BILL ANALYSIS                                                                                                                                                                                                    



                                        
                       SENATE LOCAL GOVERNMENT COMMITTEE
                          Senator Tom Torlakson, Chair


          BILL NO:  AB 934                      HEARING:  8/22/01
          AUTHOR:  Hertzberg                    FISCAL:  Yes
          VERSION:  8/21/01                     CONSULTANT:  Swenson
          
                   PROPERTY TAX ASSESSMENT APPEAL PROCEDURES

                           Background and Existing Law  

          Each of California's 58 counties has a constitutionally  
          elected assessor who sets the value of property.  This duty  
          includes the valuation of all residential, business, and  
          agricultural properties, boats, aircraft, and apartment  
          houses.  The values determined by the assessor then become  
          the basis for calculating annual property taxes owed by the  
          property owners.  If a property owner disputes the  
          assessor's valuation, the owner may appeal the assessment  
          to the county board of equalization.

          The California Constitution establishes a board of  
          equalization in each county.  These boards equalize the  
          values of locally assessed property by adjusting individual  
          assessments.  In practice, county boards of equalization  
          review contested assessments to ensure that all property is  
          fairly assessed.

          A county board of supervisors may sit as the county board  
          of equalization, or it may create one or more assessment  
          appeals boards.  In 19 counties, mostly the smaller rural  
          counties, the county board of supervisors sits as county  
          board of equalization.  In the remaining 39 counties, the  
          county supervisors appoint the assessment appeals boards.   
          Assessment appeals board members serve three-year staggered  
          terms and there is no limit on the number of terms a member  
          may serve.  In counties with less than 200,000 people, the  
          county supervisors can appoint anyone believed to possess  
          "competent knowledge of property appraisal and taxation."   
          In larger counties, an appointee must have at least five  
          years of professional experience in California as a public  
          accountant, licensed real estate broker, attorney, or an  
          accredited or certified property appraiser.  New, but not  
          existing, appeals board members must take training (SB  
          1234, Schiff, 1999).

          The assessment appeals board (or a county board of  




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          supervisors sitting as the appeals board) conducts  
          impartial hearings on property assessment disputes between  
          taxpayers and the county assessor.  Based on the evidence  
          presented at these hearings, the board determines the fair  
          market value for the disputed property.  The  
          board-established value appears on the county property tax  
          roll and the courts consider the board's decision to be  
          conclusive.  Because this process is equivalent to a  
          decision by a trial court, appeals courts only review a  
          board's decision for arbitrariness, abuse of discretion, or  
          failure to follow the law.  In other words, a taxpayer may  
          appeal a decision of an assessment appeals board to the  
          courts on issues of law such as denial of due process by  
          the appeals board or use of unlawful appraisal methods, but  
          not on issues of fact, including the actual assessment  
          value itself.  

          One point of view holds that this distinction between fact  
          and law reflects the county board of equalization's  
          constitutional duty, and therefore the courts are precluded  
          from determining assessment values.  Thus, if a taxpayer  
          disagrees with the property assessment value determined by  
          an assessment appeals board, there is no judicial remedy to  
          dispute the amount.

          The Legislature extended the right to sue over assessment  
          values to owners of state-assessed property (SB 2601,  
          Garamendi, 1988).  The constitutionality of this law was  
          challenged but the Sacramento Superior Court upheld the  
          1988 law.  The court concluded that because the State Board  
          of Equalization both determines the value and hears the  
          appeals of state-assessed property, there is no independent  
          review of the determination of value.  Thus a judicial  
          remedy is appropriate.  The decision was never appealed.   
          Many observers note the important distinction from the  
          process for determining and appealing locally assessed  
          property where an independent board hears the appeals. 

          On July 16, 2001, Legislative Counsel issued a written  
          opinion concluding that the February 23, 2001 version of AB  
          934 is unconstitutional because it allows the courts to  
          determine locally assessed property tax values.  In  
          Counsel's view, AB 934 would "impermissibly delegate to  
          trial courts the quasi-judicial fact-finding authority  
          granted to county boards of equalization by Section 16 of  
          Article XIII of the California Constitution." Attorneys  





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          representing private clients responded with a competing  
          opinion saying that there is no provision of the California  
          Constitution limiting the power of the Legislature to  
          provide for trial de novo review of decisions by local  
          boards of equalization.  The Los Angeles County Counsel's  
          Office rebutted that opinion and issued its own opinion  
          agreeing with Legislative Counsel.


                                   Proposed Law  

          Assembly Bill 934 allows property owners and county  
          assessors to use a limited version of a "trial de novo"  
          proceeding when challenging local property tax assessments.  
           

          In a taxpayer's suit seeking the refund of locally assessed  
          property taxes or in a county assessor's suit challenging  
          the findings of the county board of equalization, AB 934  
          requires the court to exercise its independent judgment on  
          the evidence presented by either party.  The bill requires  
          the court to follow the substantial evidence test.  After  
          the court decides the case, county officials must change  
          the property tax roll.
          If the county prevails in a taxpayer's suit seeking a  
          refund, AB 934 requires the taxpayer to reimburse the  
          county's cost of attorneys fees and assessor's staff time  
          incurred in litigating the factual issues.  The court  
          determines the costs, which cannot exceed $100,000 or 20%  
          of the disputed property taxes, whichever is less.  
          Reimbursement for the county's attorneys fees can't exceed  
          the hourly rate charged by the Attorney General.

          AB 934 prohibits the court from awarding attorney fees or  
          assessor staff expenses incurred in litigating legal issues  
          in a suit for refund. 

          AB 934 defines the county as the prevailing party if the  
          court sustains the assessment appeals board decision or if  
          the court determines the disputed value to be higher than a  
          settlement offered by the county but rejected by the  
          taxpayer during the assessment appeals board process.

          AB 934 allows the court to assess a penalty against either  
          party for a frivolous lawsuit.






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          AB 934 requires the California Research Bureau, in  
          consultation with the Department of Finance, to study and  
          report to the Legislature and the Governor by January 1,  
          2006, on the effects of implementing this bill.  The study  
          must include several specified items and the California  
          Research Bureau must convene an advisory group to assist  
          it.  The bill also requires the California Research Bureau  
          to keep any taxpayer information confidential and  
          encourages county officials to cooperate with the Bureau in  
          providing information. 

          AB 934 encourages the Judicial Council to train judges in  
          the valuation and assessment of property and encourages the  
          Council to provide experienced judges to counties. 

          AB 934 encourages the State Board of Equalization to  
          compile a list of professionals experienced in the  
          valuation and assessment of complex properties who are  
          available to serve as assessment appeals board members 

          These provisions automatically terminate on January 1,  
          2008.


                                     Comments  

          1.   Their day in court  .  Because assessment values  
          determine property taxes, which in turn generate local  
          revenues, many property owners believe that assessment  
          appeals boards are too close to counties' fiscal interests  
          to be truly independent.  They say that the county  
          assessment appeals process is inherently biased toward  
          protecting the counties' coffers.  Stories of rogue appeals  
          boards and county supervisors that try to limit or even  
          dismantle appeals boards when they too strongly favor  
          taxpayers are not difficult to find.  Armed with scores of  
          anecdotes to support their case, property owners want to go  
          to court when they think appeals boards have treated them  
          unfairly.  AB 934 gives them their day in court.

          2.   Is it constitutional  ?  Legislative Counsel's written  
          opinion concludes that the February 23, 2001 version of AB  
          934 is unconstitutional.  The August 21, 2001 version of AB  
          934 changes the parameters for going to court, but the  
          constitutionality arguments still apply.  Although other  
          attorneys differ, the courts have generally reached similar  





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          conclusions.  When the Legislature considered adopting  
          trial de novo for state assessees, opponents raised the  
          same concerns, but a trial court upheld the statute's  
          constitutionality.  However, the situation for state  
          assessees is different because the State Board of  
          Equalization both sets the value and sits as the appeals  
          board of state-assessed property.  Thus, there is no  
          independent review of the determination of value.   The  
          Committee may wish to consider whether it is appropriate to  
          pass a bill that Legislative Counsel has declared  
          unconstitutional.

          3.   Unknown cost for counties  .  Most of the assessment  
          appeals cases that go to hearings involve highly valued  
          commercial property.  Because there are a lot of property  
          tax dollars at stake, these cases are most likely to go to  
          court.  Although difficult to precisely measure, by  
          limiting the court to reviewing the evidence presented at  
          the assessment appeals board hearing and requiring  
          taxpayers to cover counties' court costs when the taxpayer  
          loses, AB 934 limits some of the counties' costs.  However,  
          the true cost implications for counties are still unknown.   
          As a result, counties fear that AB 934 will compel them to  
          settle out-of-court because they lack the financial  
          resources to defend the cases in court. Counties will lose  
          property tax revenues not because they over-assess  
          property, but because they settle on lower assessments to  
          avoid litigation costs.

          4.   Identifying the problem  ?  Property owners file  
          thousands of assessment appeals each year.  Most of the  
          volume involves residential property while most of the  
          value involves commercial property.  Although concrete  
          statewide data are not available, recent surveys suggest  
          most appeals are resolved before they get to an assessment  
          appeals board hearing.  The cases that go to a hearing do  
          not represent the broad spectrum of appeals initially  
          filed.  Instead, most of the cases that go to hearing  
          involve either commercial personal property, primarily  
          computer and electronic equipment, or apartment complexes.   
          The disputes often involve depreciation schedules.  Some  
          observers believe that the underlying problem for these  
          property owners lies in the county assessors' practices,  
          not with the appeals boards.  By asking the California  
          Research Bureau to study and report on the issues, AB 934  
          lets the Legislature identify and resolve the problems.





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          5.   Legislative history  .  Bills attempting to extend this  
          so-called trial de novo procedure regarding issues of fact  
          (assessment values) to locally-assessed property failed in  
          1989, 1991, 1995, 1996, 1997, 1998, and in 1999 (SB 1293,  
          Schiff, 1999).   The bills stumbled over local governments'  
          cost concerns and the constitutional issue every time.   
          Although the constitutionality issue remains, AB 934 goes a  
          long way toward limiting and mitigating the counties' cost  
          and revenue concerns.

          6.   Laundry list of other arguments  .  The trial de novo  
          issue has elicited considerable debate and both proponents  
          and opponents have developed long lists of other arguments  
          and rebuttals.  Most of these topics are secondary to the  
          bill's primary issues and rely on undocumented opinions or  
          fears.  Among the concerns is the question of the  
          qualification of assessment appeals board members to judge  
          property valuation disputes as well as the ability of trial  
          judges to do the same.  By encouraging both the Judicial  
          Council and the State Board of Equalization to provide  
          additional training on property assessment and valuation  
          and make available to counties any expertise they possess,  
          AB 934 takes a first step toward addressing this concern.   
          Other topics include:
           The observation that trial de novo is afforded to all of  
            the state's other taxes and to locally assessed property  
            taxes in many other states, as well as the observation  
            that other taxes are not subjectively determined and  
            other states have different property tax systems than  
            California.
           The suggestion that the courts will be overloaded with  
            new cases as well as the observation that the courts are  
            not overwhelmed by cases for other taxes nor did they see  
            a big increase when the Legislature granted trial de novo  
            for state assessees.
           Allowing trial de novo will improve the quality of  
            appeals boards' hearings as well as the opinion that it  
            will minimize the importance of their purpose.

          7.   Sunset provision  .  AB 934 sunsets on January 1, 2008.   
          This sunset provision along with the results of the  
          Research Bureau study will allow the Legislature to  
          consider the effects of AB 934 and then continue, amend, or  
          delete the process as appropriate.






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          8.  Double referral  .  If the Committee passes AB 934 at its  
          August 22 hearing, the Rules Committee has ordered it  
          referred back for a possible referral to the Senate Revenue  
          and Taxation Committee which has asked for the bill.


                                 Assembly Actions  

          Assembly Revenue and Taxation Committee:  7-0
          Assembly Floor:                         64-2
           

                         Support and Opposition  (8/21/)

           Support  :  California Taxpayers' Association, California  
          Chamber of Commerce, California Manufacturers' and  
          Technology Association, American Electronics Association,  
          Association of Imaging Technology and Sound, California  
          Business Properties Association, California Restaurant  
          Association, California Retailers Association, Motion  
          Picture Association of America Inc., National Association  
          of Real Estate Investment Trusts, Silicon Valley  
          Manufacturing Group, State Board of Equalization, Taxation  
          Section of the State Bar of California, Western States  
          Petroleum Association, Agilent Technologies, AMB Property  
          Corporation, AMD, Amgen Inc., Apple Computer, Inc., Boykin  
          Lodging Company, BP, Calpine Corporation, CarrAmerica  
          Realty Corporation, County East Mall, Equity Office  
          Properties, Equity Residential Properties Trust, FelCor  
          Lodging Trust Incorp., Glenborough Realty Trust  
          Incorporated, Hewlett-Packard Company, Hilltop Mall, Intel  
          Corporation, Kilroy Realty Corporation, Lane Westly Inc.,  
          La Salle Hotel Properties, Lockheed Martin Missiles &  
          Space, Macerich Company, Metricom Inc., Nestle USA, New  
          United Motor Manufacturing, Inc., Northridge Mall, Pacific  
          Bell, Pacific View Ventura, Paramount Pictures, Pillsbury  
          Winthrop, Prologis Trust, Property Tax Assistance Co. Inc.,  
          Realty Income Corporation, Rodi Pollock, Rouse Company,  
          Semiconductor Equipment & Materials International,  
          Solectron Corporation, Stoneridge Shopping Center,  
          Sunvalley Shopping Center, United Airlines, Valero Energy  
          Corporation, Verizon Communications, Inc., Westside  
          Pavilion, WorldCom, Xilinx.

           Opposition  :  California Assessors' Association, California  
          Association of Clerks and Election Officials, California  





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          State Association of Counties, League of California Cities,  
          Urban Counties Caucus, California School Employees  
          Association, California Teachers Association, California  
          Federation of Teachers, Community College League of  
          California, Faculty Association of California Community  
          Colleges, California Independent Public Employees  
          Legislative Council, and California Tax Reform Association,  
          Service Employees International Union; Counties of Contra  
          Costa, Glenn, Humboldt, Kern, Napa, Orange, Placer, San  
          Bernardino, Riverside, Sacramento, San Diego, Santa  
          Barbara, Santa Clara; Cities of Alturas, Blythe, Costa  
          Mesa, Chula Vista, La Quinta, Merced, Modesto, Moreno  
          Valley, Riverside, San Bernardino; County Assessors in  
          Alameda, Alpine, Calaveras, Del Norte, El Dorado, Fresno,  
          Glenn, Humboldt, Kern, Lassen, Los Angeles, Marin,  
          Mendocino, Modoc, Napa, Nevada, Placer, Riverside,  
          Sacramento, San Diego, Santa Clara, Santa Cruz, Shasta,  
          Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo; City of  
          Indio, Orange County Citizens Against Lawsuit Abuse,  
          Silicon Valley Citizens Against Lawsuit Abuse, Lake  
          Elsinore Unified School District, Palo Verde Unified School  
          District, Riverside Unified School District, County of  
          Santa Clara Sheriff, City Treasurer for the City of Redondo  
          Beach,  Judge Quentin L. Kopp, Roy M. Avondet CPA.