Court will rehear decision to nix portions of former school parcel tax

Court will rehear decision to nix portions of former school parcel tax

Michele Ellson

Updated at 6:00 p.m. Tuesday, January 8

A state appeals court has agreed to revisit its decision to strike down portions of a 2008 Alameda school parcel tax, a ruling that could ultimately cost Alameda Unified millions of dollars and put other school districts’ parcel taxes at risk of being tossed by courts.

Meanwhile, former Vice Mayor Rob Bonta – in his new perch as a state assemblyman – has introduced a bill that would explicitly allow school districts to charge different classes of property owners different tax rates, as Alameda’s former Measure H had. The bill, Bonta’s first, specifically negates the appeals court's ruling that the district overstepped its authority when it charged residential and commercial property owners different tax rates.

In a petition filed 15 days after the court’s December 6 ruling, the school district’s attorneys said a First District Court of Appeal panel ignored prior court decisions supporting the district’s contention that it had the right to tax homeowners and commercial property owners differently and also, key portions of the history around the state Legislature’s efforts to restate school districts’ ability to levy special taxes in the wake of a 1986 voter initiative that called those rights into question.

“To reach the conclusion that Measure H is beyond statutory authority, the opinion side-steps relevant precedent and canons of statutory construction, and misconstrues legislative history,” the district’s lawyers wrote.

They said the intent of state statutes that spell out school and special districts’ right to levy special taxes was to restate those rights in the wake of Proposition 62, which was intended to curb the imposition of special taxes by districts and local governments.

The uniformity clause included in state law was intended to address taxes that were being imposed on new construction only, the district’s attorneys said, arguing that prior case law clearly sets out the right to tax different classes of property owners differently.

“The interpretation proffered by the District is supported by the plain language of the statute, legal precedent, legislative history and allows Measure H and similar parcel taxes across the state to remain intact,” the petition says.

Several districts across California have taxes similar to Measure H, which charged different rates for homeowners and commercial property owners during the three years it was in effect. Albany Unified charges homeowners a flat rate and commercial property owners based on their square footage – a structure that has been in place since before Proposition 62 passed, the district’s lawyers note – and a several other school districts in California gained approval of similar taxes this past November.

David Brillant, the attorney representing George Borikas and other property owners who sued the district to overturn the tax, said the petition was expected. He said such a proceeding is typically held to ensure arguments are raised and address before one of the parties in the suit asks the state Supreme Court to weigh in on the case.

“The District felt they needed to make a few more arguments to the Court of Appeal, especially since they changed lawyers,” Brillant said in an e-mail response to a reporter’s request for comment.

The petition says the school district “was not made aware” of the court’s intent to consider certain portions of the legislative history around the state law that allows school districts to levy parcel taxes by its prior attorneys and that district officials didn’t have access to the history to evaluate prior to oral arguments in the appeal.

The voter-approved Measure H tax charged homeowners $120 a year and commercial property owners 15 cents a square foot up to a cap of $9,500 during each of the three years it was in effect. It was replaced by Measure A, which charges almost every Alameda property owner the same rate up to a cap of $7,999 and which has withstood its own court challenge.

In the Measure H case, the appeals court ruled that state law required the district to charge every property owner the same amount, $120 per parcel, and sent the case back to a trial judge to determine whether refunds were due. The majority of the $4.5 million to be raised by the tax was paid by commercial property owners.

A date to rehear the case has not yet been set, district officials said in a press release, which said district officials will continue to consider additional legal and legislative options.

In a press release, Bonta said his bill “clarifies existing law by stating that school districts are allowed to assess parcel taxes in accordance with rational classifications among taxpayers or types of property within a district, as long as the taxes are applied uniformly within those classifications.”

Related: School district could owe refunds on 2008 parcel tax

Measure H ruling could impact other schools’ tax measures