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This page contains a single entry from the blog posted on May 27, 2010 8:28 AM. The previous post in this blog was Is Sam Adams buying off The Oregonian?. The next post in this blog is Another "urban renewal" scheme shot down. Many more can be found on the main index page or by looking through the archives.

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Thursday, May 27, 2010

Is Portland's new leaf removal "fee" a Measure 5 "tax"?

Yesterday, we posted something that to us is really important. We suggested that the City of Portland's wild spending of water and sewer bill revenues on programs not directly related to water and sewer services rendered the sewer and water charges "taxes," subject to the state constitutional limits of Measure 5. If you haven't seen that one, you read should head over to it and check it out. The comments do not dissuade us from our view that there's a serious, serious issue there.

Today we'd like to pile just one, small additional point on top of that: The city's proposed leaf removal fee for neighborhoods that have traditionally received that service for free is also unconstitutional, unless it comes out of other property taxes under Measure 5. Unless homeowners in the affected neighborhoods are given the option to pick up the leaves themselves and avoid the charge, it appears that the leaf "fee" is really a "tax" on the property owner, and thus subject to Measure 5. And I'm not hearing anything from the City Council about letting people pick up the leaves themselves.

Comments (19)

I agree with you about the leaf fee also. If it is assessed against the owner of the property simply because the person owns the property, and if the owner can't avoid the fee by refusing the service (or cutting down all of the owner's trees and leafy shrubs), then it's a property tax that does not qualify as "incurred charges."

Since when has the state ever stopped in to interfere with what Portland City Hall wants to do? Don't be surprised if your shining a light on this suddenly prompts the legislature to enact some sort of exemption for Great Leader.

Jack,
I really appreciate these posts, but why not skip the leaves and go to the holy grail: When the city council orders us to clear the snow and ice off the public sidewalks outside where we live. You talk unconstitutional? What are the legalities of forced slave labor?
Do I get to set a fee for what I charge them for doing the sidewalks? Maybe collect a toll from passersby to cover my time? And why should they stop there? Since the city does such a lousy job of snow removal, why not order the citizens to clear the roads in front of their houses too?

17.28.025 Property Owner Responsible for Snow and Ice on Sidewalks.
(Added by Ordinance No. 176585, effective July 5, 2002.)

A. The owner(s) and/or occupant(s) of land adjacent to any street in the City shall be responsible for snow and ice removal from sidewalks abutting or immediately adjacent to such land, notwithstanding any time limitations.

B. Property owner(s) and/or occupant(s) shall be liable for any and all damages to any person who is injured or otherwise suffers damage resulting from failure to remove snow and/or ice accumulations.

C. Property owner(s) and/or occupant(s) shall be liable to the City of Portland for any amounts paid or incurred consequent from claims, judgment or settlement, and for all reasonable investigation costs and attorney fees, resulting from the responsible property owner's or occupant's failure to remove snow and ice accumulations from such sidewalks as imposed by this Code.

Even city council members do not understand any of the details of the leaf pickup assessment. That by itself clearly demonstrates that this assessment was a last minute, back door surprise.

For example, one city commissioner informed our neighborhood association last night that they understand the new assessment explicitly to allow property owners to sweep leaves in the street for pickup. This would be a radical departure from the city's previous admonitions not to sweep leaves into the street.

Many terms of the assessment are wide open and likely subject to the discretion of the transportation commissioner who is also the mayor.

For example, the ordinance levies the assessment on each "commercial establishment" and each "residential establishment."

Nowhere in the city code is "residential establishment" defined. Thus, it is unclear whether the assessment is levied against each property or each unit.

For a myriad of other issues, the city code mentions "residential dwelling units." In these cases whatever rule is being discussed would apply equally to an apartment unit, condo unit, or single-family residential house.

The city could run into some fee-that-is-really-a-tax issues if the leaf pickup assessments are levied on a per-unit basis. Imagine a treeless 10-unit apartment complex sitting in one of the 24 designated leaf pickup areas. That unit would be assessed $300 in total, while the house next door would be assessed only $30. In this case, the property with the bigger assessment gets less "service."

In addition, the assessment is part of the the city's transportation fee schedule. However, I understand that the assessment will appear on the water/sewer bill. What is not clear is the consequence for not paying the assessment. Can the city turn off my water if I do not pay the $30.?

Does our City Auditor have any real role other than to rubber stamp every debt-ridden/taxing scam that comes down the pike?

How much financial malfeasance does there need to be before the Auditor starts doing her job?

Ralph, the same goes for the City Attorney-when will that office start doing its job?

As far as I can tell, except for Sizer and we know what happened to her, no one but Saltzman has done any more grumbling, and now he's gone silent.

It's getting pretty clear that PDX is run like one big private community and as long as residents do as they're told and pay what they're told, they're allowed to be here. If they don't like it, they can leave for the surburbs or the much despised Clark County.

As I asked at another posting: Any of you Progressive lawyers willing to take on some pro-bono work?

"prompts the legislature to enact some sort of exemption for Great Leader"

Now without precedence - Randy and John Minnis got a special dispensation thru to be able to get BOTH PFDR and PERS income. The only two guys (I am not even going to go into the realtive moral worth of either) in the state to do so.

Eric -- What's the rationale for your neighborhood getting leaf service at all? I live in Maplewood (a.k.a. "neighborhood with lots of 80-year old maple trees") and we don't and never have received leaf service from the City. I either bag up about 15 bags at $2 a pop (now going to $3, right?), or I borrow a pick-up and take three loads to the leaf depot ($7/each).

I'd gladly pay $30 to have the city pick up my leaves, even if it is an illegal tax.

The dollar amount of the fee is less of an issue than is the abuse of process.

Leaf removal fees are a contentious issue in which many reasonable people disagree. It is a topic that demands extensive input from city stakeholders. Every time such fees have been proposed in the past, the public has had a vigorous and thoughtful discussion of the proposed fees and who would pay them.

What is most disturbing is that the affected neighborhood associations have had no notice whatsoever of the proposed new fees. Everyone in Laurelhurst benefits from leaf removal and everyone would be affected by the additional costs. Even so, our neighborhood association had no knowledge of the proposed fees until after discussion was cut off.

The new charges were buried on page 16 of a 24 page document that was not made available to the public until only a few days before the first reading. This did not provide sufficient time for interested parties to learn of--let alone comment on--the proposed new fees. In fact, the first news of the new fees appeared in the Oregonian after the only opportunity for public comment had passed.

If the city wants to levy a special assessment on specific areas of the city, it should form a Local Improvement District and allow the affected properties to participate in the process.

I regularly pick up all my leaves in the Fall. My neighbors do not. I do not want to subsidize their laziness by paying for something I do myself...

In some parts of the city, the city currently does NOT pick up leaves but charges if you bring your leaves to one of their drop off centers. I live in one of those areas. My property taxes have been subsiding some other city residents for decades. I think there are far bigger issues to be concerned with.

Raking my leaves into the street, even if I have to pay $15 or $30 dollars, will probably be cheaper than the 2-5 loads of leaves to the Leaf Depots (where they can't decide if a Suzuki Samurai should be charged the SUV rate, despite an obviously-tiny cargo area). Plus, it will save me lots of time bagging the leaves and driving to the depots.

That said, while this isn't the most important thing the City is/isn't doing, the lack of process is disturbing, and the constant nickel and diming does appear to be an end run around the various tax measures.

If the city wants to stop picking up leaves entirely, fine -- let the politicians live with the consequences of that among the affected neighborhoods. But if they're going to charge, and not let people opt out, it's a Measure 5 tax.

I live in a neighborhood which has lots of trees.

The city has been instrumental in creating this condition.

I also live on a street which, long ago, was a streetcar street and consequently, my house, and three of my neighbors, all on the same side of the street, have no off-street parking. Ergo, we must park our vehicles in the street. This means that in order for the city to clean the leaves (and other debris) from the street (which I might note, is THEIR responsibility) they do not do it because their are vehicles parked in the way.

When I requested that when the PDoT folks sweep my street, they inform us so that we can move the vehicles out of the way. They flatly refused, with the excuse that if they told people when the streetsweeper would be in front of their house, then folks would sweep all their debris into the street (and probably their garbage, too). So...despite it being the city's job to sweep the street, it does not do so in front of my house.

If I am charged for leaf removal, I'll scream bloody murder, because I'll be paying for a service the city does NOT provide me or my immediate neighbors.

TAXATION WITHOUT PROVISION OF PROMISED SERVICE....BALD ROBBERY.

Jack, the City has already stopped picking up leaves entirely in most of the City. Actually, they never started. This "tree canopy" argument may be true in the aggregate, but it's not true in the specific. The "consequences" in the affected neighborhoods are that we pick up the leaves ourselves, and pay for the disposal.

This is one illegal tax that I would love to have the privilege of paying.

Just as trees can produce a positive community benefit not just to the property owner, but to all who live around them - shade, cooling, wind protection, slowdown of water runoff, etc. - they can also produce a negative impact on the community around them - branches fall and damage property, leaves clog storm sewers and make streets slick and unsafe, etc. I have no problem with government taking on the task of caring for the public right-of-way for issues brought on by trees, and charging those in the nearby area for it, so long as it's reasonably fair. I've paid for streetlights in this fashion when I lived in a different taxing jurisdiction - you pay even if there isn't an overhead light right in front of your home, because you still benefit from other lights nearby.

But like others here, I do take issue with the process used. It might be illegal, there was little notification, and if assessed as proposed ("residential unit") it sounds like it's probably the most unfair system that we could possibly have.

Note to CoP: Slow it down, do it right, and take the public's input seriously, and you'll likely get a much better acceptance and outcome. Don't shove this down our throats.

Oh, and don't bill for it through our water bills. That's bound to be a loser right out of the starting gate.

Here is a link to a similar case for your reference.
Seems other Cities have tried this and been challenged.
Hope we can follow the lead and stop this for good.

If it qualifies as an ad valorem tax, any ten citizens can appeal this, so that burden should not be too high.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=S52624&invol=1
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=S52624&invol=1


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