Conforming uniform

So, has everyone had a chance to read through the Borikas complaint yet?  If not, here is a link to the pages of the complaint, it’s not incredibly long, only about seven pages because the remainder are Exhibits which is just the language of the parcel tax and then the election results.  I guess I was expecting some big “a ha” moment of revelation, but in fact there was none. 

I also expected to see a much more fleshed out legal argument considering that the plaintiff is using this claim to seek an injunction against the school district from collecting the tax and asking that the whole parcel tax be thrown out the window, and of course, here’s the icing on the cake, the legal fees for the plaintiff as well.   Although that’s a pretty standard thing to ask for I believe, while you are asking anyway.

None of the parcels owned by the Plaintiff are commercial parcels per se, at least not according to the filing.   One parcel is a single family home and the other two are multi-family residential, but he does run a businesses (or uses one of the addresses) for his business.   It’s in the filing so it’s public record and I’m not going to even get into the topic of how much the property is actually assessed at (meaning how much the owner pays in property taxes), if you are curious you can look it up yourself:

• Parcel 71-234-18 is listed as a Multiple Residential Building of 5 or more units (use code 7700)
• Parcel 69-100-14 is listed as a Single family residential homes used as such (use code 1100)
• Parcel 70-186-2 is listed as Four living units; e.g. fourplex or triplex w/SFR (use code 2400, which is under the larger heading of 2x – Series – Multiple Residential, 2-4 Units and Mobile Homes) 

And it appears that the resolution to the question of “is a multi-unit residential building” considered “residential” or “commercial” is in fact “residential,” according to the letter posted by Mike McMahon that will be mailed out to folks.   So, one has to wonder whether the Plaintiff chosen has legal standing to bring this case in the first place, if the larger question is of uniformity comes down to the application of the commercial tax as the residential, even multi family residential is taxed at a similiar or “uniform” rate and none of the parcels owned by the Planitiff would be taxed at the commercial rate.

Although from my reading of the complaint, it is highly vague as to the reason why Measure H is not uniform, other than the lawyer declaring that it is not uniform under California Government Code 50079.  Not to mention the California Government Code is pretty vague in and of itself, here it is in its entirety:

50079.  (a) Subject to Section 4 of Article XIIIA of the California Constitution, any school district may impose qualified special taxes within the district pursuant to the procedures established in Article 3.5 (commencing with Section 50075) and any other applicable procedures provided by law.
   (b) (1) As used in this section, “qualified special taxes” means special taxes that apply uniformly to all taxpayers or all real property within the school district, except that “qualified special taxes” may include taxes that provide for an exemption from those taxes for taxpayers 65 years of age or older or for persons receiving Supplemental Security Income for a disability, regardless of age.
   (2) “Qualified special taxes” do not include special taxes imposed on a particular class of property or taxpayers.

The only argument that is fleshed out a bit more fully in the complaint has to do with the exemption for seniors and people receiving SSI benefits.   The argument is that because seniors and those on SSI have to apply to get the exemption then it is an “additional requirement…not contained in Government Code section 50079…” and therefore they are using that as a reason why Measure H should be invalidated as well.

The second argument is going to be a tough one, if the court decides to go with the reasoning of “if you have to apply for the exemption that you are entitled to then the whole parcel tax is flawed and therefore should be repealed” a lot of school district’s parcel taxes will be in jeopardy as that seems to be the standard practices for senior and SSI exemptions.  A few that have the exemption application requirement include Albany (see source below or since we are talking legalese: infra), Los Gatos, San Francisco, Mountain View (infra), just to name a few.

The attorney in this case has really left the door wide open as to the interpretation of what is “uniform.”    After all, one could argue that “uniformity” could merely consist of taxing every single parcel of land except those that have been exempted per section 50079.   It could also mean that as long as there is a set rate (e.g $0.15 per square foot) even if it’s only for the commercial and industrial parcels that is considered uniform as well. 

Uniform could mean that every parcel (commercial, residential, industrial) has to be taxed at the same flat rate, but if the judge makes that decision, a lot of parcel taxes would face legal challenges as well.  One of which is Albany’s which has a different rate structure for commercial ($0.05 per square foot up to a cap of $250, which ever is higher) as opposed to residential parcels, (flat $250) not to mention the fact that the senior and SSI exemption has to be applied for just like Alameda’s.   Additionally, Piedmont’s would be under scrutiny as well as there is a different rate structure depending on the size of the parcel as well as what type of parcel it is.  If we are arguing that a minimum and maximum cap is what makes Measure H not uniform, one could posit that Piedmont’s tax with its lower cap (anything below 5000 sq ft taxed at $1141 per parcel) and higher cap (anything 20,000 sq ft and above taxed at $1937 per parcel) is also not uniform, and that’s just for the residential parcels.  Mountain View has a similiarly structured parcel tax to Piedmont as well with an upper and lower cap based on square footage of the parcel.

One resource that has been cited quite a bit by folks in favor of the lawsuit has been the FAQ by the firm Orrick, which has provided an FAQ of sorts for parcel taxes.   And of course, it doesn’t really shed much more light on what is considered “uniform” under the law either.  However, what is interesting is that opponents of this parcel tax measure had/have another option and that is to take the parcel tax back to the voters to repeal the tax.   And, they would only need to get a simple majority vote, 50% + 1 rather than the 2/3 vote that was required to pass the measure in the first place:

Proposition 218, adopted in 1996, subjects nearly all taxes to repeal by initiative.  Unless the Parcel Tax is pledged to repay bonds or other contractual obligations, a voter petition drive could put the tax back on the ballot.  And repeal would only take a simple majority vote…

Personally, if that was what the commercial property owners/businesses were looking to do, this would have been a much less aggressive and divisive move than a lawsuit.   With a voter driven repeal at least they would have the backing of 50% + 1 of the voting population, provided they won, that would give them the satisfaction of being able to say that they had the backing of a substantial portion of the community, as opposed to what is currently happening.