Ross Valley flood control measure criticized as unfair, illegal
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
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
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
"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
"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
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.
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)
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)