Litigation
Oct. 6, 2012
Constitutionality of 'fire fee' challenged
A California taxpayers association filed a lawsuit Wednesday challenging the constitutionality of a new $150 annual fire fee imposed on rural homeowners.
Daily Journal Staff Writer
A taxpayers association and 11 other plaintiffs filed a lawsuit Wednesday challenging the constitutionality of a new $150 annual fee imposed on some 825,000 homeowners in rural areas of the state to subsidize fire prevention efforts.
The Howard Jarvis Taxpayers Association, an advocacy group, along with a fire department and some individual homeowners filed the putative class action in Sacramento County Superior Court seeking refunds for individuals affected by the fee.
They claim the fee is really a tax - and as such needed a two-thirds vote of the Legislature to pass. Because the fee passed only by a simple majority vote, the association claims it never became law. The California Department of Forestry and Fire Protection and the state Board of Equalization are named as defendants.
"This tax was dreamed up by politicians in Sacramento who are so desperate for revenue that they were willing to ram this through the Legislature without the proper two-thirds vote," said Jon Coupal, president of the taxpayers association, in a statement. "It is our goal to overturn this tax, prevent the politicians from taking more money from hardworking people for a program they were already paying for and help taxpayers to get a refund from the government."
Janet Upton, spokeswoman for the California Department of Forestry and Fire Protection, said the lawsuit seeks to "obstruct badly needed funding."
"This fee provides stable funding to help prevent the kinds of destructive fires we've seen this summer," Upton said. "We believe it's legal. We are moving forward with our responsibility to implement the law."
Passed by the Legislature in 2011, the $150 fee applies to homeowners in the State Responsibility Area, comprised of rural regions where the state is financially responsible for the prevention and suppression of wildfires. It took effect in August and is estimated to raise roughly $84 million in its first year.
Gov. Jerry Brown said rural residents should pay more for fire prevention because of the sprouting of large developments on rural lands that are at significant risk of wildfires.
Critics said the charge penalizes homeowners who already pay fees for rural fire protection. Those homeowners can receive a $35 credit to offset the fee's cost.
In 2010, the taxpayers association -which advocates for lower taxes - helped pass Prop. 26, a voter-approved constitutional amendment requiring a two-thirds vote by the Legislature to pass taxes and fees. Those fees that provide a direct benefit to the payer, however, require only a majority vote. In its lawsuit, the association said that standard isn't met because it requires homeowners in the State Responsibility Area to pay a uniform fee regardless of their individual fire risk.
"This will certainly test the language that the Howard Jarvis organization sold the voters on Prop. 26," said Michael B. Salerno, associate director of the Center for State and Local Government Law at UC Hastings College of the Law. "Under that language, a strong case can be made that this is a fee and not a tax." href="mailto:
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