Friday, July 25, 2008

Judicial activism against the environment

A blow is struck by judicial activism on behalf of a misguided minority of landowners in a recent California Supreme Court decision overriding the majority of voters in a Santa Clara County Open Space Authority election (decision here). Worse still, this decision will make future funding of open space purchases by any California government agency more difficult, although not impossible. We at CGF participated in a "Friend of the Court" brief on behalf of the Open Space Authority, and are sorry things didn't go the right way.

The background is that California law since Proposition 13 has allowed a simple majority of voters to decrease tax rates but requires a two-thirds supermajority to increase "special taxes" (taxes not just meant for general public benefit purposes). A "special assessment," however, is different from a "special tax" in that it provides a special benefit to specific properties, and doesn't require a two-thirds vote. The entire legal battle is over what constitutes a "special assessment."

Proposition 218, passed in 1996, tightened the legal requirements for special assessments in ways that remained poorly defined (probably to keep voters from anticipating specific problems and voting against the measure). As the Supreme Court notes, Prop. 218 created a paradox whereby a "special district" must constitute all the parcels that receive a special benefit from the assessment, but it also says that if the benefit reaches every parcel in the district then it isn't a "special benefit" but rather a general benefit that needs a supermajority to pass.

The Supreme Court dealt with this paradox by saying that if parcels receive "direct advantages" from the benefit, like proximity to a park, then it's a special benefit even if conferred on all parcels in the district. So far, so good. But then the Court spends the remainder of the opinion ignoring what it just said. The Open Space Authority had justified the assessment by describing the direct advantages all parcels in the district will receive, such as better views and improved access to public recreation. The Court ignores this and says because these benefits reach everyone, they aren't special benefits and fall under Prop. 218 proscriptions.

So why would the Supreme Court behave so strangely? The likely reason is that Prop. 218 was itself a voter reaction to a previous Supreme Court ruling that allowed expansive uses of special districts. The Court is aware that initiative propositions are the only mechanisms that voters have to overrule it, so the Court felt obligated to overreact to the Open Space Authority's special assessment, something that resembled a standard property assessment.

Short of changing Propositions 218 or 13, this decision is the last word on this issue, and an assessment like the Open Space Authority's will require a two-thirds supermajority. However, somewhat different special assessments may still be possible. An assessment that set up a priority acquisition area and assessed more in the immediate vicinity of that area than far away from there, or assessed more when an acquisition is first made, might still be legal. This is something that will have to be tested in the future.


Thursday, July 24, 2008

Online tool for Letters to the Editor email addresses

I came across this the other day: an online tool for finding email addresses for sending letters to the editor, based on physical location. When a land use issue affects a particular place, this can help to figure out which newspaper may be interested in it.

I tried it out for Mountain View, where I live. It didn't get all the papers, but it did get some, so it's useful.


Thursday, July 10, 2008

Audubon Society agrees with CGF criticism of LAFCO

We at CGF have noted that the failure of Santa Clara County LAFCO has reached a level so that we have "No confidence" in the organization. We're not alone.

The Santa Clara Valley Audubon Society passed the following resolution:

"To direct staff to draft correspondence to San Jose's City Council, Mayor Chuck Reed, the County's Board of Supes, and the City of Mountain View (These are the bodies that have appointed the LAFCO commissioners). Correspondence to cover that we've reviewed the recent action by the Committee for Green Foothills (CGF), and the recent decisions by the LAFCO commission and that we are similarly deeply concerned that the commission's mission to control urban sprawl and protect open space is being seriously undermined and that those who have appointed the commissioners should consider what actions they can take to ensure the Commission performs its mission in the best interests of the the citizens of Santa Clara Co. (or words to that effect)."

We hope that LAFCO and the appointing agencies start to pay attention.