The Libertarian Party of California has joined the Howard Jarvis Taxpayers Association (HJTA) and several other local taxpayer organizations in OPPOSITION to SB 231 (by State Senator Bob Hertzberg) which would erode the protections afforded to taxpayers under the Right to Vote on Taxes Act (Proposition 218) as they relate to fees, taxes and assessments imposed for stormwater runoff programs. Changing the longstanding definitions of sewer and stormwater will create uncertainty among municipalities, guarantee litigation and lead to thousands of dollars of new assessments on property owners who will be deprived of their ability under Proposition 218 to have meaningful input as to the nature, extent and amount of those levies.
In 1996 California voters passed Proposition 218, an initiative that imposes various voter and/or
property owner approval procedures prior to being subject to local exactions. Property related fees
for water, sewer and refuse collection services are not subject to the more stringent approval
requirements for the simple reasons that, historically, local governments imposed these fees well
before 1978 and the passage of Prop 13. Fees for “storm water runoff” were rare or non-existent
prior to Prop 13. SB 231 purports to overturn a published appellate court decision which involved the
interpretation of constitutional language In 2002 the City of Salinas decided to approve a stormwater
assessment without a vote of the people. They argued that sewer and stormwater for purposes of
treatment were essentially both sewer and decided a vote was not needed under Proposition 218.
In the case HJTA v. Salinas the 4th District Appellate Court ruled that stormwater was in fact distinct
from sewer service and thus a ballot election was required. The court used both the constitutional
language in Prop 218 as well as existing statutory language as the basis for its decision, put in place
by Proposition 218 supporters following its approval. The very same Omnibus Act language that SB
231 seeks to amend makes a clear distinction between sewer and drainage systems. Under current
law, a drainage system “means any system of public improvements that is intended to provide for
erosion control, landslide abatement, or for other types of water drainage.” It was this language that
the Court used to make its decision.
Needless to say, unsettling a published appellate court decision via state statute is not only unwise,
but in this case it violates the California Constitution. SB 231 is a solution in search of a problem.
No one denies that storm water runoff programs are a legitimate public service. Proposition 218 already
permits for municipalities to raise new revenue they need to fund stormwater programs. They simply have to put the issue to the people paying the bill. This can be accomplished either through a benefit
assessment process or even a two-thirds vote special tax. What’s the result of SB 231? A legal
quandary and a nightmare for local public agencies. Should SB 231 be approved and signed by
Governor Brown, the results will be needless litigation and potentially thousands of dollars of new
costs placed upon taxpayers. Storm water runoff programs and services should be financed with the
existing revenues of government. If that revenue is insufficient, there are ways of seeking new
revenue under Prop 218. All that is required is approval by those financially obligated to finance the