COUNTY OF ALAMEDA CASE NO.

Transcription

1 DEBORAH KURTIN AND BERT KURTIN Sea View Avenue Piedmont, California Telephone:..0 In Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA DEBORAH KURTIN and BERT KUR- TIN, v. Plaintiffs, CITY OF PIEDMONT, a California municipal corporation; HAMPTON-SEA VIEW AVENUES UNDERGROUND AS- SESSMENT DISTRICT, a special district; DOES I through X, inclusive, Defendants. CASE NO. TO INVALI- DATE APPROVAL OF ASSESSMENT DISTRICT, ENGINEER'S REPORT AND AWARD OF ATTORNEYS' FEES 1 Plaintiffs Deborah Kurtin and Bert Kurtin, for complaint against defendants City of Piedmont ("City"), Hampton-Sea View Avenues Underground Assessment District ("HSV District") and Does I through X, allege as follows: INTRODUCTION. 1. This action is brought in accordance with California Streets and Highways Code Section 0 and Code of Civil Procedure Section and challenges defendant City's approval of the HSV District which imposes property assessment obligations on certain property owners in Piedmont, California, including plaintiffs. The action involves protecting plaintiffs' voting rights and insuring the integrity of the voting process utilized to impose real property assessments on property owners as guaranteed

2 1 under the California Constitution. The causes of action contest the use of public, not secret, voting, weighting of ballots, the Engineer's Report, and the City Council's findings based upon such Report, including, inter alia, the determination of general and specific benefits, and related actions taken by defendants City and HSV District in connection with approval of the HSV District. The causes of action involve the application of constitutional rights as recently articulated by the California Supreme Court and First District Court of Appeals. This complaint alleges, inter alia, that the public voting violates the secret voting requirement of Article II, Section of the California Constitution; that the weighting of ballots based upon only a portion of a property owner's financial obligation violates Article D, Section (e) of the California Constitution. Further, the City Council's findings with its approval of the HSV District are unsupported because the Engineer's Report upon which the findings are based contains factually incorrect information and ignores material information and the findings and Report are otherwise unsupported. In toto, the Engineer's Report violates the California Constitution. PARTIES.. Plaintiffs Bert Kurtin and Deborah Kurtin are property owners and residents of the City of Piedmont, whose property and where they reside is within the HSV District. The City's approval of the HSV District challenged by this action imposes upon plaintiffs substantial monetary obligations and a lien securing payment of such obligations.. Defendant City is a municipal corporation, organized and existing under the laws of the State of California, and is responsible for directing and implementing the entire process, concerning the HSV District, including, inter alia, formation, bidding, engineering, assessments and voting and approval/disapproval, including but not limited to the actions set forth in this complaint.. Defendant HSV District is a special assessment district formed pursuant to applicable provisions of California Government Code Sections, including inter alia, Section, and applicable Streets and Highways Code Sections and the Califor /1.DOC --

3 1 nia Constitution.. Plaintiffs are ignorant of the true names and capacities of defendants named herein as Does I through X, inclusive, and plaintiffs therefore sue these defendants by such fictitious names. Plaintiffs will amend the complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and on that ground allege that each of such fictitiously named defendants is an individual, private or public corporation, governmental entity or other legal entity, and is responsible in some manner for the occurrences herein alleged and that plaintiffs' damages herein alleged were caused by said defendants. At all relevant times each of the Doe defendants acted as the agent, representative or on behalf of the named defendants and of each other. FACTUAL BACKGROUND. On or about January, 0, the City Council of Piedmont, California ("Council"), at a regular meeting, heard public testimony from residents on their views on the City's Proposed Policy on forming Utility Undergrounding Districts. Questions were posed by attendees and the Council directed the City's Staff to prepare a policy "package" that could be used as a guideline by proponents.. The City's Staff prepared the requested package and submitted it to the Council members prior to the next scheduled Council meeting. After requesting and obtaining further amendments, on February, 0, the Council adopted "The Underground Utility Formation Policy and Attachments" ("Policy"), effective immediately.. Pursuant to that Policy, the City, in connection with formation of the HSV District, made available for interested persons the package describing the process for formation of an underground utility district. In connection with defendant HSV District, interested residents were provided, inter alia, the Official Petition to the Piedmont City Council Supporting Formation of a Hampton-Sea View & Vicinity Undergrounding Assessment District and Map of the proposed HSV District to submit to the City Clerk in connection with the formation of the HSV District ("Petition"). In the Petition, the /1.DOC --

4 1 Council represented both that: (1) signatures of "persons representing a minimum of 0%" of homeowners in the proposed District would be required to form a proposed District in order for the legal proceedings to get started (Paragraph 1) ; and () for final approval of the District, "0%-0% of the ballots cast must be in favor of the project, if it is to move forward at this point," i.e., final approval (Paragraph ). Plaintiffs relied on this representation and requirement set forth by the Council in casting their ballot. Plaintiffs are informed and believe and on that ground allege that homeowners in the HSV District similarly relied upon the Council's requirement of the 0%-0% vote in favor of the undergrounding for the Council to approve the HSV District. Consistent with this requirement, the Council in its recent decision regarding the Central Piedmont District undergrounding refused final approval where the ballots in favor were only %. Further, in connection with disapproval of that district, council members repeated that they were looking for a favorable vote of around 0% to vote for approval.. From time to time, the Council amended the Policy. These amendments included replacing the Director of Public Works and designating the City Clerk as the person responsible for preparing and disseminating information to property owners and advising on the procedures, requirements and financing concerning the HSV District. Another amendment authorized the use of so-called Rule A Funds from the State of California to pay for engineering costs for PG&E up to $0,000 for a Rule B district project that uses private funds. If a district is not ultimately approved, the City has no proper means to recover such Rule A funds.. During a period of at least nine () months ending on or about August, 0, property owners in the proposed HSV District submitted petitions to the City Clerk requesting the initial formation of the HSV District.. Pursuant to the City's policies and procedures, a proposed boundary map was established and funds to cover the cost of preliminary engineering and legal expenses were raised from residents in addition to the $0,000 provided by the City through the use of Rule A funds /1.DOC --

5 1. On August, 0, the Council adopted the following resolutions: a. Resolution -0 accepted the petition from the Hampton- Sea View Steering Committee members for "implementation" of a project for the undergrounding of existing overhead utility facilities. The assessment would be imposed within the HSV District against each parcel of land, including plaintiffs' property. The ballots would be weighted so that each dollar of assessment constituted one vote. b. Resolution -0 also approved the boundary map and directed the City Clerk to file the map with the Alameda County Recorder for placement in the Book of Maps of Assessment and Community Facilities Districts. c. Resolution -0 approved the Preliminary Expense Agreement for the proposed HSV District. d. Resolution -0 approved the Agreement Regarding Engineering Services for the proposed District. The City hired ILS Associates, Inc. ("ILS") as the Engineer of Work. ILS was directed to and did prepare a report as required by Streets and Highways Code Section and supplemented by Government Code Section (hereinafter called "Report"). The Report was filed with the City on March, 0. e. In its Resolution -0, entitled Resolution of Intention, the Council provided that a levy for the assessment would be placed upon parcels in the proposed HSV District, including plaintiffs', for the alleged special benefit to be received by each property from the Undergrounding Project as authorized by the 1 Act, including Sections.1 through. as incorporated into the Municipal Improvement Act of 1 by Section of the Streets and Highways Code. The determination of the special benefits (as distinct from general benefits) was to be made by ILS. The Council also provided for a further lien upon each of the parcels in the HSV District for its cost of administering and collection of the assessments or for the costs of the administration or registration of improvement bonds.. Three members of the five-member Council reside or own property /1.DOC --

6 1 within 00 feet of the proposed HSV District and therefore disqualified themselves from any participation and voting. Plaintiffs are informed and believe and, on that ground, allege that a Council person voluntarily disqualified herself from participating in deliberations and decision-making by the Council and did not vote as a property owner in the HSV District because of her concerns over possible reprisals/recriminations from neighbors or other residents in the HSV District.. At the City Council meeting held later on that date, the Council adopted Resolution -0 which: a. Preliminarily approved the Report without modification for the purpose of all subsequent proceedings held pursuant to the Municipal Improvement Act of 1 Sections.1 through., Article XIIID of the California Constitution and Section of the Government Code. b. Set May, 0 as the date for the public hearing of protests to the proposed public improvements, the proposed levy of assessments, the amounts of individual liens, final balloting and tallying of the ballots, and other matters set forth in the Report. c. Directed the City Clerk to give notice of the May th hearing by mail together with the assessment ballots to the residents of the HSV District and file an affidavit setting forth the time and manner of the mailing.. On May, 0, the Council counted and tallied the votes for the amount assessed against each parcel for general improvements only (the "Joint Trench"). The count of the ballots was incorrect because: a. It utilized the original assessment roll total of $,0,00 and not that amended on April 1, 0 to $,,000. In short, the official tally reflects that assessments from the incorrect original assessment roll were counted rather than the amended assessment roll; and b. The total "financial obligation" to homeowners, including plaintiffs, was not used. The assessment did not include as part of the assessments "the /1.DOC --

7 1 financial obligations" for the connections from the Joint Trench to individual homes ("Individual Service Connection"). This amount was in excess of $00,000 of the total $,,000 assessment, representing % of the total ballots. Accordingly, the balloting violated the requirements of the California Constitution and the Council's Resolution No The Council further resolved that Notices of Assessment should be prepared for each parcel in the HSV District, including that owned by plaintiffs.. On May, 0, based upon improper weighting and assessments, the Council approved the HSV District. The results of the balloting were % in favor of undergrounding and % opposed. In the Petition used to form the HSV District, Council represented to the homeowners that for final approval of the District, "0%-0% of the ballots cast must be in favor of the project, if it is to move forward." Residents of the HSV District relied on this statement by the Council in forming their opinions and casting their ballots to form the HSV District and thereafter.. On May, 0, pursuant to the resolution, the City Clerk recorded the liens in the Alameda County Recorder's Office encumbering plaintiffs' real property for the financial obligations arising out of both the Joint Trench and Individual Service Connections. CAUSES OF ACTION FIRST CAUSE OF ACTION 1. Plaintiffs refer to and by this reference incorporate herein as if set forth in full the allegations of paragraphs 1 through above.. The ballot for the property owners' vote requires that a property owner for each property sign the ballot, thereby disclosing his or her identity. The ballot also reflects the property owner's parcel number and address, which, when disclosed, makes their vote public. The vote of each of the property owners is made public at the time of the counting of the ballots at the public sessions.. The public voting conducted in connection with the support for or /1.DOC --

8 1 opposition to the proposed assessment district violates the California Constitution, Article II, Section, which provides that "voting shall be secret" because, inter alia, the ballot for the vote identifies the parcel number of the property, the homeowner's address, and requires that the property owner sign the ballot. Such information separately and collectively discloses the property owner's identity. When the ballots were counted at the public hearing on May, 0, each property owner's vote was made public.. Plaintiffs are informed and believe and on that ground allege that, due to the public nature of the voting, residents of the HSV District did not vote or voted in favor of approval of the HSV District to avoid recriminations from neighbors as opposed to secretly voting their actual position against approval of the HSV District. SECOND CAUSE OF ACTION. Plaintiffs refer to and by this reference incorporate herein as if set forth in full the allegations of paragraphs 1 through above.. Article D, Section (c) of the California Constitution entitled Procedures and Requirements for All Assessments, provides in relevant part that in tabulating the ballots to approve/disapprove a proposed assessment district that "the ballots shall be weighted according to the proportional financial obligation of the affected property." Further, this Constitutional provision states that in any legal action contesting the validity of any assessment, the burden shall be on the agency to demonstrate that the property or properties in question receive a special benefit over and above the benefits conferred on the public at large and that the amount of any contested assessment is proportionate to, and no greater than, the benefits conferred on the property or properties in question.. The approval of the HSV District was obtained in violation of the California Constitution, Article D, Sections (e) and (f) because the ballots were not weighted according to the proportional financial obligation of the affected property. The weighting of ballots was done based solely on the costs for the public trenching and installation aspect of the conversion and did not include the financial obligation of the /1.DOC --

9 1 homeowners, including plaintiffs, for the Individual Service Connection from the public underground utilities to each respective property. The Individual Service Connection costs were known to the City at the time of the ballot because the City obtained fixed price bids for each resident of the HSV District for the Individual Service Connections at the same time it obtained bids for the Joint Trench. These bids for the Individual Service Connections were disseminated to the homeowners in connection with the balloting.. Plaintiffs are financially obligated to incur the cost for the Individual Service Connection in order to have electrical and other utility services.. Plaintiffs' financial obligation to pay for the Individual Service Connection is secured by the City by the recorded lien for that cost filed on or about May, 0. THIRD CAUSE OF ACTION. Plaintiffs refer to and by this reference incorporate herein as if set forth in full the allegations of paragraphs 1 through above.. The City Council relied upon the Report of ILS, the Engineer of Work, in making its findings upon which its decision to approve the HSV District was based. 0. Those findings are erroneous and mistaken in several respects, including but not limited to their calculation of assessments because the Report was based upon inaccurate information, ignorance of facts that, if known, would have changed the assessment values and allocation of costs to properties, including plaintiffs'. 1. The Council's reliance upon the Report for the findings supporting Resolution -0 was unsupported and invalid because, inter alia, the Report gave an inadequate and understated value for the general benefits arising out of, inter alia, lighting, emergency vehicle responsiveness, other safety effects and aesthetics that affected property values throughout the HSV District and the City. The Report did not separate the general benefits from the special benefits conferred on the properties, including plaintiffs' /1.DOC --

10 1. Accordingly, the Engineer's Report is defective and in violation of the California Constitution. FOURTH CAUSE OF ACTION. Plaintiffs refer to and by this reference incorporate herein as if set forth in full the allegations of paragraphs 1 through above.. Pursuant to Code of Civil Procedure Section., plaintiffs are entitled to attorneys' fees and costs against the City and the HSV District because by this action, if successful, plaintiffs will have secured benefits for a broad class of persons by enforcing a constitutional right and effectuating a strong public policy. WHEREFORE, plaintiffs, and each of them, respectfully request: 1. That the Court set aside and render a nullity the voting for approval/disapproval of the HSV District by the Council and invalidate the approval by the City of the HSV District on May, 0;. That the Court order that a secret vote regarding approval or disapproval of the HSV District by homeowners be held;. That the Court order that the weighting of the ballots based upon the amount of the assessment for each parcel in the HSV District include the entire financial obligation of the property owners, including both the work on the Joint Trench and the Individual Service Connections;. That the Court find that the ISL Engineer's Report does not meet the constitutional requirement in its allocation of general versus special benefits in determining the assessment for property owners and the weighting of the ballots. Accordingly, the voting and approval of the HSV District should be set aside;. Pursuant to Code of Civil Procedure Section., that the Court /// /// /// /// /1.DOC --

11 award attorneys' fees and court costs; and. For such other relief as the Court deems proper. Dated: June 1, 0. DEBORAH KURTIN BERT KURTIN /1.DOC --