Are Portland water, sewer bills now "taxes" subject to Measure 5 limits?
Like many people in Portland, I've been brooding about the City Council's unsettling, recurring raids on our already sky-high water and sewer bills for frills like bicycle lanes, neon rose signs, a new headquarters for the Rose Festival, "voter-owned elections," and bailouts for The Oregonian under the guise of buying a disaster "staging" site. (And there's more where that came from.) People on fixed incomes are going to be chased out of their homes, not by property taxes this time (although those aren't exactly low), but instead by fast-increasing utility bills that are funding all manner of City Hall pet projects.
One thing I've thought is that Oregon is going to need some sort of new ballot measure limiting utility bill increases, like the laws that already exist to prevent sharp jumps in property tax bills -- Measures 5, 47, and 50, which have completely changed the state's property tax landscape since they were passed in 1990, 1996, and 1997, respectively.
But on closer inspection, a new ballot measure may not be necessary after all. By subverting water and sewer revenues for purposes far from the provision of water and sewer service, the City Council may very well have already triggered Measures 5, 47, and 50 by turning part or all of the utility bills into "taxes" subject to those strict limitations.
I'll let you be the judge of the validity of this idea. Here is the definition of a "tax" included in the final version of 5-47-50. It's currently contained in Article XI, section 11b of the state constitution. Note especially the last sentence of this excerpt:
(b) A "tax" is any charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property except incurred charges and assessments for local improvements.It seems to me that since Portland water and sewer bill revenues are being used for many purposes that cannot reasonably be called "actual costs of providing" water and sewer "services," at least part of Portlanders' water and sewer bills are now "taxes" subject to the property tax limitations of 5-47-50.
(c) "Incurred charges" include and are specifically limited to those charges by government which can be controlled or avoided by the property owner:
(i) because the charges are based on the quantity of the goods or services used and the owner has direct control over the quantity; or
(ii) because the goods or services are provided only on the specific request of the property owner; or
(iii) because the goods or services are provided by the governmental unit only after the individual property owner has failed to meet routine obligations of ownership and such action is deemed necessary to enforce regulations pertaining to health or safety.
Incurred charges shall not exceed the actual costs of providing the goods or services. [Emphasis added.]
It could be quite interesting if one or more of the moneyed folks behind the old ballot measures is still around and willing to bankroll a lawsuit to see if I'm right about that. Perhaps one of our legislators of the Republican persuasion could ask our illustrious state attorney general for an opinion on the point. Or maybe I'm all wet. Our readers are usually pretty good on topics like this. What do you think?