Author: Editor

Franchise Fee Is A Tax

MOORE’S MUSINGS
A monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

FRANCHISE FEE IS A TAX
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
On February 26, 2015, the California Court of Appeal for the Second Appellate District, entered into the murky fray of Proposition 218 interpretation and attempted to clarify when a franchise fee is a tax requiring pre-approval by the electorate. Though the case arose in the context of an electrical service utility, the Court’s analysis might well apply to other municipal franchises, such as solid waste.

In Jacks v. City of Santa Barbara, the City, with PUC approval, imposed a 1% (of gross receipts) surcharge on the utility, Southern California Edison, to be collected by SCE from the ratepayers, making SCE a pass-through of the surcharge. A taxpayer group challenged this surcharge under the CA Constitution provision known as Proposition 218. Proposition 218, in short, is an outgrowth of Proposition 13’s limitation on government taxation power and requires voter approval before any new tax can be imposed.

As the Court in Jacks noted, Proposition 218 prohibits local governments from imposing “taxes” without voter approval but does not define what “taxes” means. According to the California Supreme Court in Sinclair Paint v. State Board of Equalization, “The term “has no fixed meaning, and . . . the distinction between taxes and fees is frequently ‘blurred,’ taking on different meanings in different contexts… In general, taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or privilege granted.”
Jacks also noted that the state high court, in contrast, has defined “franchise fee” since 1922 as a “charge which the holder of the franchise undertakes to pay as part of the consideration for the privilege of using the avenues and highways occupied by the public utility.”

Jacks took a very literal reading of this 1922 definition to decide that Santa Barbara’s surcharge was a tax and not a franchise fee because, the …”primary purpose is for the City to raise revenue from electricity users for general spending purposes rather than for SCE to obtain the right of way to provide electricity. This constitutes a tax under Proposition 218 and is subject to approval by the electorate.

In reaching this conclusion, Jacks again echoed the state high court’s 1997 analysis in Sinclair Paint, that if it quacks like a duck, it’s a duck: “if revenue is the primary purpose, and [compensation for the franchise] is merely incidental, the imposition is a tax, but if [compensation for the franchise] is the primary purpose, the mere fact that revenue is also obtained does not make the imposition a tax.”

The Sinclair Paint Court also stated that the definition of “taxes”, ” ‘does not embrace fees charged in connection with regulatory activities which fees do not exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and which are not levied for unrelated revenue purposes.’

In the field of solid waste franchises, the Court of Appeal’s 1993 determination in City of Dublin v. County of Alameda, that Alameda County Measure D did not impose a tax, but was an enactment of regulatory power, has long held sway.

But the 1993 Measure D case was decided before Sinclair Paint and before the constitutional amendment of Proposition 218. In light of Jacks, local governments, franchised haulers, and ratepayers, may want to take another look at the applicability of Proposition 218 to solid waste franchise fees.

RU Speakers 2015

Recycling Update Program 2015NCRA booth2

Speakers List for 20th Annual Recycling Update

NCRA’s Recycling Update happened on March 17, 2015. Speaker topics included – The Latest From The EPA, 2014 Legislative Year In Review, Brewing A Zero Waste Program, Sparking The U.S. Food Waste Revolution, Update On British Columbia’s EPR Programs and much, much more!

Read More “RU Speakers 2015”

Annual Members Meeting Agenda, 1/15/15

NORTHERN CALIFORNIA RECYCLING ASSOCIATION

Annual Members Meeting, 1/15/15
Location: StopWaste Offices, 1537 Webster St, Oakland, CA
Presiding Officer: NCRA President Laura McKaughan

5:30pm Food and Group Sharing
6:00pm Call to Order & Welcome to Members (Connolley & Shapira)
6:02pm Icebreaker
6:30pm Election Committee shares results of recent board election (Marra, Van Deventer)
6:40pm State of NCRA Address (McKaughan)
7:00pm Group break-outs on NCRA areas of priority for 2015
7:30pm Groups are brought back together to do a group share

8:15pm Board meeting commences
8:15 Approval of November’s Meeting Minutes & Approval of Agenda (McKaughan)
8:15 Treasurer’s Report
8:20pm Actions Requiring Discussion/Policy Decisions:
Request to submit EAB proposal for 3 NCRA members (Robinson)
Dates/Location for retreat
Report out by committee on ZWW/RU: Tours, Food, Volunteers, Speakers
ZWYC MOU (Connolly)
Review of proposals submitted by Herrera and Leftwich (McKaughan)
8:45pm Report by Committee if necessary: (2-3 mins each)
Zero Waste Advocacy (Boone, Chair)
Newsletter (Sinnott, Editor)
Membership (Shapira, Co-Chair)
Activities (Figueiredo, Chair)
9:00pm Adjournment

Board Of Directors Candidate Statements, 2015

Prepared by the Nominations Committee, Mary Lou Van Deventer and Lori Marra

CANDIDATES 2015
Arthur Boone, Douglas Brooms, Steven Chiv, Jordan Figueiredo, Laura McKaughan, Jessica Robinson and Tomer Shapira

STATEMENTS
Arthur Boone – I became a professional recycler in 1983 and have served on the NCRA Board for most of those 32 years (no term limits here). I have served in all Board positions but am best known as founder and for 17 years director of NCRA’s well-known Recycling Update. I still teach NCRA’s Introduction to Recycling class twice a year for newcomers, and chair our Zero Waste Advocacy Committee. Your vote will assure my continued Board membership. Thank you. Seventy-seven in March but going strong; a little crusty at times but usually for a good cause.

Douglas Brooms – I’ve served a half term and would be honored to continue in a full term. I enjoy helping with and participating in NCRA events. I continue to video tape each Introduction To Recycling training and the Zero Waste Youth Convergence. I’ve represented NCRA at several green expo-type events.

I’ll continue with residential recycling advocacy. I’ve assisted with and written letters to the City of Oakland and Council to advocate for no-cost green carts for multifamily dwellings. I’m on the committee to help promote organics collections at multifamily dwellings.

I’m on the Zero Waste Advocacy Committee (ZWAC). I’ll do my part regarding NCRA’s watchdog role regarding special interests opposing diversion. I’ll give thoughtful deliberation on issues requiring Board attention. I’ll support synergism among organizations that share our common interests.

I’ve proposed revisions to the ZWAC Webpage and wish to keep the content fresh. I’d further like to propose ideas towards increasing the appeal and usefulness of NCRA’s website by adding best practice resources and tools.

I helped increase awareness about the annual America Recycles Day (ARD), including outreach letters to local recycling businesses. I’ll advocate earlier and greater NCRA support and promotion of ARD.

I have sustaining commitments to environmental stewardship causes. However waste reduction and recycling advocacy are my stronger passions, making NCRA my best place. I would appreciate your vote.

Steven Chiv –  I’d like to submit my candidacy for a NCRA board member position and respectfully request your vote. NCRA is my favorite recycling and Zero Waste advocacy organization. I’ve been involved with NCRA for the last 6 years and I believe in the vision and good work that drives our Northern California Recycling Association.

I work with the San Francisco Department of the Environment in Commercial Zero Waste and have extensive experience working with San Francisco’s residential sector. I’m results driven and focused on growing environmental awareness. I care deeply about our beautiful planet and strive to increase individual responsibility to drive environmental action.

As a NCRA board member, I want to continue NCRA’s push to stay on the radical cutting edge of Zero Waste. I want to keep raising NCRA exposure to the new generation of recyclers and share the vision and history of our Zero Waste movement. I want to serve to strengthen NCRA’s Bay Area wide bond with my community in San Francisco. I fully believe that collectively we can move towards a healthy happy community and more sustainable planet.

I would be both honored and excited to serve on the NCRA Board.

Jordan Figueiredo – As Solid Waste Specialist for Castro Valley Sanitary District (CVSan), I manage a successful commercial recycling and organics programs and various graphic projects such as our quarterly Pipeline newsletter and annual Calendar/Annual Report. In addition, I work with Castro Valley schools to install and improve recycling and food scrap recycling (composting) programs. I also give informational and motivational presentations to students and the greater Castro Valley community to reduce waste even more. Lastly, I work on various other exciting projects such as event greening, publicity, the CVSan website, grant acquisitions, and whatever else it takes to push the bar even higher for CVSan and Castro Valley with our Zero Waste Strategic Plan as our guide. It has been a great honor to serve on the NCRA Board for the past four years, as Secretary, Treasurer, NCRA Jobs Co-Chair and RU Co-Chair in the past, and now as Zero Food Waste Forum Chair. I look forward to continue supporting NCRA’s path as a cutting-edge Zero Waste association.

Please vote for me to continue my service to NCRA, and most importantly, my service to you, NCRA’s loyal members.

Laura McKaughan – As a professional working in the Zero Waste industry for the past 10 years, I feel I am well qualified to serve as a Board member for the Northern California Recycling Association. Currently I serve as Principal for Envirolutions Consulting, a company founded in 2014 to promote Zero Waste and sustainability for private industry, government and non-profits in Northern California. Prior to this, I worked for nearly 8 years as the Recycling Manager and then Associate Director of Green Programs for the San Francisco Conservation Corps. In this role, I oversaw the Green Programs Department, including commercial collection of recyclables, Zero Waste services for events, managing grants and contracts and facilitating trainings on recycling and Zero Waste. I have a BA in Psychology from the University of Arizona and an MBA in Environmental Entrepreneurship from Dominican University.

I have served on the NCRA Board since 2011 and as NCRA’s president since 2012. I have enjoyed the opportunity to contribute to the Zero Waste movement from this position and view NCRA as a valuable asset whose influence will only continue to grow. There is much left to accomplish – I ask you to please vote for me for 2015 NCRA Board.

Jessica Jane Robinson – I first want to thank all NCRA members for granting me opportunity to serve on the NCRA Board. These past two years have been full of learning and growing for me as a Board Member. I have served as the NCRA Treasurer which I enjoy. I have learned about budgeting, reading, drafting and delivering financial reports. I would like to continue to be your Treasurer and work on perfecting what I learned to better serve NCRA.

Two years ago I promised to help get NCRA’s name more exposure and bring my creative and innovative talents on Board. I have fulfilled my promise with the two-year Annual Ethical Fashion Show, where I helped teens produce their own fashion show based on up-cycling textiles and thrift shopping. I brought on celebrity judges to support the Ethical Fashion Show both years. I have also produced “Resilience Climate Change Expedition” (during Zero Waste week – see on YouTube) that has gotten attention from celebrities from Lieutenant Governor Gavin Newsom all the way to Al Gore’s Climate Reality Project. NCRA is now one of the producers.

With two more years I hope to do much more for NCRA, put my skills to work and help the Zero Waste movement in order to solve climate change.

Tomer Shapira – It has been an honor to serve on the Board for the past two years, and I would like to ask for your vote once more, so that I can serve another term with NCRA.

Since joining NCRA as a member four years ago, I have sought for ways to get further involved in advocating and promoting Zero Waste in Northern California, and I remain as deeply committed today as I ever have. As a director, I would like to continue to work to organize around Zero Waste in the community, and support local projects to further the organization’s reach while engaging the Bay Area’s diverse youth population.

In the past year, I have served as co-chair of the Board’s membership committee, represented NCRA at community events like the CRRA conference and Feed the 5000 in Oakland, and have worked as volunteer coordinator for NCRA’s annual Recycling Update event, a role I am planning to help with again this year. I look forward to the opportunity to continue to serve the Zero Waste community on the Board of NCRA. Thank you.

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