HomeMy WebLinkAboutSupplemental - Proposition 37ACTION FOR BETTER CITIES
1400 KStreet, Suite 307, Saz Wt-, CA 95814
916.656-9272 a Fix 658-8289*w betterdtier.org u Ll
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September 27, 2000 ��
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TO: Mayon, Council Members and City Managers
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N" , N. RE: PROPOSITION 37 Further Curbs on Local Fee Authority. Action for
Rrtnr Macao, snea„r Better Cities Board of Directors OPPOSE Proposition 37.
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Bev Pury, Tn.— There have been many inquiries directed to Action for Better Cities in regard to
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Proposition 37 and Action for Better Cities' position on this November 2000 ballot
MI M.&i L CEO measure. At its July meeting, both Action for Better Cities and the League of
California Cities Board of Directors voted to OPPOSE Proposition 37.
DIRECTORS Proposition 37 is the one measure on the November ballot that has a direct and
F. exclusive impact on city, county and special district authority. The measure is
C°"""`"'`"'""•'h°"""" O°"' designed to overturn the unanimous decision of the California Supreme Court in the
nKn.ra s sour Sinclair Paint case.
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The Sinclair Paint Decision
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In Sinclair Paint the court upheld the constitutionality of a fee imposed on
0. W. manufacturers of lead -containing gasoline and paint products by the Childhood
"'°''°'•'. ."Re Lead Poisoning Act of 1991. The Sinclair Paint Company filed suit against the Act
tuecharging that the fee imposed was actually a tax and therefore was
cr�ile.,e,e.Cd,.. unconstitutionally imposed since it did not receive the two-thirds vote of the
Legislature to raise the tax. Sinclair Paint Company further argued that the lead
Rkfi Tdade prevention fee should be considered a tax since it supported a program that did not
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provide a special benefit to pain[ producers or compensate the government for
special privileges granted to paint manufacturers.
In response to the suit, the court said lead paint fees should properly be considered
a regulatory fee, rather than a tax, and thus could lawfully be enacted by a majority
vote of the Legislature. The court further said that "we see no reason why statutes
or ordinances calling on polluters or producers of contaminating products to help in
mitigation or cleanup efforts should be deemed less `regulatory' in nature than the
1400 K Street, Suite 307 initial permit or licensing programs that allowed them to operate ... [and that] the
Sarna w, CA 95814 case law, ... clearly indicates that the police power is broad enough to include
(916) 6588171 mandatory remedial measures to mitigate past, present, or future adverse impact of
(916) 658-8289% the fee payer's operations, at least where, as here, the measure requires a casual
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connection or nexus between the product and its adverse effect."
"MAKING A DIFFERENCE FOR YOUR COMMUNITY"
Proposition 37
The Proposition does the following:
1. The Proposition amends the state constitution and redefines "regulatory fees" enacted by
local government as "taxes" thereby subjecting these regulatory fees to a two-thirds
legislative vote requirement at the state level and a two-thirds vote of the electorate at
the localleveL
2. It applies to any "compulsory fees" enacted after July 1, 1999 that were enacted to
"monitor, study, or mitigate the societal or economic effects of an activity" or product or
addressing adverse impacts associated with a product or activity to the supermajority
vote requirements that currently apply to state and local taxes.
3. Proposition 37 defines fees that exceed the cost of regulating the activity for which the
fee is charged as taxes. This measure is consistent with current law and therefore
reaffirms, rather than modifies current practice.
Proposition 37 exempts the following from its provisions:
I. Fees and assessments subject to voter approval requirements enacted by Proposition
218 of 1996.
2. .Fees levied on developers.
3. Fees imposed prior to July 1, 1999 and any increases to these fees attributable solely
to increased workload.
4. Damages, penalties, remedial events or other amounts collected in connection to a
specific event (i.e., damages collected from a single entity in response to a toxic
incident attributable to a specific act of negligence).
Fees Affected by Proposition 37
Fee authority at the local level that would be detrimentally affected by Proposition 37 include:
1. Fees charged to alcoholic beverage licensees to mitigate the effects of public
nuisances associated with these businesses.
2. Fees imposed at landfills on waste haulers based upon tonnage to encourage
recycling.
3. Fees on MTBE production to pay for cleanup of polluted groundwater.
4. The state's Oil Spill Prevention Fund would have been eliminated if it had been
enacted before July 1, 1999.
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5. Fees on substandard housing to pay for the cost of inspecting and mitigating the
effects of the substandard housing.
Aetiou for Better Cities Board Opposition
In July of this year, both Action for Better Cities and the League of California Cities Board of
Directors voted to oppose Proposition 37 for the following reasons:
1. Proposition 37 shifts the costs to mitigate the adverse impacts associated with a
product or activity to society as whole instead of the industry responsible for the
adverse impacts.
2. Local government fee authority is already strictly limited law by requiring:
a. Fee authority must not exceed the cost of providing services related to
remediation of the problems caused by a particular product; and
b. A reasonable connection must exist between the social problems remedied by a
fee and the payer of the fee.
c. The fees cannot be applied until there is an identified problem. It cannot be
adopted on the whim of a legislative body. When a problem is identified, the local
jurisdiction needs to act expeditiously and not be blocked or stalled by the
provisions relating local taxation.
3. The restrictions in Proposition 37 most directly affect fees imposed for environmental
pollution and the treatment of health conditions associated with exposure to or the use
of a product. This is a direct quality of life issue in a community and the industries
responsible should shoulder the mitigation costs.
4. Opponents cannot point to any local government fee enacted that violates the
restrictions in current law. Local regulatory fees have been imposed with great
caution and a recognition of the restrictions in law. It is directed at a fee enacted by
the state, not a local government fee.
5. The language in Proposition 37 suffers from the problems inherent in any ballot
measure — it is vague and poorly constructed. It will invite unnecessary and costly
litigation.
6. Proposition 37 is financed by the industries most likely to incur mitigation costs for
the use of their product or activity related to the industry — TOBACCO, ALCOHOL
AND OIL.
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Action by City Councils
Action for Better Cities suggest:
1. holding an informational hearing prior to taking action on the resolution to make the
public aware of this dangerous proposition;
2. taking action in support of the resolution opposing Proposition 37; and
3. contacting Action for Better Cities with the enclosed response form to let us know when
your city council will be taking action.
If you have not taken a position against Proposition 37, a sample resolution has been attached for
you city council to adopt or use to construct a local resolution on the issue. Action for Better
Cities (ABC) is interested in any Mayors, Council Members or other city officials interested in
participating as spokespersons for the NO on Proposition 37 campaign. Please contact Michael
Madrid in the ABC office at (916)658-8272.
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J ACTION FOR BETTER CITIES
1400 K Strmu Suits 307, Su ..w, CA 95814
916658-8272 • fax 658-8289• w bea citin.osg t -n
1400 K Same, Suite 307
S¢crommro, CA 95814
(916) 658-8272
(916) 658-8289f-
m4dndna6etre aws.org
Let us know how you can help: (please clip and return to address above)
❑ Yes, you con use my name publicly as an elected official opposed to
Proposition 37.
Name:
Title:
❑ 1 can help by meeting with my editorial board and discussing the
damaging effects this proposition will have on local government.
❑ 1 can help by appearing at press conferences or serving as a surrogate
speaker in the media.
"MAKING A DIFFERENCE FOR YOUR COMMUNITY"
How You Can Help Stop the "Polluter Protectlon Act"
OFFICERS
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Proposition 37, "The Polluter Protection Act", is a dangerous measure that will
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appear on the November ballot. Proposition 37 will have a direct impact on cities
as it was designed to overturn city rights and citizen protections outlined in the
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Sinclair Paint decision.
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The most troubling aspect for local governments is the provision that amends
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the state constitution and redefines "regulatory fees" enacted by local
governments as"taxei' thereby subjecting these regulatory fees to a two-thirds
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vote requirement at the state level and a two-thirds vote of the electorate at the
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Fees that could be affected Include:
1. Fees charged to alcoholic beverage licensees to mitigate the effects of
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public nuisances associated with these businesses.
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2. Fees imposed at landfills on waste haulers based upon tonnage to
encourage recycling.
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3. Fees on MTBE production to pay for cleanup of polluted groundwater.
4. Fees on substandard housing to pay for the cost of inspecting and
mitigating the effects of the substandard housing.
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For all of these reasons it is imperative that you - as a leader in your city - assist
us in stopping the harmful effects of polluters and others by making it easier for
them to pass on their costs to taxpayers.
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For more information, visit the NO on Prop. 37 website,
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www.polluterprotection.com, or contact Doug Linney at The Next Generation, 1904
Poli" f, R""'aP.A
Franklin St., Suite 909, Oakland, CA 94612; 510-444-4710.
1400 K Same, Suite 307
S¢crommro, CA 95814
(916) 658-8272
(916) 658-8289f-
m4dndna6etre aws.org
Let us know how you can help: (please clip and return to address above)
❑ Yes, you con use my name publicly as an elected official opposed to
Proposition 37.
Name:
Title:
❑ 1 can help by meeting with my editorial board and discussing the
damaging effects this proposition will have on local government.
❑ 1 can help by appearing at press conferences or serving as a surrogate
speaker in the media.
"MAKING A DIFFERENCE FOR YOUR COMMUNITY"
PROPOSED CITY OR COUNTY RESOLUTION OPPOSING PROPOSITION 37
WHEREAS, Proposition 37, the "Two -Thirds Vote Preservation Act of 2000", which has been
placed on the November 2000 ballot as an initiative, seeks to overturn the California Supreme
Court's "Sinclair Paint Case" decision; and
WHEREAS, in the Sinclair decision, the California Supreme Court unanimously declared that a
fee on manufacturers of lead based paint contributing to environmental lead contamination and
used to pay for a State -program that evaluates, screens and provides medically necessary
follow-up services for children deemed potential victims of lead poisoning, is a valid regulatory
fee and not a tax; and
WHEREAS, many state and local government fees imposed on businesses have been found to
be proper and legitimate means with which to ensure that persons responsible pay their fair
share of the cost of mitigating the impacts of their businesses; and
WHEREAS, Proposition 37 would transform these proper state and local fees into taxes and
thus subject future enactment to a two-thirds vote of the Legislature or local government
electorate, as appropriate, thus making it more difficult to protect communities by raising
revenue to mitigate the societal and economic impacts of these businesses; and
WHEREAS, future enactment of the following types of fees now imposed by the state or local
government, if not a part of an overall regulatory program, would become taxes under
Proposition 37:
Fees charged to alcoholic beverage licensees to mitigate the effects of public nuisances
associated with these businesses;
Fees imposed at landfills on waste haulers based upon tonnage to encourage recycling;
Fees on MTBE production to pay for cleanup of polluted groundwater;
The state's Oil Spill Prevention Fund (if it had been enacted after July 1, 1999);
Fees on substandard housing to pay for the cost of inspecting and mitigating the effects
of the substandard housing;
Downtown Business Improvement District assessments; and
WHEREAS, Proposition 37 will also result in costly litigation to determine its ultimate
application; and
WHEREAS, Proposition 37 is supported by the oil, tobacco and alcohol industry and other
business groups who currently pay fees to mitigate the societal impacts of their products and
activity; and
WHEREAS, existing law already clearly distinguishes between fees and taxes imposed by local
governments and requires different procedures to be used for adopting each; and
WHEREAS, Proposition 37 will interfere with the ability of [name of city or countvl to legitimately
impose fees to mitigate the specific and particular local impacts of businesses on the community
and instead, shift the burden to taxpayers; now, therefore be it
RESOLVED, that the City/County of opposes Proposition 37