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Sonoma County's November transit ballot measures to raise $780 million in new sales taxes to widen Highway 101 and add rail service in the county have garnered support from a number of groups with political and environmental pedigrees--though the influential Washington, D.C.-based Environmental Defense Fund weighed in last week against the proposed freeway expansion.

But even with the blessings of such organizations as the Greenbelt Alliance, Sonoma County Conservation Action, the League of Women Voters, and the Sonoma County Alliance, there might be one little problem: The measures might be illegal.

Californians decided in the late 1970s, via state Propositions 13 and 62, that any new tax earmarked for a special purpose requires approval of two thirds of the voters. Since it is nigh impossible to get 66.6 percent of the population to agree on anything, much less increased taxes, Sonoma County followed in the footsteps of Santa Clara County in trying to solve gridlock. In 1996, Santa Clara County put an ingenious two-parter on the ballot: One measure increased taxes; the other was an advisory measure on how to spend the money. Since the new tax wasn't pegged to a specific use, it needed only 50.1 percent to pass. The measure squeaked through with 51 percent, and the county was promptly sued.

"It's illegal," says Jonathan Coupal of the two-measure method. Coupal is director of legal affairs with the Howard Jarvis Taxpayers Association, which first brought suit against Santa Clara County's transportation measures. "One measure says it's for the general fund, but the body politic says it will only be spent on transportation. It is a special tax for transportation purposes and it needs a two-thirds vote."

Sonoma County's Measure B would increase the sales tax a half cent for 20 years. Measure C would recommend that the Board of Supervisors spend $458 million to widen Highway 101 to six lanes from Windsor to Marin County, $122 million on a rail system between the two counties, $94 million for local road improvements, $62 million for bike paths, and $44 million for administration and other projects.

Since Measure C is not binding, the supes could decide to spend the money on whatever they want. However, says Sonoma County Counsel Jim Botz, "it's difficult for the Board of Supervisors to go against an advisory measure."

"You can't think of the Board of Supervisors in a vacuum. They represent the constituent," agrees Ann DuBay, manager of the Yes on Measures B and C campaign group, Citizens for Balanced Transportation. "We are going to make sure that every supervisorial candidate abides by the plans set out in the advisory measure."

In June, Santa Clara's measures were upheld by the 6th District Court of Appeals, which would seem like very good news for Sonoma County. But in two years, the noose around new taxes has gotten even tighter. In 1996, Californians approved Proposition 218, which, says Coupal, defined the term "special tax" to include a tax for specific purposes placed into a general fund. Prop. 218 passed after Santa Clara County's measures were approved, but could put a big damper on Sonoma County's plans.

"Laundering money through a general fund after Prop. 218 is no longer allowed," Coupal contends.

"We don't think 218 changes anything in the context of the two measures," counters Botz.

Sonoma County's measures are not circumventing the special tax law, DuBay says: "Proposition 62 was a very conceptual measure. When it comes down to what happens in their communities with failing infrastructure and lack of alternative transportation, people say, 'Wait a minute, if the majority in the community feel strongly, why should one third of our voters stop it?'"

If the new tax does pass with a simple majority, the celebration may be short-lived: "My suspicion is that it won't even get a majority because the voters can smell a sham a mile away," Coupal says. "If it does pass, I think there's a high likelihood of a lawsuit."

Sonoma County's measures may become a test case before the Cal-ifornia Supreme Court, since opponents say that Prop. 218 gives them additional clout to take it beyond the state appeals court. There could be a bright side to a lawsuit, however: While Santa Clara County waited two years for its case to proceed through the courts, the new tax brought an estimated $150 million into the coffers to spend on the advisory measure's transit wish list.

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From the September 17-23, 1998 issue of the Sonoma County Independent.

© Metro Publishing Inc.

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