Review of Events Pursuant to Establishing Interim Implementation Procedures
Borrego Water District’s Policy on New Development – Groundwater Preservation
(Policy 2005 – 6 – 1)
The following is a review of events involved in the
process of determining when the Borrego Water District’s in-lieu fee for
Groundwater Preservation must be paid; arguments that the process was flawed
and caused harm to certain applicants for water service from the BWD; and
demands for indemnity of aggrieved parties.
Some sixty people (hereafter “applicants”) apparently
applied and paid for water meters in the days just prior to the Board
meeting on Sept. 28, at which an interim implementation procedure for the
BWD’s Groundwater Preservation Policy,
approved by the Board at their regular meeting in June 2005, was to be
Acting on the advice of counsel, the BWD’s general manager, staff, and
the BWD Board amended the motion submitted to them for approval by the
Groundwater Preservation ad hoc committee
to make the in-lieu fee for Groundwater Preservation due and payable at the
time of “issuance of a building permit,” rather than “At the time of
application for a water meter” as specified in the motion put forward by the
Groundwater Preservation ad hoc committee, and unanimously approved
the motion as amended.
The Borrego Sun noted that “The selection of a
later point in the development process as the trigger for the payment of the
mitigation fee was a surprise at the Sept. 28 meeting.”
A number of those who had applied for water meters in the days just prior to
the Board meeting on Sept. 28 appeared at the Groundwater Preservation ad
hoc committee meeting on 18 October to protest that they had been
misinformed about the policy, had suffered harm thereby, and were entitled
to indemnity. Their arguments and responses thereto are presented
Arguments and Counter-Arguments
- Applicants argue that they were misled by an
article in the Borrego Sun of 09/22/05.
- In pertinent part that article states that
“Developers or individuals building single family homes within the
boundaries of the Borrego Water District will have the option of
paying a $4,168 in-lieu fee . . . if BWD directors approve a
recommendation from an ad hoc committee at next Wednesday’s
(Sept. 28) board meeting.” This language gives no absolute
assurances and makes clear the contingency involved; i.e., it is a
hypothetical statement of the form “If X then Y.” As it
happened, the board did not approve the ad hoc committee’s
recommendation per se, but changed it; so the antecedent is
false and there is no justification for expecting the consequent.
- At least one applicant alleges that she was misled
by an outdated version of the Policy on New Development (2004-1-1) which
she obtained from a display rack in the BWD meeting room.
- The document in question was a working draft
of the Policy on New Development – Groundwater Preservation,
No.2005-6-1. The “Adopted” block was blank. While the
document was not identified as a draft, and, in any case, should not
have been left in the display rack after a superseding document was
published and approved by the board, the subject iteration of
the policy, nonetheless, makes no mention whatsoever of an in-lieu
fee, much less a date certain for its implementation. It is,
therefore, impossible to understand how it could have been
misleading in respect to the latter.
- Applicants allege that they received telephone
calls advising them that if they applied for water meters before Sept.
28 they could avoid paying the mitigation fees.
- It is not clear who made these calls; but, in
any case, unless they came from staff at the BWD or someone
specifically authorized to speak for the BWD, the BWD cannot be held
responsible for such third party representations which amount to no
more than rumor and speculation. BWD General Manager Russ Fogarty
reportedly opined that “local real estate agents who saw the
proposed language. . . advised their clients to file for meters
before the policy was formalized.”
If that is true, and if these agents received no explicit, formal
assurances from or were not authorized to speak for the BWD, then
the BWD cannot be held responsible for representations made by them.
Moreover, these real estate agents, if any, likely breached their
professional responsibility to their clients as well by acting
precipitously and without due diligence.
- Applicants claim that they called or came to the
BWD office prior to Sept. 28, and were told by BWD staff members, thus
far unidentified, “that they could avoid the mitigation fee if they
already paid for their water meters prior to the board’s approval of the
- BWD general manager Russ Fogarty, presumably
relying on representations made by his staff, “. . . indicated his
staff was telling people that the board had not approved the
mitigation process before the Sept. 28 meeting, so its specifics
Inasmuch as all of the communications alluded to so far regarding
such assurances were apparently oral, this amounts to the classic
“he said/she said” situation. Absent documentary evidence in
the form of e-mails, faxes, etc., it will be difficult, and probably
impossible, to reconstruct the exact nature and content of these
interactions. If applicants wish to pursue this argument, they
must, at a minimum, identify individual BWD employees who they
believe where giving unwarranted and false assurances so that the
matter may be investigated further.
- Applicants demand that, because they were confused
about whether the mitigation fee would be charged when applying for a
water meter or when a building permit is issued, they be granted a
waiver of the mitigation fee.
- There is no indication or allegation that
there was any intent to deceive applicants on the part of BWD or its
employees, or that the latter in any way acted in bad faith.
The remedy demanded is, therefore, excessive and disproportionate to
the harm, if any, incurred by applicants. It would unduly
punish all rate payers who would have to make up a minimum of
$250,000 lost to the BWD’s Groundwater Management fund. More
important still, it would in turn damage and further delay already
long overdue efforts to protect Borrego’s sole-source aquifer.
- There does not appear to be language in any of the
printed documents reviewed above that would lead a reasonable person to
believe that she/he could act with confidence that they could avoid the
mitigation fee if they already paid for their water meters prior to the
board’s approval of the policy.
- The argument that applicants received telephone
calls from persons, largely unidentified, advising them that they could
avoid the mitigation fee if they already paid for their water meters
prior to the board’s approval of the policy, is not compelling. If
this line of argument is to have any validity, then, at a minimum, the
person(s) making those calls must first be identified and queried
regarding the source and validity of their information.
- The claim that applicants contacted the BWD office
and were told by unidentified BWD staff members that they could avoid
the mitigation fee if they already paid for their water meters prior to
the board’s approval of the policy is contradicted by the BWD general
manager and, by inference, BWD staff as well. There is, at
this point, seemingly no independent evidence to appeal to in deciding
what actually happened.
- Applicant’s demand that they be granted a waiver
of the mitigation fee is excessive and disproportionate to the harm, if
any, incurred by applicants. Absent any intent to deceive or bad
faith on the part of BWD or its employees; it would unduly punish all
rate payers; and, most important, damage and further delay already long
overdue efforts to protect Borrego’s sole-source aquifer.
- The BWD has offered to refund payments for water
meters made by those who believe that they were somehow misled and now,
in addition to money they already spent to purchase a meter or meters,
face additional, continuing expenses without benefit. Given that
the situation appears to be a result of faulty communication and hasty
action based on incomplete information and understanding, that seems a
reasonable and prudent course of action under the circumstances.
A Kluge for the Glitch
At its meeting on Wed., 26 October 2005, the BWD Board
of Directors decided to go with the remedy recommended immediately above.
All of this could have been avoided if the Board would routinely think
through the repercussions of its actions and were more careful and precise
in its use of language. It could also be helped if the District office
improved its document handling, management, tracking, and retention
procedures. The General Manager must also take steps to ensure that
all public service staff understand policies that they are responsible for
interpreting to the public. Above all, staff should be given to
understand that, if they do not know the answer to a question, they must say
that and refer the question to someone in the organization who does know or
who has the authority to decide, and not speculate about what the answer
might be. For another example of a similar situation waiting to
happen, see Groundwater Mitigation Policy Amended.