Marin IJ

Ross Valley flood control measure criticized as unfair, illegal

Richard Halstead
Marin Independent Journal
Article Launched:04/07/2007 11:22:13 PM PDT

Backers of a new charge to control flooding in the Ross Valley are calling it a fee - but critics insist it's really a tax.

More than semantics is involved, because if the charge were a tax, it would require approval by two-thirds of affected voters. As a fee, however, it can be passed by a simple majority.

Tax, fee or charge, the average Ross Valley area property bill will be about $125 a year for 20 years.

The program will raise about $40 million for flood control over two decades. The revenue would make the district eligible for millions more in state grants.

About 1,200 homes and 200 businesses were damaged by the flooding that occurred across much of Marin in the early morning of Dec. 31, 2005, with downtown San Anselmo expecially hard hit. It wasn't the first time the Ross Valley had been inundated. The Corte Madera Creek Basin has flooded 14 times over the past 50 years.

So far, the proposed "fee" has elicited a trickle of protest from those who will pay it. As of Friday, 30 residents had filed letters with the Board of Supervisors decrying the latest threat to their wallets. A public meeting has been scheduled for May 1 to solicit additional comment.

Residents in Fairfax, Green-brae, Kentfield, Larkspur, Ross and San Anselmo would be affected, and if more than half of the 15,000 property owners object by May 1, the tax idea will be dropped.

Otherwise, ballots will be mailed out, and the tax will be approved if a simple majority of the property owners who vote approve it. Voters will have 45 days to return their ballots to the clerk of the Board of Supervisors.

Several people expressed doubt that the drainage fee was legal under Proposition 13 and Proposition 218, which placed strict requirements on how local governments can raise taxes. Proposition 13, overwhelmingly approved by voters in 1978, requires two-thirds support to raise taxes. Proposition 218, which followed in 1996, tightened loopholes after local jurisdictions began using assessments and fee increases to make up for revenue lost due to Proposition 13.

"A tax is a tax, and it is shameful that the 'storm drainage fee' be considered anything other than a tax," wrote Gerald and Nancy Kelleher of San Anselmo.

Frank Berto of San Anselmo seconded that notion.

"A fee implies that the payer receives some service or benefit. Our property will receive no benefit from this tax," Berto wrote. "We suffered no flood damage in the flood of 2006 nor in the much more severe flood of 1982."

Timothy Bittle, an attorney with the Howard Jarvis Taxpayers Association in Sacramento, said his association has sued several municipalities that enacted storm drainage fees without conducting an election. In those cases, "We have contended that they are special taxes and need a two-thirds vote," Bittle said.

Fees are generally defined in the law as payment for a service that a property owner requests, Bittle said.

"Theoretically, you subscribe to water, you subscribe to sewer. You ask to be connected and turned on," Bittle said. "The same thing with garbage collection.

"But in the case of storm water drainage our theory has been there is no service actually being provided to the property," Bittle said. "The property owner doesn't have any right to turn it off. He can't say, 'I'm going to Europe for a month and can you please turn off my storm drainage service while I'm gone?'"

Rather than test this theory in court, the Jarvis Taxpayers Association settled these cases after the offending cities agreed to hold elections of the type that the Ross Valley flood control district is proposing - where a simple majority can authorize the fee.

"Technically, we as an organization continue to believe that these type of things are special taxes that should receive a two-thirds vote," Bittle said. "But we're too busy going after cities that try to pass them without any vote at all to hassle the county of Marin, which is clearly going through a thoughtful process."

The flood control district has hired a Berkeley-based consulting firm, MIG Inc., to manage the campaign.

Joyce Vollmer, a spokeswoman for MIG, said, "We're very clearly following exactly what is written in Prop. 218. Prop. 218 spells out exactly what a fee is. That definition itself was written by the Jarvis people. This follows that exactly."

Like Berto, some residents in the district, particularly those living in the hills, wonder why they should have to pay when their homes never flood.

"Who's to pay if our hillside ever needed reinforcement from sliding?" Arthur and Lisa Lange of Greenbrae ask in their letter.

Bittle said that Berto's complaint - that the proposal will provide him with no flood relief - would be a legal issue if the flood control district were proposing to charge Ross Valley residents based on the amount of flood relief they receive. That's what the Sacramento Area Flood Control Agency is currently doing.

"We are only assessing those properties which are directly protected from inundation by the project features we are constructing," said Stein Buer, executive director of the Sacramento agency. "We are not assessing any upland areas at all."

The Ross Valley district, however, is basing its fee on how much storm water runoff is generated by each property, meaning even people out of the flood zone get a bill.

"The district is treating it as a service rendered to property owners where they collect, carry away and store the storm water that is running off everybody's property," Bittle said. "Just like garbage. That's another form of collecting something that is produced on your property. The people whose property produce one residential bin pay less than a commercial property that produced a three-yard Dumpster in the same period of time."

Vollmer said people who live in the hills use the storm and drainage system "because the rain water that falls on their house has to go somewhere."

People in the hills also benefit if flooding is prevented in the flatlands, where the hub of activity is, Vollmer said. If the flatlands are flooded, the main traffic routes will be impassable and emergency vehicles will be prevented from reaching people in the hills, Vollmer said. In addition, the flatlands are where schools and commercial areas are located, she noted.

In his letter, Joe Fugazzotto of Kentfield objected to having to pay to rectify problems caused by buildings that were erected over San Anselmo Creek with the permission of town officials. The district has identified two privately-owned buildings on the creek in San Anselmo as key choke points. The buildings house Mama Teresa's Italian Ristorante and San Anselmo Coffee Roasters.

"I feel that any costs should be borne by the private property owners and the town of San Anselmo for negligently allowing such construction," Fugazzotto wrote.

Jack Curley, who oversees the county's participation in the flood protection effort, said he sympathizes with that argument. But Curley said, "We can't build a program on who we're going to penalize for past actions. We have to move forward in a way that makes a difference."

Mark Dean of Fairfax wants to know why he has to pay the tax, because Fairfax residents are already charged a run-off fee. Ian Roth, Fairfax's finance director, said that fee, which is also based on the amount of impermeable surfaces on properties, was created primarily to prevent pollution from traveling through the storm water system to streams and the ocean. Larkpur has a similar run-off fee.

Two property owners asked why senior citizens don't get a reduced rate.

"We are on a fixed and limited income and simply do not want it eroded further by a new tax," wrote Fred and Denyce Codoni of Fairfax. "Looking at our 2006-2007 property tax bill for Fairfax, we see not only the basic tax but 11 add-ons totaling over $1,000."

Supervisor Hal Brown, who has spearheaded the effort to raise taxes for flood control in the Ross Valley, said if seniors were exempted, other people - such as those living in the hills - might also expect immunity.

"If you look at all those exemptions, who do you have left except those who were flooded?" Brown said.



Using a computerized hydraulic model of Corte Madera Creek, the flood control district has identified eight flood "bottlenecks" that it plans to resolve first with money from the storm drainage charge.

- Lagunitas Bridge fish ladder 600 feet downstream from the bridge.

- Lagunitas Road Bridge

- Madrone Avenue Bridge

- A commercial building that spans the creek at 636 San Anselmo Ave., where Mama Teresa's Italian Ristorante is located.

- A 550-foot culvert that runs under downtown Fairfax

- Nokomis Avenue Bridge

- Sycamore Avenue Bridge

- A commercial building that spans the creek at 546 San Anselmo Ave., where San Anselmo Coffee Roasters is located.

Contact Richard Halstead via e-mail at rhalstead@marinij.

IJ Photo
Fred and Denyce Codoni, standing near their Fairfax home on a footbridge in Deer Park, question why seniors can't be given a reduced rate in the flood control plan. Referring to the add-ons on their property tax bill, the Codonis say the new tax would be hardship because they are on a fixed income. (IJ photo/Alan Dep)

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MarinIJ photo 
Fred and Denyce Codoni sit in their Fairfax home with a recent tax bill on Friday. The Codonis are opposed to a proposed storm drainage fee. (IJ photo/Alan Dep)

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