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Lawsuit over Alameda Measure H Parcel Tax Far From Over

Earlier this week, the Alameda Unified School District issued a press release suggesting that they were poised to win the Measure H lawsuit over the 2008 parcel tax. David Brillant, attorney for the plaintiffs, issued his own press release today noting that the District has not yet won the lawsuit and, in any event, the plaintiffs will appeal the decision if they do.

In their announcement on Thursday, the District said that their attorney, David Nied, had submitted to the court a “proposed statement of decision” that ruled in favor of the District; the District said that this indicated that Judge Mark Burr of the Alameda County Superior Court was about to rule in their favor. The case is Borikas, et al. v. Alameda Unified School District, et al., case number VG08405316.

But David Brillant on behalf of Borikas, et al, filed with the court today an objection to the proposed statement of decision.

“Today, the Borikas Plaintiffs filed their objection to the proposed statement of decision drafted by AUSD and they have no plans to immediately give up their fight challenging the constitutionality of the split-roll parcel tax implemented by Measure H and proposed in Measure E,” stated Brillant. “A win for AUSD at the trial court doesn’t mean that a split-roll tax is constitutional…or that this fight is over,” he concluded.

Measure E, like Measure H, implements a “split-roll” tax – homeowners will pay a flat $659/year, and commercial property owners will pay a rate based on the number of square feet in their lot, with a cap at $9,500. The different tax structures between residential and commercial properties constitutes the “split-roll.”

The District’s proposed statement of decision, and plaintiff’s objection to that statement is included below.

Measure H Objection and Proposed Statement of Decision

3 comments to Lawsuit over Alameda Measure H Parcel Tax Far From Over

  • AUSD and its fundraising political consulting firm seem to know they’re losing the campaign for Measure E, and this declaration is but the latest sign of their desperation. “See?” they say, “Measure E MUST be legal! You’re not really abetting a crime by voting yes!” But in spite of the plethora of “Vote Yes on e” signs, with the “E” all but invisible…a sure sign of amateur night at Erwin & Muir…the tide has definitely turned against the parcel tax.

    Many Alameda residents with very tight household budgets these days won’t speak out, but they will make the effort, even with that tricky mail-only ballot, to vote No. Some critics say this is selfish of them, but we might as well say the teachers and their unions are the selfish ones, since most of the new funds will go to salaries, including raises the unions won for their members recently, along with some of the most generous pension funds in the state.

    I’m confident that Measure E will be defeated, and that even if it does pass, both it and Measure H will be found unconstitutional, even if the plaintiffs have to take their case all the way to the California Supreme Court! You can save AUSD all those lawyer and court fees — well over $200,000 last time we looked — by simply voted No on E.


  • propubliceducation

    A quick review of the FAQs on APLUS’ website shows only 3 other districts in CA that have a similar structure to AUSD’s Measures H and E. Albany’s is $149 for residential and $0.03 per parcel sq. ft. for commercial up to $149. Piedmont’s (a “progressive” tax) ranges from $1,141-$1,937 for residential; $758/unit for multi-family dwelling units; $1,937-$2,897 for commercial; and $579 for undeveloped parcels. Berkeley’s is 22.80 cents/sq. foot on all improvements on residential parcels, 34.36 cents/sq. foot on all improvements on commercial,and $50 per parcel on unimproved Parcels.

    So no one is going to sue Albany because the highest tax is $149/year, or Piedmont because the highest is $2,897, or Berkeley because what makes it “split” is $50 for unimproved, plus no cap, so it’s a progressive tax. But Alameda’s different: $659 for residential and up to $9,500 for commercial. The commercial rate is more than 14 times higher than the residential! And since some businesses have more than one parcel, they can pay the $9,500 multiple times. The numbers are staggering!

    That’s why businesses are suing AUSD. Howard Jarvis Taxpayers Association & Californians for Property Rights signed the Argument against Measure E in the Sample Ballot. They will sue all the way up to the CA State Supreme Court; they don’t want other districts to copy Alameda and pass parcel taxes that primarily tax businesses. If AUSD loses the lawsuits, AUSD has to repay all the taxes collected from Measures H ($4.3M/year) and E ($14M/year). AUSD does not have tens of millions of dollars to repay taxpayers so then the State will takeover AUSD! Voters beware: Measure E is gambling with public eduction.

    Also, the economy is already tough. The tax is too much for some of Alameda’s businesses. And the cap shifts the burden from Towne Centre to the small businesses on Webster, Encinal, Park, etc. A yes vote on E means a “yes” for large developments, chain stores, multi-level stores and apartment buildings (Measure E charges same for multi-level and single floor buildings) and this is for 8 years.

    Vote NO on Measure E to protect public education in Alameda. Make the District float another parcel tax that isn’t a split roll so no litigation, and that doesn’t shift the tax burden to Alameda’s small businesses so they can survive.

  • The strategy behind the latest lawsuit joined by AUSD becomes clear in today’s Journal, 5/28, when letter writer Page Barnes, (probably a teacher with a name like that), writes, “…this case should silence the critics who say that the district has done nothing to fix the root state funding problem…” Oh, yeah? Page says in the next breath that it will take years to be decided, so Measure E is still necessary. Cancels himself out in a few lines…and doesn’t silence his critics!

    Anyone can research the fact that this timely lawsuit has historic precedents, going back to the Seventies, when three similar lawsuits were filed and failed, as this one will. So don’t hold your breath on change in state funding!