Monday, February 15, 2010


Tiburon v Bonander: Why communities will no longer be able to choose to assess themselves.

January 4, 2010, a California appellate court: in an opinion by Judge McGuiness, decided the case of the Town of Tiburon v. Bonander. The court found that a special district formed to bury utility wires, could not levy an assessment whatsoever against the property owners in the assessment district because the assessments exempted a school and were, at least in part based upon lot size. The court found that the California voters in a 1996 constitutional initiative Proposition 218, had written into the marble tablets of the California constitution the concept that “An assessment can be imposed only for a “special benefit‟ conferred on a particular property. ...A special benefit is “a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large.‟. . . Further, an assessment on any given parcel must be in proportion to the special benefit conferred on that parcel: “No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel.”

What the court decided was that if a special assessment district exempted any property, such as a school, then logically, (it said) the assessment on every other parcel must exceed the non-exempt parcel’s proportional benefit. Additionally where the Town differed its assessments on lot size because it would cost more to put utilities underground where the lots were larger, the court held that this was not explicitly proportional to the benefit received. That it might incidentally benefit a parcel to bury, say, 200 feet of overhead line proportionately to a parcel with 25 feet taken out of its area view does not seem to have occurred to the court.

Comment: Proposition 218 was yet another of the ever-popular “let’s get something for nothing” initiatives. Like the two thirds rule for the legislature to pass a budget, it is a law that chokes off the right of the community to engage in some common effort. As interpreted by the appellate court in this case, the law appears to condemn to oblivion any effort of a community to form a special assessment district, since someone can probably always make an argument that at least one parcel is receiving a benefit one iota less than its cost. And even where it could have been argued, as in this case, that a large parcel must be getting a greater benefit from undergrounding , there is likely to always be some aspect of the formula for assessing properties that can be litigated as not equal to the benefit received.

1 comment:

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