Is it legal to tax voters for parks and open space without the consent of a two-thirds majority of voters?

A California Supreme Court case over a property tax increase imposed by the Santa Clara County Parks and Open Space Authority may provide the answer, and that answer will show whether one of the criticisms of Napa County's own parks proposal, Measure I, stands up.

Measure I would create a special parks and open space district in Napa County. Special districts traditionally have had the authority to impose fees on property owners to pay for their projects.

The question raised by the Santa Clara case, and some Measure I critics, is which voters get to decide on such assessments, and how many are needed to approve a tax hike.

Opponents of Measure I say a Napa County parks district could raise property taxes, and do so merely with a majority approval of local property owners who would have to mail in their ballots. They say any new assessment should follow the restrictions laid out in the landmark 1978 voter initiative, Proposition 13, and require a two-thirds vote of all county residents.

Supporters of Measure I contend the question is a red herring. They say they do not plan to create a new tax to support the district -- at least in the short term -- and will fund parks instead with a modest amount of money in the county's general fund.

If and when they do need more revenue to improve access to public lands and maintain trails, they say they intend to go to all the voters in the county.

South Bay scenario

That is not the route the Santa Clara parks district took, and that is the source of controversy in Silicon Valley Taxpayers Association v. Santa Clara County Open Space Authority.

The Santa Clara parks authority has won the first two rounds in court, including a 2-1 decision by the 6th District Court of Appeals in 2005. The case will probably be argued before the California Supreme Court sometime in 2007.

The story behind the lawsuit began in 2001, when a cash-strapped parks authority elected to raise $8 million through a special property assessment.

The assessment was levied only on property owners deemed to be beneficiaries of the parks district. Those property owners were asked to mail in ballots voting on the assessment. Using a complex set of rules put in place by Proposition 218, the district measured how much each property owner would benefit from the assessment and gave some votes more or less weight based on how much of the assessment the owners would have to pay.

Almost exactly two-thirds of those who voted approved of the parks tax, according to the Court of Appeals opinion in the case. But, according to the Court of Appeals majority, "when weighted based upon the amount each parcel was to be assessed, the result was 50.9 percent in favor and 49.1 percent opposed."

The Silicon Valley Taxpayer's Association challenged the parks assessment, arguing that parks improvements would benefit everyone in the county, so any money raised needed to be raised through a tax approved by a two-thirds majority. It sued in 2002 along with the Howard Jarvis Taxpayers Association and a few Santa Clara County property owners.

"What it has really come down to at this point is the issue of what is a general benefit and what is a special benefit," said Patrick Congdon, general manager of the parks authority. Congdon believes the assessment was fair, and is frustrated that the money is still tied up years later.

Litigation limbo

In a letter to the Silicon Valley Taxpayers Association, association attorney Tony Tanke painted a dark picture for taxpayers if his side loses. "If local government wins, it will be able to bombard property owners with $20, $30 or $40 assessment taxes for every government program that government believes is underfunded, thereby avoiding voter approval of new taxes at the ballot box," Tanke wrote.

Tanke said he believes the case will be a landmark in tax law, but not everyone agrees.

Margaret Woodbury, a member of the Napa County Counsel's office who represents special utility districts here, said every case requiring interpretation of Proposition 218 is different.

"(Proposition) 218 is a very detailed procedural initiative with a lot of little details," she said. "You can be challenged on a lot of different things if you do it wrong. ... There's no doubt that 218 changed the universe of assessments. Bottom line is you can't do most anything these days besides water and sewer rates without a vote."

In the meantime, Congdon said his parks authority is losing ground while the $8 million is in litigation limbo.

"Without the money we're reaching a point where we can't do what we were created for," he said. "We pay fair market value for properties and that's expensive."