Mar 1 2013

OPINION: Measure A Could Open the Door to Legal Challenge

Opponent of Measure A responds to proponent  –  

The Borikas decision has been vacated by the Court of Appeal.  The lower court decision stands, which does allow a size-based parcel tax.  Mr. Elliott misstates the claim that Borikas needs to be settled before an equitable school parcel tax can be passed in Piedmont.  It does not.  Currently, existing law allows tax based on parcel size.  Furthermore, Borikas did not challenge the per-square-foot tax, it challenged the differing tax rates levied on different types of property (residential, commercial, etc.).  Piedmont could pass a tax that is fair and equitable, based on parcel size, without violating the law.  And we could do so in June, 2013 and still meet the deadlines outlined in Jon Elliott’s opinion article.

Passing Measure A opens the door to legal challenge because it is inequitable; it gives lower taxes to large parcels than to small ones (compared with the current Measure B tax).  A court challenge would likely delay Piedmont’s budget process even longer than fixing Measure A and putting a revised measure on the June ballot.

Bruce Joffe, Piedmont Resident

Editors’ Note:  The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association (PCA).  PCA does not support or oppose ballot measures or candidates for public office.  Legal opinions are those of the author. 

3 Responses to “OPINION: Measure A Could Open the Door to Legal Challenge”

  1. With due respect, Mr. Joffe is mistaken, factually and legally.
    –The Borikas decision is currently vacated as a result of the Court granting rehearing. It has not been reversed and may be upheld. None of the opponents of Measure A have even tried to explain why the Court would reach a different result on rehearing. I encourage folks to read the Borikas decision to assess the strength of its reasoning directly.
    –There is no potential legal challenge to a “flat” tax, which is what the Borikas court found that state law requires. No flat tax has ever been challenged.
    –If Piedmont were to adopt a tax like current Measure B again, it likely would be sued–as a bunch of other school districts have been. Piedmont would be foolish to adopt a tax that is likely to result in a lawsuit and hundreds of thousands in legal fees.
    –While Borikas did not challenge a “per square foot” tax (and thus did not rule on it), its reasoning also rejects a “per square foot” tax. The attorney who represented Borikas has filed suit against other school districts that have adopted a “per square foot” tax. Again, we would likely be sued.
    –Proposed Measure A taxes all parcels equally, which is what Borikas says state law requires. If Borikas is reversed, or the Legislature changes the law, we can have a new election then if the community supports it. For now, there is only one prudent choice–adopt Measure A.

  2. The fundamental question posed by David Brilliant, Borikas plaintiff attorney, is whether “Measure H exceeded the taxing authority given to school districts under section 50079 because the tax does not apply “uniformly” to all parcels in the district.” (Borikas decision p4) The Court’s answer: “We agree with plaintiffs that the plain language of section 50079 and attendant rules of statutory construction demonstrate the definitional language at issue is language of limitation and does not empower school districts to classify taxpayers and property, and impose different tax rates.” (Ibid p16) As you state, Borikas does not disallow taxation by square foot; nor does the Borikas decision demand a flat parcel tax. According to the now vacated Borikas decision School Districts may not impose differential tax rates across different classifications of property.

    Some of the recent suits by David Brilliant, based on Borikas, are indeed against Districts that used square foot such as Measure CL in Los Angeles passed November 2012. Measure CL taxes residential property at 2 cents and other types of property at 7.5 cents a square foot. The issue is the different rate across different types of property. Would Mr. Brilliant have grounds for a suit had Measure CL used the same per square foot rate for all properties?

    Whether Measure A passes or fails on Tuesday, I ask our School Board to seriously consider a per square foot tax based on dwelling; this is most progressive and needed given the extraordinarily high cost of the Piedmont school tax. The old five tiered residential system was inherently regressive with very small homeowner lots paying 25x and more per square foot of the very large estate lots.

    And I ask the Board to consider the Federal “very low income” senior exemption in place in Orinda, Moraga, Oakland and Berkeley.

  3. On Wednesday, the Court of Appeal upheld the Borikas decision, thus again making it binding on AUSD and binding on trial courts considering challenges to school parcel taxes. See

    Although I doubt that opponents who repeatedly emphasized that the original ruling was vacated will acknowledge that their crystal balls were a bit cloudy, it would be nice if they acknowledged that the Board was prudent in acting when it did. They also might be a little less strident in claiming that a “per square foot” tax is valid under current state law. After all, they are not offering to indemnify the District if their views are mistaken.

Leave a Comment