Mike Lewis in his column published yesterday in Fox and Hounds makes numerous assertions that are simply not accurate. For starters, it is incorrect to say that SB 1298 is not an attack on Proposition 218. In fact, it would undermine one of the key provisions in Proposition 218, the right to vote on taxes and benefit assessments. Before the initiative was approved in 1996, local governments jammed through benefit assessments for projects like stormwater and street light projects with no voter or property owner input at all. One of the important early legal battles that defined Proposition 218 was the appellate court decision in HJTA v. Salinas. That victory established a clear distinction between property related fees imposed for traditional services like water, sewer and refuse collection which do not require a ballot election, and storm water benefit assessments that do. SB 1298 completely contravenes the Salinas court by stating that stormwater is subject to the lower threshold of voter input.
Beyond showing contempt toward the existing separation of powers doctrine between the judiciary and the Legislature, the measure will also promote legal uncertainty since SB 1298 only amends state statute and not Proposition 218 directly. If municipalities and water agencies attempt to implement SB 1298, HJTA will be in court the next day. Our track record in defending both Proposition 13 and Proposition 218 in the courts speaks for itself.
Finally, Mr. Lewis states that there is no money for stormwater projects. Proposition 218 provides a myriad of ways to fund these projects, either through a majority vote benefit assessment or a two-thirds vote special tax. If municipalities feel that they are unable to hit these thresholds, perhaps that speaks to the lack of validity these various projects possess. Recent elections have shown that public agencies, if they desire to make the effort, can accomplish a two-thirds threshold. The needless abuse of taxpayers through increased unconstitutional storm water rates will be the only result if SB 1298 is approved.