference to collection
Jz
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>- T Ln m 13 to C&H, two weeks later, on or about July 11, 2006, CVSD dissolved itself, and defendant
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ax 14 Crockett Community Services District ("CCSD") was formed and became its successor. On
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= . 15 information and belief, CVSD assigned and transferred all its assets and liabilities to CCSD.
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a o m 16 23. On July 19, 2006, CCSD held its first meeting and claimed that it had notified
a- cu v
N m 17 C&H that the "refinery is now inside the boundaries of Crockett CCSD" and that it needed to
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w N 18 "develop an ordinance" to charge for sewer service. According to the meeting minutes, CCSD
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LL 21 passed Ordinance 06-1, and further asserting that the ordinance replaced any "out-of-agency
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0 22 contract" with C&H with respect to assessing Contract Sewer Charges. It invoiced C&H for
23 $406,647 in Sewer Fees. It also sought an additional $252,870, which CCSD claimed was based
24 upon a re-calculation of C&H's sewage output in 2005-2006. CCSD did not explain what formula
25 it applied with respect to determining the latter charge. The two charges shall be collectively
26 referred to as the "August 29 Invoice."
27 25. C&H challenged the August 29 Invoice on the grounds that CCSD was using.
28 improper flow data, was retroactively applying Ordinance 06-1, and because the formula was not
13183.001.849518v1
5 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION, PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 rationally related to CVSD's cost of collecting and treating C&H's domestic sewage. Accordingly,
2 C&H refused to pay the August 29 Invoice.
3 26. On June 12, 2007, CCSD sent a letter to C&H notifying C&H that CCSD would be
4 considering whether to assess C&H's purportedly delinquent sewer fees on its tax bill at an
5 upcoming CCSD meeting on June 27, 2007. Accordingly, C&H began developing a presentation
6 to oppose the resolution and attend the hearing.
ro 7 27. Three days later,however, CCSD sent C&H another letter, dated June 15, 2007,
a 8 notifying C&H that it would not be considering whether to pass a resolution to add C&H's
v 9 delinquent charges to the tax roll at the meeting on June 27, 2007. Neither the June 12 nor June
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<_ 10 15 letter provided notice of CCSD's plan to consider passing any another ordinance or resolution
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TCO
N °N' 13 fact consider and pass Resolution 06/07-22,which, on its face,purported to authorize CCSD to
U. U _
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X 14 place sewer service charges on C&H's tax bill.
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< . 15 29. In that same meeting on June 27, 2007, CCSD also considered and passed
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o m 16 Ordinance 07-2. In Ordinance 07-2,.CCSD states that it is increasing sewer fees to provide for
N d
N m 17 operations and maintenance of the District during the 2007-2008 fiscal year,to partially fund the
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O 19 valorem taxes taken by the State. As written, Ordinance 07-2 gives CCSD full and unfettered
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LL 21 or by placing the charge on the tax roll, but does not comply or require compliance with applicable
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0 22 state laws in connection with these ad hoc determinations. Ordinance 07-2 repealed Ordinances
23 06-1 and 93-2.
24 30. In Ordinance 07-2, CCSD also explained that it would be calculating the Sewer
25 Fees differently for residential and non-residential properties. Although CCSD would continue to
26 charge residential homes a flat fee based upon an average amount of water consumption for
27 single-family homes within the District, it had the option to charge manufacturers a flat rate of
28 $395.00 plus $6.48 per 100 cubic feet of water consumption or sewage output, apparently at the
13183.001.849518vl 6 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE'AND
COMPLAINT
I sole and unfettered discretion of CCSD. Ordinance 07-2 does not state the basis for this charge in
2 that it does not set forth the calculation used to derive the new, higher Sewer Fees. Ordinance 07-
3 2 further provided that, with respect to manufacturers, it would be assessing Sewer Fees based on
4 the volumetric amount of water intake,unless the manufacturer could prove that it did not
5 discharge all of the water back into CCSD's sewer system. It specified that the burden would be
6 on the manufacturer to prove that the water used did not re-enter CCSD's sewage system. No
7 procedure is provided, however, by which an affected manufacturer is to be given notice of the
"v 8 basis or calculation of the charge, may contest the charge or seek to prove it uses a substantial
v 9 amount of water in its manufacturing process, and no standards or definitions are provided to
m
a. <_ 10 explain or justify what a "substantial" amount of water means for purposes of the ordinance.
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° 0 11 31. The process of refining sugar consumes a tremendous amount of water,which is
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U12 either absorbed and/or not discharged back into CCSD's sewage pipes, and,on information and
>_ Tm 13 belief, CVSD knew this at the time Ordinance 06-1 was adopted, and CCSD knew this when it
U_ UU �0
X 14 attempted to assess Sewer Fees against C&H in 2006, and thereafter. With a few relatively minor
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= a . 15 exceptions, C&H's industrial wastewater from the refining process is not treated by CCSD's
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< °o co 16 sewage system. Moreover, as was acknowledged by CCSD in the Joint Use and Sewer Service
CL
ni 17 Agreements, C&H processes and treats its industrial waste, along with CCSD's pre-treated
Ll �'. N 18 domestic sewage, in a separate section of the JTP. By authorizing Sewer Fees to be based on
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19 water intake, the effect of Ordinance 07-2 is to authorize dramatic overcharging of C&H in light
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21 FIRST CAUSE OF ACTION
W (Violation of Article XIII of the California Constitution and Government Code sections
0 22 53720,et seq.)
23 32. Plaintiff incorporates herein by this reference the allegations contained in
24 paragraphs I through 31, inclusive.
25 33. By enacting and implementing Ordinance 06-1 and Ordinance 07-2 (collectively,
26 the "Ordinances"), CCSD has violated, and continues to violate, Articles XIII C and D of the
27 California Constitution and/or Government Code Sections 53720 et seq.. The Sewer Fees
28 imposed by the Ordinances constitute either: (1) special taxes within the meaning of Article XIII C
13183.001.849518v1 7 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I of the California Constitution and Government Code Sections 53720 et seq.; (2) special
2 assessments within the meaning of Article XIII D; or(3) charges incidental to ownership within
3 the meaning of Article XIII D. In any event, CCSD failed to comply with the procedures
4 prescribed under Article XIII and Government Code Sections 53720 et seq. for special taxes,
5 special assessments, and/or new or increased property related charges. The Ordinances are
6 therefore invalid and unenforceable.
7 34. The Sewer Fees imposed by the Ordinances are "special taxes" within the meaning
a 8 of Article XIII C of the California Constitution and Government Code Sections 53720 et seq.
9 because(1) they exceed the reasonable cost of providing the services for which they are charged;
0)
a_ < 10 and (2)they are levied for general revenue purposes. As such, to be lawful,they must be
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N ° W 11 approved by two-thirds of the District's voters. The failure to obtain this approval for the Sewer
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12 Fees violates the California Constitution and the California Government Code.
ON
>_ T 0 13 35. Alternatively, the Sewer Fees imposed by the Ordinances constitute "special
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a X 14 assessments" within the meaning of Article XIII D § 2. As such, the Sewer Fees are unlawful for
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_ < . 15 at least the following reasons: (1) CCSD failed to notify C&H that the proposed increases to the
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a o °m 16 Sewer Fees were to be considered by public hearing; (2)CCSD failed to provide notice of the
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N m 17 basis on which the proposed Sewer Fee increases were calculated; (3) CCSD failed to give 45 days
w �'.N 18 notice of the public hearings by mail; (4) CCSD failed provide a mechanism for ballots to be
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0 0 19 submitted in opposition to the proposed Sewer Fees (weighted according to the proportional
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W21 to be defeated by a majority of ballots in opposition; and(5)the amount of the Sewer Fees
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0 22 exceeds the reasonable cost,of the proportional benefit conferred on C&H's property.
23 36. Alternatively,the Sewer Fees constitute fees or charges incidental to property
24 ownership within the meaning of Articles XIII C and D. As such,the Sewer Fees are unlawful for
25 at least the following reasons: (1) CCSD failed to provide the requisite written notice to C&H by
26 mail of the proposed Sewer Fees, the basis upon which the Sewer Fees were calculated, the reason
27 for the Sewer Fees, and the date, time and location of the public hearing on the proposed Sewer
28 Fees; (2) CCSD failed to conduct a public hearing on a date at least 45 days after mailing the
13183.001.849518v1 g Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 notice; (3) CCSD failed to properly allow for protests against the proposed Sewer Fees, which
2 would have allowed the Sewer Fees to be defeated by the protest of a majority of the owners of the
3 affected parcels; (4)the revenues derived from the Sewer Fees exceed the funds required to
4 provide sewer•services; and (5)the revenues derived from the Sewer Fees are used for purposes
5 other than providing sewer services.
6 37. Accordingly, C&H requests that the Court declare that the Sewer Fees imposed by
7 the Ordinances violate the California Constitution and/or the California Government Code,
v 8 rendering the Ordinances invalid and unenforceable. C&H further requests that the Court declare
9 that Resolution 06/07-22 is invalid and unenforceable, for the reasons stated above.
m
CL 10 38. C&H further requests a writ of mandate and permanent injunction prohibiting
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° W 11 CCSD from requesting, demanding, or collecting the unlawful Sewer Fees, and from placing those
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mU m. 12 fees on C&H's tax bill, or in any way enforcing the Ordinances or Resolutions against C&H.
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o m 13 SECOND CAUSE OF ACTION
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LL < o (Violation of Sections 66013 and 66016 of the California Government Code)
x 14
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=a . 15 39. Plaintiff incorporates herein by this reference the allegations contained in
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Z N 18 imposed by Ordinance 07-2 may include "capacity charges" or "connection fees" as those terms
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Uo 19 are used in Section 66013 of the California Government Code. To the extent; if at all, the Sewer
a
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20 Fees include capacity charges or connection fees, they exceed the estimated reasonable cost of
a
21 providing the services for which the charges are imposed. However, those charges were not
LLw
0 22 submitted to, or approved by, a popular vote of two-thirds of the District's voters. The imposition
23 of these fees, therefore, accompanied by the failure to obtain the requisite voter approval, violates
24 Sections 66013 and 66016 of the California Government Code.
25 41. This action has been brought within 120 days of July 1, 2007, the effective date of
26 Ordinance.07-2.
27 42. California Government Code Section 6016 also requires that,to the extent the
28 contemplated fee is subject to its provisions(here, to the extent the Sewer Fees represent a
I3183.001.849518YI 9 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 "capacity charge"),prior to approving an increase in an existing fee or service charge,a local
2 agency must follow certain procedures, including: (a)mailing the prescribed notice at least 14
3 days prior to the meeting to interested parties; and (b) at least 10 days before the meeting, making
4 certain data available to the public regarding the cost of providing the service and the revenue
5 sources anticipated to provide the service. On information and belief, CCSD failed to follow these
6 procedures with respect to Ordinance 07-2, in violation of Section 66016 of the California
7 Government Code.
v 8 43. Accordingly, C&H requests that,to the extent (if at all)some or all of the Sewer
9 Fees arising from Ordinance 07-2 constitute capacity charges or connection fees, the Court declare
m
CL e 10 that portion of the Sewer Fees null and void and unenforceable because the fees violate California
J z
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° W 11 Government Code Sections 66013 and 66016 as fees or charges in excess of the estimated
J
mu` m 12 reasonable cost of providing the sewer services for which the charges are imposed, because CCSD
>_ T °N' 13 violated Government Code sections 66013 and 66016 in approving said fees, and because the fees
1Lv _
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x 14 were not approved by a two-thirds vote of the members of the legislative body of the District, as
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=N 15 required by the Health& Safety Code.
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a oro 16 44. C&H further requests a writ of mandate and permanent injunction prohibiting
dNa
N m 17 CCSD from requesting, demanding, or collecting the unlawful capacity charges, and from placing
Z �'m 18 those fees on C&H's tax bill, or in any way enforcing Ordinance 07-2 to the extent, if at all, the
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0 0 19 sewer fees constitute fees or charges governed by Government Code sections 66013 and 66016.
U �
M 20 THIRD CAUSE OF ACTION
(Violation of California Health & SafetV Code section 5470 et seq.)
21
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0 22 .45. Plaintiff incorporates herein by this reference the allegations contained in
23 paragraphs 1 through 44, inclusive.
24 46. Health and Safety Code Section 5473 sets forth the notice that an entity must
25 provide before adopting an ordinance or resolution to collect sewer service charges on the tax roll.
26 In particular, CCSD is required to prepare and file a written report containing certain specified
27 information, which report must be published in accordance with Government Code Section 6066.
28 CCSD must hear and consider any objections or protests to said report. If protest is made by
13183.001.849518v1 10 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I owners of a majority of separate parcels described in the report,then the report shall not be
2 adopted and the charges shall be collected separately from the tax roll and shall not constitute a
3 lien against any parcel of land.
4 47. CCSD failed to provide the requisite notice, or file the complete and conforming
5 requisite reports, with respect to Resolution 06/07-22 and Ordinance 07-2,both of which purport
6 to provide for the collection of C&H's sewer service charges on the tax roll. Moreover, if CCSD
7 did publish notice of the hearing, or provide notice by mail to C&H, that notice indicated that the
a 8 hearing would take place on June 21, 2007, whereas the hearing actually occurred on June 28,
v 9 2007. Prior to that date, CCSD specifically informed C&H that it would not be considering
m
CL 10 assessment of C&H's Contract Sewer Charges or Sewer Fees on the tax rolls at the June 27, 2007
_Jz
U) ° W 11 meeting. Contrary to its representations, CCSD did consider and passed both Ordinance 07-2 and
LO < `°
m m 12 Resolution 06/07-22 at the June 28, 2007 meeting.
0 0 13 48. Accordingly, C&H requests that the Court declare that Resolution 06/07-22 and
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¢ x v 14 Ordinance 07-2 are null and void and unenforceable because CCSD failed to provide the requisite
ate ¢
a . 15 notice, or rile the complete and conforming requisite reports,prior to enacting the Ordinance and
U'N
~ o 0 16 Resolution, and because the Resolution and Ordinance were not enacted by a two-thirds vote of
Qoro
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N m 17 the members of the governing body of CCSD, as required by the Health& Safety Code.
w N N 18 49. C&H further requests a writ of mandate and permanent injunction prohibiting
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o 19 CCSD from placing delinquent, current or prospective sewer service charges on the tax rolls
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m 20 unless and until the proper procedures are followed, or in any way enforcing Resolution 06/07-22
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0 22 FOURTH CAUSE OF ACTION
(Violation of the Due Process Clause of the United States Constitution)
23
24 50. Plaintiff incorporates herein by this reference the allegations contained in
25 paragraphs 1 through 49, inclusive.
26 51. At all relevant times, CCSD was a local agency operating under the color of state
27 law. By enacting and implementing Ordinances 06-1 and 07-2 and Resolution 06/07-22, CCSD
28 has deprived C&H of its property and contractual rights without due process of law in violation of
13183.001.849518vi 11 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
2 52. The California Health and Safety Code (Section 5473)and California Government
3 Code (Section 61115)set forth the process that CCSD must afford to affected property owners
4 before adopting an ordinance or resolution to have sewer service charges related to that property
5 collected on the tax roll.
6 53. CCSD failed to provide the requisite notice to C&H with respect to Resolution
7 06/07-22 and Ordinance 07-2, both of which provided for the collection of sewer service charges
a 8 on the tax roll. It therefore deprived C&H of notice and an adequate opportunity to be heard on
9 the issue.
m
CL <_ 10 54. Further, to the extent that the Ordinances levied a special assessment and/or
J z
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m U 12 information therein, as required by Articles XIII C and D of the California Constitution, and failed
0 CD
° 13 to adequately allow for objection or protest which could have defeated the proposed Sewer Fees.
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0 14 It therefore deprived C&H of notice and an adequate opportunity to be heard on the issue.
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_ < . 15 55. CCSD also failed to obtain the requisite two-thirds vote of the District's voters, as
UN
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~ 0 0 16 required by Government Code Section 66013, and, to the extent the Sewer Fees imposed by the
< ow
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N W _, 17 Ordinances constitute special taxes, Article XIII C &D of the California Constitution. This also
w w N 18 deprived C&H of notice and an adequate opportunity to be heard. Ordinance 07-2 and Resolution
J U V
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19 06/07-22 were not passed by a two-thirds majority of the legislative body of the District, as
m 20 required by the Health & Safety Code.
21 56. Moreover, CCSD's enactment and implementation of the Ordinances, and its
LLW
0 22 imposition of the Sewer Fees and other conditions upon C&H,violated due process in that these
23 acts were arbitrary, capricious and unreasonable in at least the following respects: (1) the
24 Ordinances have the effect of circumventing the terms of the Sewer Service Agreement, which
25 sets forth the rates that CCSD may charge to C&H for sewer service; (2) the Sewer Fees exceed
26 the estimated reasonable cost of providing sewer services; (3) the Sewer Fees far exceed the
27 proportional cost of C&H's use of or burden on the sewer system; (4)the Sewer Fees, to the extent
28 they are based on water consumption rather than sewage output, are arbitrary, unreasonable, and
13183.001.849518v1 12 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 not rationally related to the costs incurred by CCSD; (5)the Ordinances are impermissibly vague
2 in that they do not define "substantial" or otherwise delineate clear and uniform standards for
3 application of their provisions; (6)the Ordinances impermissibly attempt to shift the burden of
4 proof with respect to the rationality of CCSD's action to a manufacturer, and fail to provide any
5 mechanism for notice or opportunity to be heard on that or any other issue arising thereunder; and
6 (7) the "penalty" of 10% for late payments, plus 1'/2%per month, is arbitrary,unreasonable,
7 capricious and not rationally related to CCSD's actual costs of providing services.
N 8 57. CVSD's adoption of Ordinance 06-1, in particular, and CCSD's attempt to enforce
¢ 9 that ordinance against C&H, violated due process because at the time Ordinance 06-1 was
m
It. a 10 adopted, C&H was not within the District, and CVSD was without authority or jurisdiction to pass
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W 11 any ordinance applicable to C&H, and C&H was not, and is not, subject to the terms of that
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>- N ui 13 58. C&H has incurred and will continue to incur attorneys' fees and costs in
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x 14 challenging the Ordinances and Resolution 06/07-22 in amounts that are not currently
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= a 15 ascertainable. These fees and costs are recoverable in this action pursuant to 42 U.S.C. § 1988(b).
U N
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a o 0 16 59. Accordingly, C&H requests that the Court declare that Ordinances 06-1 and 07-2
(LrdV
N 0) 17 and Resolution 06/07-22 are null and void and unenforceable because they violate the Due Process
Z ui 18 Clause of the United States Constitution, for the reasons set forth above.
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UD
C) 20 CCSD from requesting, demanding, or collecting the unlawful charges, or placing delinquent,
Y
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0 22 until the proper procedures are followed, or in any way enforcing Ordinances 06-1 and 07-2 and
23 Resolution 06/07-22 against C&H.
24 FIFTH CAUSE OF ACTION
(Violation of the Due Process Clause of California Constitution)
25
26 61. Plaintiff incorporates herein by this reference the allegations contained in
27 paragraphs 1 through 60, inclusive.
28 62. By enacting and enforcing the Ordinances under the facts alleged above, CCSD has
13183.00L849518v1 13 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I violated and continues to violate the Due Process Clause of the California Constitution (Cal.
2 Const., Art. I, § 7) in that these acts were arbitrary, capricious and unreasonable in at least the
3 following respects: (1)the Ordinances have the effect of circumventing the terms of the Sewer
4 Service Agreement, which sets forth the rates that CCSD may charge to C&H for sewer service;
5 (2) the Sewer Fees exceed the estimated reasonable cost of providing sewer services; (3)the
6 Sewer Fees far exceed the proportional cost of C&H's use of or burden on the sewer system;
7 (4) the Sewer Fees,to the extent they are based on water consumption rather than sewage output,
a 8 are arbitrary, unreasonable, and not rationally related to the costs incurred by CCSD; (5)the
9 Ordinances are impermissibly vague in that they do not define "substantial" or otherwise delineate
m
a < 10 clear and uniform standards for application of their provisions; (6)the Ordinances impermissibly
J z
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N °M 11 attempt to shift the burden of proof with respect to the rationality of CCSD's action to a
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12 manufacturer, and fail to provide any mechanism for notice or opportunity to be heard on that or
>- ( CO
°' 13 an other issue arising thereunder; and 7 the "penalty" of 10% for late payments,plus 1/2/° per
• Y g ( ) ��P tY�� ° P Y ,P ' °
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M X 14 month, is arbitrary, unreasonable, capricious and not rationally related to CCSD's actual costs of
OU. a
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a o 0 16 63. CCSD also failed to comply with the due process requirements of Article XIII C
0-
N 17 and D of the California Constitution and California Government Code Sections 53720 et. seq. The
Z °'N 18 Sewer Fees are also substantively infirm in that the amounts are in excess of the proportional cost
Jt9V
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0 19 of the sewer service and are, on information and belief, intended to raise revenue for other
m 20 governmental purposes and services.
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21 64. CVSD's adoption of Ordinance 06-1, in particular, and CCSD's attempt to enforce
LLw
0 22 that ordinance against C&H, violated due process because at the time Ordinance 06-1 was
23 adopted, C&H was not within the District,and CVSD was without authority or jurisdiction to pass
24 any ordinance applicable to C&H, and C&H was not, and is not, subject to the terms of that
25 ordinance.
26 65. C&H has incurred and will continue to incur attorneys' fees.and costs because of
27 this proceeding which are recoverable under state law pursuant to Code of Civil Procedure
28 § 1021.5.
13183.001.849518v1 14 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 66. Accordingly, C&H requests that the Court declare that Ordinances 06-1 and 07-2
2 and Resolution 06/07-22 are null and void and unenforceable because they violate the Due Process
3 Clause of the California Constitution, for the reasons set forth above.
4 67. C&H further requests a writ of mandamus and permanent injunction prohibiting
5 CCSD from requesting, demanding, or collecting the unlawful fees, or placing delinquent or
6 prospective sewer service charges on the tax rolls unless and until the proper procedures are
7 followed, or in any way enforcing the Ordinances 06-1 and 07-2 and Resolution 06/07-22 against
a 8 C&H.
v 9 SIXTH CAUSE OF ACTION
rn (Violation of the Contracts Clause of the United States Constitution)
IL < 10
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a ° 11 68, Plaintiff incorporates herein by this reference the allegations contained in
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M U m 12 paragraphs I through 67, inclusive.
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>- 0 0113 69. CCSD has violated, and continues to violate, the Contracts Clause of the United
U. U-
D a X 14 States Constitution(U.S. Const.,Art. I, § 10, cl. 1).
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UN
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a 00 0 16 certain contractual rights in connection with the provision and use of sewer services as well as the
Q. N Q
N 0 17 associated charges and fees. Among other things, CCSD is required to provide C&H with sewer
� � m
Jui 18 services at a specified rate under the Sewer Service Agreement. In addition,pursuant to the Joint
m ? a
0 19 Use Agreement, CCSD is required to pay for its share of operating and maintenance costs
U �
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}
21 71. The Ordinances constitute a substantial, direct and unconstitutional impairment of
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0 22 the Sewer Service Agreement. In enacting and enforcing the Ordinances, CCSD has attempted
23 unilaterally to modify the Sewer Service Agreement by requiring C&H to pay for sewer service at
24 rates which far exceed those contained in the Sewer Service Agreement, while avoiding its
25 responsibilities under the Joint Use Agreement.
26 72. These excessive rates are contrary to the established course of conduct and dealing
27 between the C&H and CCSD and its predecessors for over fifty years before the enactment of the
28 Ordinances.
13183.001 A49518v 1 15 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION, PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 73. The impairment of the Sewer Service and Joint Use Agreements by CCSD is
2 neither reasonable nor necessary, and does not serve a significant, legitimate public purpose
3 justifying the unilateral modification and/or termination of the Agreement.
4 74. C&H has incurred and will continue to incur attorneys' fees and costs because of
5 this proceeding, in amounts that cannot yet be ascertained, which are recoverable in this action
6 under.the provisions of 42 U.S.C. § 1988(b).
7 75. Accordingly, C&H requests that the Court declare that Ordinances 06-1 and 07-2
"a 8 are null and void and unenforceable because they violate the Contracts Clause of the United States
9 Constitution,for the reasons set forth above.
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a 10 SEVENTH CAUSE OF ACTION
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(t (Violation of Contracts Clause of the California Constitution)
° "' 11
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tp o 0) 12 76. C&H incorporates herein by this reference the allegations contained in paragraphs
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N 13 1 through 75, inclusive.
Y N
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y � X 14 77. By enacting and enforcing the Ordinances, under the facts alleged above, CCSD
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x < . 15 has violated and continues to violate the Contracts Clause of the California Constitution (Cal.
UN
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a o 0 16 Const., Art. I, § 9).
a ti a
ni 17 78. C&H has incurred and will continue to incur attorneys' fees and costs because of
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Z �- ui 18 this proceeding that are recoverable under state law pursuant to California Code of Civil Procedure
J 0 7
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a o 19 § 1021.5.
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m 20 79. Accordingly, C&H requests that the Court declare that Ordinances 06-1 and 07-2
cr
21 are null and void and unenforceable because they violate the Contracts Clause of the California
W
0 22 Constitution, for the reasons set forth above.
23 EIGHTH CAUSE OF ACTION
(Declaratory Relief)
24
25 80. Plaintiff incorporates herein by this reference the allegations contained in
26 paragraphs 1 through 79, inclusive.
27 81. An actual controversy has arisen between CCSD and C&H regarding whether the
28 requirements imposed by CCSD on C&H through the Ordinances violate the terns of the Sewer
13183.001.849518v1 16 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I Service Agreement, which sets forth the sewer service charges that are to be paid by C&H to
2 CCSD for sewer service. C&H claims, inter alfa, that the Ordinances violate the Sewer Service
3 Agreement, and that by enacting the Sewer Service Agreement, CCSD has improperly and
4 unilaterally attempted to change the terms of the Sewer Service Agreement. CCSD disagrees.
5 82. CCSD's unilateral and unlawful imposition of the Sewer Fees on C&H constitutes a
6 breach of the Sewer Service Agreement and an improper unilateral modification and/or attempted
7 termination of the Sewer Service Agreement.
v 8 83. In addition, CCSD contends,and C&H denies,that C&H owes additional amounts
9 for Contract Sewer Charges for the period of 2005-2006. CCSD's contention is based upon an
0)
tt < 10 improper and inflated calculation of C&H's sewage flow in violation of the parties' agreement,
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N ° (D 11 which specified that the flow value was to be :0518 MGD for purposes of calculating the fee.
(nQ (D
m 0 12 84. Accordingly, C&H requests that the Court declare that Ordinances 06-1 and 07-2
CO
>- oLn 6 13 violate and breach the terms of the Sewer Service Agreement, and are, therefore, null and void and
tiU _
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< X 14 unenforceable. C&H further requests that the Court declare that C&H owes no further amounts to
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= < 15 CCSD for the period 2005-2006.
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<o 0co16 85. C&H further seeks a declaration that Ordinance 06-1 does not and cannot apply to
F jm 17 C&H, and may not be the basis of an assessment of Sewer Fees against C&H because C&H's
m
Z �'N 18 property was not within the boundaries of the District at the time of enactment, and therefore,
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0 0 19 CVSD did not have jurisdiction, authority or power over C&H at the time of enactment.
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(Breach of Joint Use Agreement)-
21
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22 86. Plaintiff incorporates by this reference the allegations contained in paragraphs 1
23 through 85, inclusive.
24 87. C&H and CCSD are parties to the Joint Use Agreement, a valid and enforceable
25 written contract.
26 88. ' Within the past four years, CCSD breached its contractual obligations to C&H
27 under the Agreement by failing and refusing to pay amounts due and owing under that agreement
28 to C&H. On October 24, 2007, C&H presented its claim to CCSD, pursuant to Government Code
13183.001.8495180 17 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I Section 905, et seq., demanding payment of approximately$800,000,which at that time was the
2 total amount due and owing from CCSD to C&H(the "Claim Letter"); CCSD did not respond to
3 the Claim Letter.
4 89. C&H has performed all material conditions, covenants, promises, and obligations it
5 was required to perform in accordance with the terms and conditions of the Joint Use Agreement.
6 90. CCSD breached the Joint Use Agreement by failing to pay C&H for amounts due
m 7 under that agreement.
N 8 91. C&H has suffered damages as a result of said breach. The amount of such
a 9 damages will be proven at trial, but is expected to exceed$566,371.20,together with interest at the
m
EL < 10 statutory rate, and attorneys' fees.
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0 M 11 TENTH CAUSE OF ACTION
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< (Open Book Account)
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13 92. Plaintiff realleges and incorporates by reference the allegations contained in
dw
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W 14 paragraphs 1 through 91 of this Complaint as though fully set forth herein.
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Y < . 15 93: Within the past four years, Plaintiff, in accordance with its regular business
UN
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a 0 0 16 practice, has maintained an open book account for CCSD, which account records all debits and
aNv
m 17 credits made in connection with amounts owed by CCSD arising out of the Joint Use Agreement.
w Ln 18 CCSD is currently indebted to Plaintiff on the open book account for money due in the sum of
Uz
19 $566,371.20, together with interest thereon at the statutory rate.
M 20 94. Defendant has not disputed that$566,371.20 is the accurate account balance or
W 21 argued that C&H did not keep this account in the ordinary course of business. Neither the whole
W
0 22 nor any part of the above sum has been paid and there is now due, owing, and unpaid the sum of
23 $566,371.20, together with interest at the statutory rate.
24 95. Plaintiff has incurred attorneys' fees.in connection with this matter, in an amount to
25 be determined at trial, which fees Plaintiff is entitled to recover from Defendants pursuant to the
26 agreement and Civil Code section 1717.5.
27
28
13183.001.849518v 1 18 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 ELEVENTH CAUSE OF ACTION
(Account Stated)
2
3 96. Plaintiff realleges and incorporates by reference the allegations contained in
4 paragraphs l through 95 of this Complaint as though fully set forth herein.
5 97. Within the past four years, at Crockett, California, an account was stated in writing
6 by and between Plaintiff and Defendant,wherein it was agreed that Defendant was indebted to
m 7 Plaintiff in the sum of$566,371.20, together with interest thereon at the rate of one percent per
vN
8 month, for CCSD's proportionate share of operating and maintenance costs for CCSD's use of the
9 JTP that were covered by C&H.
m
<_ 10 98. The monthly invoices that were sent to CCSD from C&H for amounts due and
Jz
N ° W 11 owing for the District's proportionate share of operating and maintenance costs associated with its
U) < (o
m 12 use of the JTP reflect a total amount due and payable from CCSD for its operating and
� 0 UD
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L13 maintenance costs of$566,371.20.
N
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X 14 99. After receiving the invoices and Claim Letter, Defendants did not dispute that
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x < . 15 $566,371.20 was the accurate account amount owed. None of this sum has been paid and there is
UN
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�- 0 0 16 now due, owing, and unpaid the sum of$566,371.20, together with interest thereon at the statutory
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a. Nc
N � m 17 rate, and attorneys' fees.
�- 5M
Z u; 18 PETITION FOR WRIT OF MANDATE
m
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0 0 19
m 20 100. C&H incorporates by reference the allegations set forth in paragraphs I through 99
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21 above.
LLW
0 22 101. CCSD is under a mandatory legal duty to act in accordance with law, including but
23 not limited to the requirements and limitations of the Contracts and Due Process Clauses of the
24 United States Constitution,the Contracts and Due Process Clauses of the California Constitution,
25 Article XIII of the California Constitution, Government Code Sections 53720 et seq., and 66013
26 and 66016, et seq., Health and Safety Code Section 5470 et seq., to act within its jurisdiction and
27 to exercise only those powers authorized by state law, to provide notice of any proposed increases
28 to the sewer service fees and any proposal to assess the sewer service charges on C&H's tax roll,
13183.001.849518v1 19 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 and to charge C&H no more than the reasonable proportional cost actually incurred by CCSD in
2 providing sewer services related to C&H's domestic sewage. Notwithstanding these mandatory
3 duties, CCSD has failed and refused to comply with state and federal law.
4 102. Petitioner is aggrieved by and beneficially interested in CCSD's passage of the
5 Ordinances and Resolution because CCSD has imposed on,demanded from,and assessed to C&H
6 unreasonably exorbitant and unlawful sewer service fees, and has impermissibly placed delinquent
7 and prospective sewer service fees on C&H's tax bill.
a 8 103. To the extent any existed or are applicable, petitioner has exhausted its
v 9 administrative remedies, but with respect to the constitutional and Government Code challenges to
m
(L < 10 the Ordinances and Resolution, no administrative remedies are applicable, and C&H has no plain,
J z
N ° 11 speedy and adequate remedy at law.
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mU 0. 12 104. C&H therefore requests that this Court issue a peremptory writ of mandate:
>- � CO
01 13 commanding CCSD to repeal,dissolve and/or nullify Ordinances 06-1 and 07-2 and Resolution
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U- ° _
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or X 14 06/07-22, and remove any Sewer Fees from the tax rolls; or, in the alternative,to declare that
0 w a
=a 15 C&H is exempt or excepted from, or otherwise not subject to the terms of, and enjoin CCSD from
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Q 16 applying or enforcing against C&H, Ordinance 06-1, Ordinance 07-2 and Resolution 06/07-22;
a- op
17 declaring that Ordinance 06-1, Ordinance 07-2 and Resolution 06/07-22 are unconstitutional and
w � 18 violate Government Code Sections 53720 et. seq., and 66013 and 66016, et seq., and Health and
� 0a
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O o 19 Safety Code Section 5470 et seq.; and declare that the imposition of the Sewer Fees are unlawful
U �
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21 PRAYER FOR RELIEF
W
0 22 WHEREFORE, C&H prays for judgment against CCSD as follows:
23 1. That the Court issue a peremptory writ of mandate: commanding CCSD to repeal,
24 dissolve and/or nullify Ordinances 06-1 and 07-2 and Resolution 06/07-22, and remove any Sewer
25 Fees from the tax rolls; or in the alternative,to declare that C&H is exempt or excepted from, or
26 otherwise not subject to the terms of, and enjoin CCSD from applying or enforcing against C&H,
27 Ordinance 06-1,Ordinance 07-2 and Resolution 06/07-22; declaring that Ordinance 06-1,
28 Ordinance 07-2 and Resolution 06/07-22 are unconstitutional; and declaring that the imposition of
13183.001.849518v1 20 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 the Sewer Fees are unlawful and unconstitutional as applied to C&H.
2 2. For a judicial declaration that C&H is exempt or excepted from, or otherwise not
3 subject to the terms of, and CCSD may not apply or enforce against C&H, Ordinance 06-1,
4 Ordinance 07-2 and Resolution 06/07-22;
5 3. For a judicial declaration stating that Ordinance 06-1, Ordinance 07-2 and Resolution
6 06/07-22 are unconstitutional;
7 4. For a judicial declaration stating that the imposition of the Sewer Fees are unlawful
a 8 and unconstitutional as applied to C&H;
a 9 5. For an adjudication that Ordinance 07-2 is void and invalid under the California
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CL <_ 10 Government Code, and for a declaration that no lien may be applied to C&H's property for failure
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N ° 11 to pay any fee or service charge pursuant to that Ordinance;
m U 12 6. For an injunction against CCSD directing CCSD to repeal, dissolve and/or nullify, and
m 13 reventin the enforcement of the provisions of Ordinance 06-1, Ordinance 07-2 and Resolution
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< c 14 06/07-22 against C&H, or mandating that CCSD exempt C&H from the terms of those
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a o °m 16 7. For a permanent injunction prohibiting CCSD from requesting, demanding, or
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N W 17 collecting the unlawful fees, or levying against C&H's real property for the Sewer Fees, assessing
Z m N 18 delinquent, current or prospective Sewer Fees on C&H's tax bill, or in any way enforcing
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U o 19 Ordinance 06-1, Ordinance 07-2 and Resolution 06/07-22.
m 20 8. For a declaration that C&H does not owe any additional amounts for the period
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U- 21 2005-2006 or 2006-2007, and that CCSD may not demand or seek to collect any additional
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23 9. For damages according to proof at trial;
24 10. For all costs of suit incurred herein;
25
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13183.001.8495180 21 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 11. For all attorneys' fees incurred herein; and
2 12. For such other and further relief as the Court may deem just and proper.
3 DATED: May , 2008 COBLENTZ, PATCH, DUF & BA S LLP
. 4
5 By:
JOM T. BULLO
6 Attorneys for Plaintiff
C&H SUGAR COMPANY, INC.
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13183.001.8495 1 Rv 1 22 Case No.N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
I VERIFICATION
2 I,Jim Koeppen, am Plant Controller for C&H Sugar Company,Inc., Petitioner/Plaintiff in
3 this action. I have read the foregoing FIRST AMENDED REVERSED VALIDATION ACTION,
4 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT and know its contents.
5 The matters stated in the foregoing document are true of my own knowledge except as to
6 those matters which are stated on information and belief, and as to those matters I believe them to
7 be true.
0 8 I declare under penalty of perjury under the laws of the State of California that the
v 9 foregoing is true and correct. Executed on May 19 ,2008 at Crockett, California.
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M U m 12 Print Name of Signatory Sign e
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13183.001.849518v1 ] Case No,N07-1747
FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of San Francisco, State of California. My business address is One Ferry
4 Building, Suite 200, San Francisco, California 94111-4213.
5 On May 30, 2008, I served true copies of the following document(s) described as
6 FIRST AMENDED REVERSE VALIDATION ACTION,VERIFIED PETITION FOR
WRIT OF MANDATE,AND COMPLAINT FOR: (1) Violation of Article XIII of the
7 California Constitution by Imposition of an Impermissible Special Tax; (2) Violation of
a Section 66013 & 66016 of the California Government Code; (3) Violation of Section 5470,et
It 8 seq., of the California Health and Safety Code; (4) Violation of the Due Process Clause of
the United States Constitution; (5) Violation of the Due Process Clause of the California
0 9 Constitution; (6) Violation of the Contracts Clause of the United States Constitution;
(7) Violation of the Contracts Clause of the California Constitution; (8) Declaratory Relief;
IL < 10 (9) Breach of Contract; (10) Open Book Account; and (11) Account Stated
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U) < co on the interested parties in this action as follows:
mU 12
o m Kent Alm, Esq.
N 13 Meyers Nave
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U.a a x 14 Oakland, CA 94607
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U N 0 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons
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o m 16 at the addresses listed in the Service List and placed the envelope for collection and mailing,
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N ': following our ordinary business practices. 1 am readily familiar with Coblentz, Patch,Duffy&
N � m 17 Bass LLP's practice for collecting and processing correspondence for mailing. On the same day
z N ? that the correspondence is placed for collection and mailing,it is deposited in the ordinary course
.W, N 18 of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
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0 0 19 I declare under penalty of perjury under the laws of the State of California that the
U foregoing is true and correct.
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a Executed on May 30, 2008, at San Francisco, California.
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23 Cindy Fong
24
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13183.001.882278v1 Case No.N07-1747
PROOF OF SERVICE OF FIRST AMENDED REVERSE VALIDATION ACTION,PETITION FOR WRIT OF MANDATE AND
COMPLAINT