This article is a very brief primer about the state law in the context of the specific situation with the recent, secret increase in the fee for the refuse collection service ("Service") approved by the City of Walnut ("City") for the benefit of Valley Vista Services ("VVS").
The pretext for the fee increase is SB-1383, a bill that was passed in 2016. Specifically, the pretext is an alleged change in regulations that became effective on January 1, 2022. The context of the Service is SB-1322 -- Division 30 (Waste Management [40000 - 49654]) of the Public Resources Code added by Stats. 1989, Ch. 1096, Sec. 2 () -- and, more specifically, AB-1826, Chapter 12.9 (Recycling of Organic Waste [42649.8 - 42649.87]) added by Stats. 2014, Ch. 727, Sec. 1.
Based on my current understanding, different jurisdictions in California are all over the map in how they are handling organic waste separation and composting. Some jurisdictions have been doing it for years, others have, apparently, just woken up, and still others are still considering what to do.
BASICS
As you read this, think of the Pareto principle (the 80/20 rule). It's likely that 80% of the solid waste comes from 20% of the solid waste sources. Once you go beyond addressing the 80%, the natural law of diminishing returns kicks in.
In 1989, the California legislature passed a comprehensive integrated waste management bill with several components, one of which was a propaganda (public education) component.
The bill imposed duties on two main groups of slaves -- 1) counties and cities, and 2) certain businesses called generators. Lots of other businesses involving the hauling and ultimate disposal were regulated, but those are all later in the flow of solid waste.
The purpose of the bill was to reduce the amount of trash going to landfills. The reduction could be accomplished in several ways, one of which was diversion, such as recycling. Another was source reduction, such as composting.
In 2014, the legislature passed a bill (AB-1826) specifically directed at organic waste. The bill identified organic waste generators, but included a bevy of exceptions that account for a numerically huge number of solid waste sources not being covered.
In 2016, the legislature passed another bill (SB-1383) that focused on regulations to reduce the amount of methane and other gases emitted by landfills. Note the silliness of this concept. The laws of nature provide that these gases will be emitted, the legislature is just trying to reduce the gases emitted at landfills. Just like shifting the pollution caused by manufacturing and other industries off-shore, the net effect is the same.
Over time, Division 30 has been amended to include all kinds of specific waste, like batteries, electronics, oil, tires, and other hazardous waste. If you own a motor vehicle, you're aware of this through a disposal fee you pay when you get an oil change or buy new tires. By the way, the latter is a perfect example of a service fee -- you bargain for a specific service and you pay the fee.
Specifically, in the entirety of Division 30, you, as an individual in a residential household, are not mentioned anywhere.
FEES VS. TAXES
After the people passed Proposition 13 (1978), local governing bodies devised all kinds of creative ways to avoid the tax limitations imposed. Over the years, there were several attempts that passed, but our courts struck them down. Then, in 1996, the people passed Proposition 218 over the howls and screams of your public servants. The part of Proposition 218 that relates to refuse collection services (the "Service") is Article XIII-D of the California Constitution.
Section 6 of Article XIII-D applies to property related fees or charges. Because Section 6(c), exempts "fees or charges for sewer, water, and refuse collection services" from the voter approval requirement, this is not something that we vote on. Nevertheless, the "agency" (City) is required to follow the procedure specified in Section 6.
As you may remember, in December 2019, you received notice from the Walnut Valley Water District ("WVWD"), an "agency," of its proposal to increase water fees every year for the next five years. The public hearing was held in January 2020. You just got your water bill with the increase for the third year this month (February 2022). The WVWD will be back for more of money in 2024. You can take that to the bank.
Do you remember getting a notice from the City for the fee increase for the Service?
There is another matter to consider as well. Article XIII-C (also part of Proposition 218) contains the following language, as amended by Proposition 26 (2010).
"The local government bears the burden of proving by a preponderance of the evidence that a levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable costs of the governmental activity, and that the manner in which those costs are allocated to a payor bear a fair or reasonable relationship to the payor's burdens on, or benefits received from, the governmental activity."
Basically, it is the City that must prove that the fee increase for the Service is NOT a tax. This requires proof of all elements of the statement above. These elements are further detailed in Section 6(b) of Article XIII-D. Note that Section 6(b), after listing the five required elements, ends with: "In any legal action contesting the validity of a fee or charge, the burden shall be on the agency to demonstrate compliance with this article."
You let the WVWD get away with imposing a tax on you in 2020 (and in previous years) without a vote. Will you let the City continue to get away with it too?
ALLOCATION OF COSTS
Let's say, for argument's sake only, that the "fee" increase is actually legitimate. In other words, that SB-1363 or the regulations increased costs of the Service.
Let's guesstimate that there are 20,000 residential properties in the City. The allocation issue becomes: Does each property impose the same burden on or receive the same benefit from the Service?
Some things that affect a property's burden or benefit may be:
- Size of the property.
- Number of people living on the property.
- Level of consumption. (How much stuff do the people bring to the property, which will later become solid waste?)
- Degree of separation of waste material?
- Degree of reuse or composting?
For example:
Does a widowed senior citizen, living alone, place the same burden on or receive the same benefit from the Service as a house of a dozen adult college students?
Then how is it that every residential property pays the same fee for the Service? Do 20,000 households pay the same amount for water?, electricity?, gas?, or telephone?
The widow has already been subsidizing the student rental property for many years. The fee has been going up every year.
Did you get that? Why are all residential curbside collection customers paying the same fee? How does that comply with the requirement of Proposition 218?
Remember that VVS (owned by David Perez and located in the City of Industry, the poster-child for local corruption) is a for-profit business -- very profitable. Does the increase include its profit as well as its putative cost?
NON-CURBSIDE COLLECTION
Most properties are residential and receive the residential curbside refuse collection service with the familiar three color-coded plastic bins.
Other properties, including publicly-owned properties, have different kinds of services. Some are with VVS. Some, like the school district, use other companies. Many of those properties have been subject to waste separation and diversion rules for years.
The next time you go to a business location, just for fun, check out whether the business is separating its solid waste.
VOLUNTARY SOLID WASTE SEPARATION
Look at the rules that VVS, without any law setting those rules, wants you to follow.
"Wrap food items, like meat and fish, in newspaper and store it in the freezer until collection day."
Are you kidding me? Did you check out what your favorite restaurant does with its "food items."
It's all voluntary. You may believe you're doing a public service. You may believe you're saving the planet. It's still voluntary.
OTHER FACTS YOU MAY NOT KNOW
VVS, for years, has been filming, weighing, and tracking everything you place in the bins for curbside refuse collection.
If you've been unlucky enough to run afoul of one of its rules, you may have been yellow-tagged or even charged a fee (fine?) for the violation.
WHAT TO DO?
As one political campaign advisor likes to say, "You can lead a horse to water, but you can't make him do the backstroke in your swimming pool."
My definition of public corruption is "public officials or public employees, along with private partners whom they enlist, who intentionally or negligently don't follow the laws which they swore an oath to uphold."
Now you know about this one small slice of the public corruption.
What are you going to do?
Most of you, 80% according to the Pareto principle, will do nothing. It's easy to do nothing. You may even think it's safe to do nothing. Just go along with the corruption. If this is you, you are aiding and abetting public corruption and, therefore, you are part of the problem.
If you're one the 20%, you have many options. What are they? It's not rocket science, you can think of some of them without any help.
Of the options you may come up with, the one least likely to have any effect is to complain to the culprits. Remember, they've already demonstrated that they are corrupt.
LOCAL ACTIVISM
Sun Tsu, in "The Art of War," describes many timeless principles. Many are common sense. One of the principles is to not tell your opponent your plans.
In order to not signal what individuals or groups are planning, you need to plan in private. Once any action is taken, it's public. Your opponents know about.
If you want to learn what options are available or you want to suggest options, join our ultra-private Local Activism community.
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