Piedmont School Board
c/o Randy Booker, Superintendent

re: June 12, 2019 Agenda item: School Taxes

Dear President Smith and Board,

I.      I take exception to Mr. Booker’s comments May 22 at 3:48 that a single square foot building tax would not allow the District to have a separate flat tax on unimproved parcels.  I again cite two sources:
– SB2954 (2018) Legislation allows a separate unimproved parcel rate.
– Alameda School District’s 2011 Measure A square foot of building tax with a separate flat rate for unimproved parcels and the identical 2016 Measure B1 tax; both these taxes withstood legal challenges.  Significantly, Judge Petrou in his 2018 stipulated judgement required a flat rate tax on unimproved parcels to bring Measure B1 in alignment with Measure A (source: Sean McPhetridge, AUSD Superintendent,  4/4/2018 Press Release).

II.     While identifying all parcels by their Assessor’s Parcel Number (APN) is welcome, having multi-parcel owners combine parcels to a single APN to avoid paying multiple taxes is a problematic solution. Combining parcels at the County level eliminates some buildable lots. Should the owners wish to recapture these parcels, the process is not simple and is done at the City level.  Applications, surveys and new legal descriptions on new recorded documents would be required. This does not respect Piedmont taxpayers who have been so generous in their School support. Finally, eliminating buildable size parcels works against Piedmont’s requirement of meeting State mandates of providing more housing.
A multi-parcel exemption handled by the District is the proper and simple solution.

III.    I again propose a single $1.15 per square foot building tax which gives the District a 15% increase in tax revenue.  This acknowledges that Piedmonters have been very generous in their District support and a 25% in total increase is excessive.

Respectfully,
Rick Schiller, Piedmont Resident

Editors Note: Opinions expressed are those of the author.

A Search for Students to Fill Piedmont Schools

A reduction in school populations, the potential loss of State per student revenue, and State Open Enrollment laws have induced the Piedmont School District to widen student acceptance to Piedmont schools on a priority basis.  The children of Piedmont City employees and Piedmont School District employees have previously been admitted to Piedmont schools. Newly added for priority acceptance are the non-resident grandchildren of Piedmont residents along with children residing in certain neighboring Piedmont properties.

The matter will be undertaken at 7:25 p.m.,  Wednesday, June 12, 2019, School Board Meeting, City Hall, 120 Vista Avenue.  

Specific qualifications and applications are required for each potential interdistrict transfer student into the Piedmont schools.  Once a student is accepted into the Piedmont School District, they are allowed to remain during their school years.  See the proposed requirements linked below.

VI.B. Review and Approve Changes to Board Policy and Administrative Regulation 5117 – Interdistrict Attendance – 2nd Reading

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7:15 PM Piedmont School Board Meeting June 12, 2019, Piedmont City Hall, 120 Vista Avenue.

The public is invited to attend or watch the live broadcast on Cable Channel 27 and from the City website under videos/School Board meeting.

 VI.A. Conduct Public Hearing on the Proposed Levy of Current School Support Tax, Measure A, to be Levied in 2019-20

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One tax measure taxes every parcel equally and the second measure is an additional tax based on building square footage. Both measures will have a term of 8 years.

The public is invited to attend or watch the live broadcast on Cable Channel 27 and from the City website under videos/School Board meeting. 

8:45 PM  Piedmont Unified School Board meeting, June 12, 2019, Piedmont City Hall, 120 Vista Avenue.  

Staff recommendation to the School Board: 

Given the recent poll results and Piedmont’s current educational needs, District staff recommends that the Board of Education consider asking voters to support the renewal of its existing parcel tax to maintain current programs at the $2,709 flat rate (“Measure A”) and in a separate measure (“Measure B”) asking voters for an additional amount ($0.25 per square foot of building improvements) to ensure that Piedmont schools will be better able to attract and retain highly qualified teachers and educational support staff. Renewing the existing parcel tax (“Measure A”) would secure, $10.6 million in revenues.

Measure A is a continuation, no tax increase measure. We would also recommend an 8-year “duration” of the tax to provide a stable ongoing source of revenue to the District and fulfill the description as a pure continuation of what is in place today. Additionally, we recommend that a second measure (“Measure B”) be placed on the ballot. This second measure would be set at $0.25 per square foot of building improvements and would also have an 8-year duration. Passage of Measure B would result in an additional $2.6 million to the Piedmont schools. Importantly, the entire community would share the burden of an increased tax (although larger properties would pay more and smaller properties less – $139 per year for the smallest residential parcel). An added benefit is that if this tax were challenged from a legal standpoint, only the supplemental tax would be at legal risk. If both measures pass, the smallest square foot homeowner would pay $2,795 per year, and the largest square foot homeowner would pay $6,568 per year. Together, both measures would raise $13.3 million.

II. RECOMMENDATION: REVIEW AND ACTION District staff is recommending that the Board convene two (2) public hearings—June 12, 2019 and June 26, 2019—and adopt the two subsequent Board Resolutions that authorize both the renewal of a qualified special tax and a second qualified special tax for voter approval on November 5, 2019.

“The Board is requested to approve the attached Resolution 19-2018-19 “Proposing a Qualified Special Tax and Establishing Specifications of the Election Order Measure A”.

 The Resolution calls for an election on November 5, 2019 to extend the authorization of the Board to levy the current School Support Tax as permitted in Measure A for eight years starting on July 1, 2020.  The new Measure “A” is a renewal of the current School Support Tax—a uniform flat tax on all parcels.  The new Measure “A” will continue to provide an exemption for churches, public utilities, and those eligible for Social Security Supplemental Income.  The new Measure “A” also continues to permit an inflation growth rate of up to two (2) percent per year.

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VI.F. Approve Resolution 20-2018-19 “Proposing a Qualified Special Tax and Establishing Specification of the Election Order Measure B”

9:05 PM

The Board is requested to approve the attached Resolution 20-2018-19 “Proposing a Qualified Special Tax and Establishing Specifications of the Election Order Measure B”.

The Resolution calls for an election on November 5, 2019 to authorize the Board to levy a new School Support Tax as permitted in Measure “B”  for eight years starting on July 1, 2020.  The new Measure “B” is a uniform tax applied at $0.25 per square foot of building improvements.  The new Measure “B” will continue to provide an exemption for churches, public utilities, and those eligible for Social Security Supplemental Income.  The new Measure “B” does not include an inflation growth rate.

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Recommendation:

Two parcel tax measures: one for each separate parcel and a second measure, an additional add on tax based on square footage of each Piedmont building including single family residences. See full report linked below.

The School Board will discuss potential School District parcel tax measures at their Wednesday, May 8, 2019 Board Meeting in City Hall, 120 Vista Avenue.  The meeting will be broadcast live on cable Channel 27 and the Piedmont website under videos/school board. The tax measure agenda item is set for 8:40 p.m.

RECOMMENDATION: District staff requests that the Board accept the Department of Justice Tobacco Cessation Grant to address student use, exposure, and perceived harm of controlled substances (e.g. alcohol, drugs, and cigarettes).

“This specially trained officer (Juvenile Officer) will partner with PUSD to collaboratively conduct student and parent education classes on the harms of tobacco use and develop a Diversion Program for youth who are detected using tobacco products.

Finally, the Juvenile Officer will work with the PUSD to identify and implement tobacco/vaping mitigation strategies. Additionally, with the support of the Dept. of Justice Tobacco Cessation Grant, PUSD staff has developed goals and actions to help mitigate controlled substance use (e-cigarettes, drugs, alcohol)”:

Read full report below: 

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Read the full May 8 School Board Agenda: > https://agendaonline.net/public/Meeting.aspx?AgencyID=1241&MeetingID=72017&AgencyTypeID=1&IsArchived=False

The May 8th Piedmont School Board meeting will be held at 120 Vista Avenue, Piedmont, City Hall.  The Grant will be considered at 8:10 p.m. and broadcast live on cable Channel 27 and also on the City of Piedmont website under videos/school board. 

READ the staff reports below:

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I. ALAMEDA’s June 2008 tax Measure H imposed different tax rates on residential and commercial property. Alameda was sued by Borikas (as the case is commonly identified) and Alameda prevailed in Superior Court. Borikas plaintiffs appealed and the Appeals court reversed in favor of Borikas Dec. 2012.

March 2011 Alameda passed Measure A which abandoned the previous Measure H tax and imposed 32 cents “per building square foot.” Measure A also has an annual $7,999 cap and unimproved lots at $299. The same Boricas plaintiffs sued (Nelco, Inc. v. Alameda Unified School District, Alameda County Superior Court, #RG 08-405984 Measure A) to invalidate Measure A. Sep. 2011 Judge Frank Roesch, Alameda County Superior Court . . . rejected all the Plaintiff’s claims and dismissed the petition in the case (Alameda Patch Sep. 13. 2011). The per square foot tax of Measure A remained in place.

Nov 2016 Alameda passed Measure B1 which duplicated and continued the “per square foot of building” tax of Measure A. Alameda was then sued on the same issues by the same Nelco plaintiffs that had opposed Measure A in 2011. In Feb 2018 Alameda prevailed in Superior Court. See May 4, 2018: http://www.alameda.k12.ca.us/news/view?d=x&id=1525422895157

Since 2011 Alameda School District has used and continues to use the per square foot building tax. Alameda has been sued twice specifically on it’s per square foot tax. Both times Alameda Schools prevailed in court and uses the per square foot of building tax since 2011.

II. EMERYVILLE schools (“Emery”) passed a per square foot of building tax in July 2007. When considering a renewal of its previous 15 cent per square foot building tax, Emery relied on the legal opinion of two attorneys from Fagan, Friedman, Fulfrost, LLP and the opinion of a third legal expert on school tax challenges from Lozano, Smith. A fourth attorney that specializes in litigating educations issues, John Affeldt, was on the Emery board at the time. Measure K passed Nov. 2014 and imposes “fifteen cents of building area per square foot” for 20 years. In summary since 2007 the per square foot of building tax has been and is used in Emeryville unchallenged. Piedmont uses the same legal firm of Fagan, Friedman, Fulfrost, and LLP

III. BERKELEY passed School tax Measure H Nov 2010 which imposed a per square foot of building tax at 6.31 cents and 9.46 cents respectively on residential and commercial buildings. Nov 2016 Berkeley passed Measure E1 which imposed 37 cents per square foot of tax on “all taxable buildings.” Likely Measure E1 eliminated the residential commercial differentiation because of Borikas. Berkeley Schools use the per square foot building tax and has not been challenged.

IV. WEST CONTRA COSTA COUNTY started using per square foot of building tax in 2004; the tax imposed 7.2 cents per square foot of building and $7.20 on unimproved property. An identical tax was renewed 2008 with Measure D and again Nov 2012 with Measure G. 1/4/2013 plaintiffs Bypass 93 Properties & American Standard properties represented by David Brilliant, the Borikas attorney, sued to invalidate Measure G ( Contra Costa 1/4/2013 MSC13-00024). The same plaintiffs also sued the San Leandro School District. The result of the litigation against West Contra Cost is that in 2016 West Contra Costa passed Measure T which retained the 7.2 cents per building square foot and eliminated the unimproved property differentiation. Unchallenged Measure T renewed to 2024 and West Contra Costa continues to use a per square foot building tax. (Legislation AB2954 passed Sep 2018 now allows a different unimproved property rate. The plain language is readily understandable as I am not an attorney.)

Dannis, Woliver & Kelley, a noted Law Firm that drafts and administers Parcel taxes, commented on Donlinger, a Jan. 2019 appeals court decision concerning per square foot of building tax: “Last week (Jan 2019), a California appellant court validated a local agency’s special tax calculated on the basis of square footage of improved structures. In Donlinger . . . the statute involved mirrors the statutory authority used by school and community college district to levy parcel taxes, including the requirements that the tax be “uniform” . . . The court concluded: “We do not read the statute to require a uniform effect or outcome, but rather uniform application.””  https://www.dwkesq.com/per-square-foot-parcel-taxes-upheld-by-court-of-appeal/

Mr. Raushenbush states the per square foot of building tax is legally suspect. The per square foot of building school tax is used in Alameda which prevailed in 2011 and 2018 to legal challenges specific to its per square foot tax. There have been no legal challenges to per square foot school taxes in Berkeley and Emeryville. West Contra Costa after litigation uses a per square foot of building tax. Mr. Raushenbush raised the issue of litigation cost for Piedmont schools; all School Districts take litigation costs as seriously as Piedmont, they will not invite litigation and the per square foot tax is now unexceptional. There is no case of a per square foot building school tax being litigated which forced the School District to abandon the per square foot tax.

The groups of Plaintiffs in the various actions against Alameda Schools are large commercial property owners. In Piedmont a litigant would most likely be a homeowner who would then likely suffer a significant social stigma. With a reasonable cap in place, I suggest $4,999, the very few commercial owners that previously paid $5,052 before 2013 would have no incentive to sue. While virtually anything can be contested with a financially willing client, the likelihood of a per square foot of building School tax being challenged by a Piedmont resident is unthinkable.

Mr. Raushenbush states that unimproved lots should be taxed the same as homes “as the Piedmont schools make those parcels valuable.” A few examples of the 100+ unimproved lots currently taxed at our $2,656 flat rate:

Assessor’s Number       Lot Size             Tax Value                    Address

11-855-28                              nine sf                     $729                           558 Crofton

11-878-40                             21 sf                         $1,056                        1110 Portal

11-882-56                            38 sf                         $1,557                         1370 Sunnyhills

48C-7180-23                       200 sf                        $729                           5474 La Salle

There are at least 40 unimproved lots smaller than 1,000 sf. The owner/taxpayers of these low value unbuildable lots will never enjoy the increase in value created by our schools. Unimproved parcels and especially those that can never be improved should not be taxed at the same flat rate as a home.

City/School Liaison Committee to Discuss Tobacco Grant Funding Possibly for a School Resource Officer or Other Purposes.

Monday, April. 22nd – 4:00 – 5 p.m. open to the public in the Piedmont Unified School District Offices, 760 Magnolia Avenue.

Nothing since Borikas has removed the risk that a Piedmont “per square foot” tax under Section 50079 will be ruled invalid. In 2014, SB 1021 was introduced in the California Legislature to amend Section 50079 to expressly authorize a “per square foot” tax—it did not pass. In 2018, the Legislature adopted AB 2954, which amended Section 50079 to allow school districts to tax unimproved property “at a lower rate than improved property,” but did not authorize a “per square foot” tax.  While the reference to a “rate” rather than an “amount,” provides an argument that uniformity refers to “rate” also, there is no ruling on point.

Mr. Schiller notes that the Alameda Superior Court has twice upheld Alameda School District’s later parcel taxes, which impose a “per square foot” taxes. However, the Alameda Superior Court also upheld Measure H, and the lawsuits against Alameda’s later taxes were settled before the First District Court of Appeals, which issued Borikas, ruled on appeal.

Mr. Schiller also relies on Dondlinger v. Los Angeles County Regional Park, No. B284932 (2019), but that case addressed Pub. Resources Code § 5566, a different statute, which expressly states that a park district may establish a “rate” which “is to be applied uniformly.” Further, Dondlinger is a Second District decision; Piedmont is in the First District, which is governed by the Borikas decision.

Until the First District Court of Appeals or the California Supreme Court upholds a “per square foot” school parcel tax, or the Legislature amends Section 50079 to expressly allow such a tax, I do not think it is prudent for PUSD to take the litigation risk of asking Piedmonters to approve such a tax. Litigation could cost $100,00 to $500,000, depending upon motions, trial and appeals. PUSD does not have that to spare. Moreover, to feel secure in spending the tax revenue, PUSD would have to file a validation action, but that simply ensures any litigation starts quickly.

While it is possible that no Piedmont property owner would challenge such a tax, there is no way to remove the risk. (Note that Alameda’s parcel taxes have been challenged three times). PUSD could not spend the tax revenue until any litigation is resolved, as PUSD would have no way to pay back the taxes collected if the tax ultimately were held invalid. Further, because PUSD cannot fund its school budget without a parcel tax, if the tax was challenged, PUSD would have to run another parcel tax election immediately, at additional significant expense. Under Mr. Schiller’s proposal, PUSD (and every Piedmont family with school children) would take this risk so that owners of small homes could pay less than owners of large homes. There are times when accepting litigation risk is necessary. This is not one of them.

I also believe that the School Support Tax must be fair to Piedmont residents. The Piedmont schools benefit every resident. For nearly everyone, our children have gone, are going, or will go to school. Piedmont residents have shared the cost of public education no matter where they are in this cycle. Moreover, the excellence of the Piedmont schools is why Piedmont homes are so valuable. Further, an available and excellent public education is fundamental to civil society, and we all have a civic duty to ensure it. Asking the owner of each taxable parcel to pay the same amount seems fair to me. I include unimproved parcels as the Piedmont schools make those parcels valuable.

A “progressive” tax generally is perceived as taxing wealthy people more by increasing the tax rate at higher levels of wealth or income, and is supported by the notion that those who have more money can afford to pay more tax toward community needs. In claiming his proposed tax is “progressive,” Mr. Schiller equates a building’s “square feet” as equivalent to wealth or income, and assumes that owners with more “square feet” can afford to pay more. That may be true in some cases, but certainly not all.