It's official, expanding the convention center through the use of a special tax on hotel guests is not going to happen. Yesterday, August 27, city councilmembers decided against appealing a court ruling that deemed the so-called transient occupancy tax unconstitutional.
That ruling was handed down on August 2. Judges on the appellate court cited state and local laws prohibiting local governments from levying any special tax without a public vote.
"We further conclude that the election was invalid under the San Diego City Charter because City Charter section 76.1 requires the approval of two-thirds of the 'qualified electors'...those persons who are registered to vote in general state elections under state law."
The decision could have widespread effects for a number of other special assessments, namely property-based improvement districts.
One day before the judges issued their ruling, Cory Briggs — one of the attorneys in the convention-center case and a big legal thorn in the city's side — filed a complaint against the city over the Downtown Property and Business Improvement District and the city's nearly 60 maintenance assessment districts.
"This lawsuit challenges Defendants' authorization of a variety of tax, levies and collections — euphemistically labeled 'assessments' by [city officials] in order to avoid public scrutiny — without first obtaining the requisite approval of the voters of the City of San Diego."
The complaint uses many of the same arguments from judges in the convention-center case.
"Fundamentally, this is a lawsuit about voters' rights. Propositions 13, 218, and 26 are voter-approved initiatives that amend the California Constitution and aimed at the right to vote on measures designed to increase government revenues. Proposition 218, which is central to this dispute, is officially known as the 'Right to Vote on Taxes Act.' The statement of purpose for Proposition 218 included the following language: 'Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases.'
"Registered voters have interests in government revenue-generating schemes even if they are not the ones directly paying the tax, assessment, charge or fee. For example, the City of San Diego electorate has defeated attempts to increase the local transient occupancy tax even though the tax is imposed only on hotel guests and not on voters. The concern of those voting against the increase included but was not limited to issues such as all taxes being passed on to consumers, other tourism-related businesses being affected by an increased cost for tourist accommodations, and how the money would be used."
Over the years, city officials have relied on property-based assessments on property owners as a convenient way to pay for neighborhood services — convenient because only property owners in the designated area are allowed to vote and their votes are weighted according to the size of the property. That means a small number of large property owners can tilt the election in their favor.
The city has had a difficult time defending the districts in court.
In 2012, a superior court judge sided with a group of residents in Golden Hill and South Park who challenged the legality of their assessment district. Residents questioned not only the voting process but the attempt by the city to get around state and city laws requiring a distinction be made between general and special benefits.
City officials and attorneys have yet to find a way around those questions. They will soon be forced to do so again or be forced to invalidate the 55 maintenance assessment districts and reimburse property owners for this year's assessment.