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Ord 2004-44ORDINANCE NO. 44 AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE COSTA MESA SANITARY DISTRICT AMENDING THE DISTRICT'S OPERATIONS CODE WITH RESPECT TO SEWER AND TRASH CHARGE EXEMPTIONS AND REFUNDS WHEREAS, the Board of Directors has established a sewer and trash refund policy which recognizes that the District cannot constitutionally make a gift of public funds and provide refunds for sewer and trash charges that are beyond the statute of limitations; and WHEREAS, the Court of Appeals has now rendered a new decision, Utility Audit Company v. City ofL Los Anger (2003) 5 Cal.Rptr.3d 520 that has established that the Tort Claims Act applies to such refunds; and WHEREAS, the Tort Claims Act generally requires that claims be presented within one year of the accrual of the cause of action; and WHEREAS, the Board does also want to make title changes to correctly reflect subject matter; NOW, THEREFORE, the Board of Directors of the Costa Mesa Sanitary District does hereby ORDAIN as follows: Section 1. That the title to Chapter 16.01 of the District's Operations Code shall be amended to read: "Chapter 16.01 - Sewer and Trash Charge Exemptions and Reductions" Section 2. That the title to Chapter 16.02 of the District's Operations Code shall be amended to read: "Chapter 16.02 - Sewer and Trash Refunds" Section 3. That Section 16.02.040 of the District's Operations Code is amended to read: "Section 16.02.040. Refund Policy. In light of the above, the Board does hereby establish the following as its refund policy for sewer and trash assessments: (a) For all claims for refunds for sewer or trash service for which a special rule (set forth below) does not apply, refund procedures and time limitations will be governed by the Tort Claims Act (Government Code Section 900 et seq.) including, but not limited to, the requirements that the claimant present a written request for a refund from the Board within one year of the accrual of the cause of action. Refunds will be allowed if the claimant's request satisfies the procedures of the Tort Claims Act and if the claimant establishes that his or her claim is meritorious. (b) For amounts "paid under protest ", refunds may be allowed for up to four years provided that the procedures of the Health and Safety Code and Revenue and taxation Code were followed. (See Health and Safety Code Section 5472; Revenue and Taxation Code Sections 5097 and 5140 et seq.) (c) Persons who have paid sewer service fees but who have received no service and have not been connected to the District's system shall be eligible for a refund depending on when the fees were collected as follows: (1) If the fees were collected before January 1, 1992, there is no statu+p of limitations and the claimant may submit a claim for such amount that he can prove that he paid and for which he received no service. (2) If the fees were paid after January 1, 1992, a claim must have been filed within 180 days of the date of the payment. (3) Subsections (a) and (b) above only apply to fees collected and do not apply to sewer assessments. (See Government Code Section 53082.)" Section 4. Should any part, clause or section of this Ordinance be declared by any Court of competent jurisdiction to be invalid, the remaining provisions of this Ordinance shall nevertheless be and remain in full force and effect and the Board of Directors of the Costa Mesa Sanitary District of Orange County, California, hereby declares that each and every section, clause, provision or part of this Ordinance would have been adopted and made a part of this Ordinance without the adoption of any portion thereof and that the invalidity of any part or provision hereof shall not in any way affect the validity or enforcement of the remaining provisions of this Ordinance that may stand on their own. Section 5. Pursuant to Health and Safety Code Sections 6490 and 6491.3, the Clerk shall cause this ordinance or a summary thereof to be published in a newspaper of general circulation printed and published in the District according to law and it shall take effect upon the expiration of one week after publication. PASSED and ADOPTED this day of 2004. SOcretary STATE OF CALIFORNIA) COUNTY OF ORANGE ) SS CITY OF COSTA MESA ) I, JOAN REVAK, Clerk of the Costa Mesa Sanitary District, hereby certify that the above and foregoing Ordinance No. 44, was duly and regularly passed and adopted by said Board of Directors at a regular meeting thereof, held on the Stn day of January 2004, by the following vote: AYES: Arlene Schafer, Greg Woodside, James Ferryman, Art Perry, Dan Worthington NOES: ABSENT: ABSTAIN: IN WITNESS WHEREOF, I have hereunto set py hand and affixed the seal of the Costa Mesa Sanitary District, this day of 2004. Clerk of the .6sta -Me'sa Sanitary District