Fire fee looks a lot like a tax

Later this year - unless the courts intervene or the Legislature changes its collective mind - the owners of nearly a million pieces of rural property will receive bills from the state for a one-time fee to underwrite state firefighting services - $70 for each parcel of land.

Or is it a tax? It will certainly look like a tax because it will be part of the property tax bills that county tax collectors send to property owners. And it's fundamentally identical to the "parcel taxes" that school districts and local governments impose with voter permission.

But were it a tax, the Legislature could not have enacted it as it did, with just a simple majority vote of both houses. And therein lies a tale.

As the 2003 legislative session churned toward adjournment last September, Democratic leaders stripped a dormant bill of its provisions and used the shell for an entirely new measure, imposing tens of millions of dollars in new fees on those who hunt, fish, use pesticides, operate dams, build power plants, exercise water rights or just own property.

The much-revised measure was whipped through the Legislature in just two days, with Democrats voting for it and Republicans opposed, and then-Gov. Gray Davis signed it on Oct. 8, one day after voters recalled him from office.

The firefighting fee was to be imposed only on privately owned, non-tax exempt property within the 31 million acres of land for which the Department of Forestry and Fire Protection bears primary responsibility. It was estimated that about 1.5 million parcels would be affected, thus raising $52.5 million a year for two years at $35 per year on each parcel.

Although the firefighting fee was to be levied for two years, by the time the Department of Forestry and Fire Protection completed all of the required procedures - including promulgation of emergency regulations and hiring private firms to do complex mapping and calculations - to impose it, it was too late to be collected for 2003-04, so it was decided to hit property owners once for $70. And when the department completed its calculations, it also found that only about 900,000 parcels would be assessed and, accordingly, the fee's total revenues were downgraded from over $100 million to $60-70 million.

But that assumes that the parcel fee actually will be levied. The California Farm Bureau is challenging it and a new fee on those who hold water rights in a lawsuit. Calling it a fee does not make it so, the Farm Bureau suit says, arguing in one brief that "the levy at issue has every characteristic of a real property tax."

If the courts rule that the fee is, indeed, a tax, it would run afoul of the state constitution's requirement that taxes be imposed only with two-thirds legislative votes, but even if it's ruled to be a fee, it still must pass muster with another constitutional requirement that a fee fairly reflect the services that it covers.

The latter provision was adopted by voters to prevent state and local officials from arbitrarily imposing fees to cover budget shortfalls - such as the $300 per car "smog impact fee" that was levied just on cars being brought into the state for the first time in the early 1990s.

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