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It’s that time of year when many are thinking about how much money they pay to the government.
For Livermore resident Alan Heckman and Alameda County Taxpayers’ Association, Inc., focusing on that subject goes beyond just income and property tax seasons. It’s a year-round obsession.
In recent months, they have filed two lawsuits against the city of Livermore attempting to bring down what they allege are unfair taxes and fees ultimately charged to city residents. The first case challenges the water and sewer rate structures while the newer suit targets garbage rates.
“Our goal is for the city to stop imposing these taxes and fees on which the citizens of Livermore never voted,” Heckman told me over the weekend about the garbage fee lawsuit. “We also want a refund of these taxes and fees as far as the law will allow – and not just for myself, but for everyone similarly affected. This is a class action.”
And for the utility case, Heckman said by email, “We want the City of Livermore to stop charging for their extra made-up costs added into our property tax bills, and to return all money that was siphoned into the general fund (which may be spent on who knows what) back to the wastewater fund (to be spent only on the sewer).”
The city is well on its way to mounting its defense, utilizing the same outside law firm in both cases. Livermore city attorney Jason Alcala told me Monday morning that “the city disagrees with the petitioner’s allegations” without getting into more specifics at this stage.
The city’s initial responses to each petition, written separately by contracted attorney Benjamin P. Fay of Oakland-based Jarvis Fay LLP, are mainly page after page of either acknowledging certain basic facts for the administrative record or denying allegations from each paragraph of original lawsuits.
The documents also lay the groundwork for broad arguments why the city contends each case from Heckman and the association falls flat legally and should be denied in full by the court.
Both lawsuits remain in the early stages before Judge Michael Markman in Alameda County Superior Court Department 14. Neither has a trial date yet, Alcala noted.
The first lawsuit, filed last October on behalf of Heckman and the association by attorney Vincent D. Slavens of San Diego-based law firm Benink & Slavens, LLP, claims the city’s water, sewer and stormwater fees and charges violate state law and should be stopped by the court.
That includes rescinding the “excessive” sewer service fees (enacted in May 2020 with increases between July 2020 through June 2025) and “excessive” water service fees (approved in April 2022 with increases between January 2023 and December 2027).
One key angle in the lawsuit is the assertion that the city, which provides water and sewer service via enterprise funds, charges its utility operations rental fees.
“The City then transfers the rental revenue from the utilities’ enterprise funds to the City’s general fund, to be spent in the City’s discretion, including on general government services. The rental charge has increased substantially over the years to more than $2,500,000 for all utilities,” Slavens wrote.
The petition argues such a charge “is not a valid cost of service the City may recover from ratepayers” and thus asks the court to require all such general fund monies be transferred back to the enterprise funds.
In the city’s retort on Dec. 18, Fay stated, “The City alleges that Petitioners are barred from recovering anything from the City under the Petition and each cause of action therein.”
The city’s arguments include failure to state a cause of action, the statute of limitations, petitioners didn’t pay the challenged service fees under protest and the detrimental impact of the payback demand for three years of funds — “The money transferred to the general fund has already been budgeted and spent such that any ‘return’ of this money will require the City to divert funding from essential lawful government activities.”
The second lawsuit, submitted on Jan. 2, targets “agreement fees and gratuitous service charges” in the garbage hauling contract between the city and Livermore Sanitation, Inc. (aka Waste Collections), which Heckman and the association argue are effectively taxes on residents that were never directly approved by voters.
Livermore Sanitation pays to the city a contract fee (equal to 11% of its gross rate revenues), street-sweeping fee, vehicle impact fee and neighborhood preservation fee, collectively dubbed “agreement fees”. By the garbage company passing through all of these fees to customers, “this results in the city imposing taxes on all Livermore Sanitation customers,” the lawsuit claims.
The petitioners ask the court to toss out these charges unless and until they were approved by city voters, as well as to order a refund of such unlawful taxes and fees to all Livermore garbage customers as a class.
Fay’s response on behalf of the city, filed just last week, contends the petitioners lack standing to pursue the case, are prohibited by law from seeking a class refund, and failed to state a cause of action, exhaust administrative remedies pursuit to the Livermore Municipal Code, act within the statute of limitations and pay their garbage fees under protest.
The city asks Judge Markman to “enter judgment for the City, denying the relief requested in the Petition and ordering that Petitioners take nothing in this action; That the Court issue an award of costs to the City; That the City be granted such other relief that the Court may deem just and proper,” Fay wrote in the Feb. 28 filing.
Editor’s note: Jeremy Walsh is the editorial director for the Embarcadero Media Foundation’s East Bay Division. His “What a Week” column is a recurring feature in the Pleasanton Weekly, Livermore Vine and DanvilleSanRamon.com.
