Photograph by Robert Scheer
Bob Binkley surveys his Sara Hills Drive property, which is a Measure G test case, on the ballot as Measure K.
By Sarah Lombardo
In addition to the many state propositions on the ballot next week, Saratogans will have two city measures on which to vote, one born of controversy and the other a controversy in itself.
Measure K, the Bob Binkley lot-line adjustment, and Measure L, the utility-users' tax, will be on the Saratoga ballot.
Measure K is the first application of Measure G, Saratoga's growth-control initiative passed in March. Although Measure G caused quite a stir, its first test case has not.
"We haven't heard anything negative," said Bob Binkley, the owner of the property involved.
Binkley said that, on the contrary, most of the response he has received about his case has been positive and supportive.
Under Measure G, any change in the general plan that increases housing density or land-use intensity or that changes land zoning categories must be put to public vote. Binkley wants to move the lot line between a nine-acre parcel of land and a half-acre parcel so that the smaller parcel will be doubled in size and, thus, be more marketable. Currently, the two parcels are in different zoning categories, so one parcel designated "hillside conservation single family" must be changed to "very low density single family" in order for the lot-line adjustment to be made.
That change is what makes Binkley's case a Measure G case, according to James Walgren, Saratoga's associate planner for zoning and land-use development.
"Normally, a lot-line adjustment is a very simple process," Walgren said, "but in this case we had to change zoning boundaries to his new lot boundaries."
Walgren said that with or without the lot-line adjustment, there would still exist a buildable lot on the Binkley property; all the adjustment would do is make a small lot bigger.
Binkley said he and his family are the victims of a technicality.
"[Measure G] should not apply because we were caught in a technicality," he said. "It's all residential. [The lot-line adjustment] is not going to change the number of homes being built or create commercial or create any situation that was meant to be affected by Measure G."
Walgren said Binkley's argument that Measure G shouldn't apply to him was valid, but, "literally, if you read it, it does," he said.
Measure G supporters have said they never meant for a case like Binkley's, relatively insignificant and unopposed by neighbors, to be put to a vote and have spoken harshly about the City Council's decision to apply Measure G to Binkley's case.
But councilmembers argue that they are legally obligated to follow "the letter of the law," not the intent of it.
For his part, Binkley said he is upset that he had to take his plan to the voters --it received Planning Commission approval the day after Measure G passed--but he doesn't seem to hold any grudge against the council.
"They made the decision, but they were also following what the city attorney advised them to do," he said.
Binkley said he is optimistic that Measure K will pass, but he is worried about people who may not know anything about his case and vote no because they don't understand it. In his ballot argument in favor of the measure, Binkley made sure to mention that passage of the measure would not increase the number of building sites or the density of the existing parcels.
No one submitted an argument against Measure K.
Measure L, on the other hand, has received plenty of opposition.
The measure was put on the ballot by the City Council to let voters decide on the continuance of the utility-users' tax, a 3.5 percent tax on residents' Pacific Gas & Electric bills, in response to the threat of a lawsuit from the Pacific Legal Foundation.
The PLF notified the city in January that the tax was illegal under Proposition 62 because it had never been put to a public vote, and they threatened to sue the city if they continued to collect the tax.
The tax was first adopted in 1985 by a vote of the City Council. The funds generated by the tax were to go into the city's general funds to help with the city's street-maintenance program. The tax was scheduled to expire after five years, but the council voted to extend the tax's sunset clause in 1990 and again in 1995.
Prop. 62 was enacted in 1986 and requires a majority public vote for general taxes and a two-thirds vote for special taxes. Under this proposition, the PLF contends that the extension of the utility-users' tax in 1990 and 1995 is unconstitutional.
City officials agreed to put the tax on the ballot to a public vote, but refused to stop collecting it because they maintain that the tax is legal. They say Prop. 62 does not apply to the utility-users' tax because it was adopted before Prop. 62.
According to the city's attorney, Michael Riback, no court has ruled that the extension of a tax is illegal under Prop. 62. Saratoga Mayor Paul Jacobs said that as far as the city is concerned, the tax is legal.
"No court has ever ruled that the Saratoga utility-users' tax is an illegal tax--period," he said.
Thomas Fil, Saratoga's finance director, said the utility-users' tax itself brings about $808,000 a year into the city. But, he said, state and county programs match utility-users' tax money almost dollar for dollar, bringing in another $691,000 a year into the city.
According to Fil, the utility-users' tax is the only tax that stays 100 percent in Saratoga. Fil said that because of state and federal programs, much of the city's money depends on retaining this tax, and that without the utility-users' tax, the city's economic outlook would take a backward turn.
"Without this tax, we'd probably go back ten years," he said.
Fil said the money generated by the utility-users' tax and the matching funds that come with it amounts to about 20 percent of the city's budget, and that drastic cuts in personnel and all areas of city services would have to be made within the city if it fails.
City Manager Harry Peacock said the city will be in trouble if the tax fails. "We know we can't survive without this tax," he said.
But PLF attorney Deborah La-Fetra said the city will be in trouble if the tax does pass.
"If Saratoga tries to pass this tax based on that ballot, they will have serious problems," LaFetra said.
According to LaFetra, the ballot wording on the measure doesn't really give voters the chance to decide on the existence of the tax. She said the wording only lets voters decide if the tax should be continued for six months after the sunset clause is due to expire, from June 2000 to January 2001.
In a letter to the City Council dated Oct. 10, LaFetra wrote: "Measure L, which only extends the sunset provision of the tax measure, is insufficient to determine whether or not the voters would approve the tax. The impartial analysis by the city attorney says the effect of the measure is that, if approved, the tax will be extended for six months. ... Frankly, we are disappointed with the Saratoga City Council's attempted end run around Proposition 62. The people were promised a vote."
Resident Lou Thorpe said he thinks the ballot wording is confusing and will lead to an inaccurate vote.
"The confusion and the challenge that I have is that the way that it is worded now, it is going to confuse the voters and this is going to result in a distorted outcome," Thorpe said. "I don't know if it was [done] intentionally to confuse voters, or if that's just how it came out."
Riback, who wrote the measure, said he intended for Measure L to give the people a vote on the tax, and never thought the ballot would be interpreted in such a way as to appear to only be a vote on the extension of the tax.
"The attempt was simply to ask the voters if they wanted to continue the tax, that is the issue in its simplest terms," he said. "Frankly, we just didn't recognize, or maybe I should say I didn't recognize, the unintended consequence."
Riback said he drafted the ballot the way he did because he had to make sure that the ballot's language did not imply that the tax was illegal because the city denies it is illegal. "I wanted to make sure that I was reflecting what the City Council wanted, and I was also concerned about the legal issues," he said.
Riback said he consulted with councilmembers and Peacock to make sure the ballot wording was in accordance with their views, but that they were not in any other way involved in the drafting of the measure. Riback also said that when the City Council voted to put the measure on the ballot, the public had the opportunity to address the council regarding the measure's wording.
Jacobs said that if voters reject the utility-users' tax, it will be repealed as soon as legally possible. He said the whole controversy over the wording of the ballot is unfortunate because it takes attention away from what he thinks is the main issue.
"My position is very clear. Let's deal with the real issue and that is are you getting value for your money," he said.
Peacock said the allegation that the City Council had no intention of repealing the tax if it failed was absurd, especially in light of the fact that they had publicly announced a no vote would bring the repeal of the tax.
"Heck, if [councilmembers] did anything else, they'd all get recalled, and probably lose handily," he said.
"If Measure L does not pass, they will repeal the tax and it will go away," Peacock said.
This article appeared in the Saratoga News, October 30, 1996.
©1996 Metro Publishing, Inc. All rights reserved