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THE CAL FIRE FEE - Its an Illegal Tax
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THE CAL FIRE FEE - Its an Illegal Tax
The Forest Fire Prevention Act

Over 800,000 rural homeowners in California are soon to receive a bill from Governor Brown for a fee that provides no service at all. If you wish to appeal or protest your bill, go to this website:
 
 

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Courtesy of Terry Freitas - Copyright - All Rights Reserved

Click on this link to go to the CAL FIRE FEE WEBSITE

When you appeal, you may wish to present this legal argument drawn up by Cynthia Angell, an Attorney in Trinity County that specializes in Real Estate Law. We are all very grateful for this guidance.
 
OBJECTION TO ABX1 29 CAL FIRE FEE BASED UPON CONSTITUTIONALITY
 
It is my belief that Assembly Bill ABX1 29 is unconstitutional based upon, but not limited to, the following:
 
1. This assessment confers general benefits on the community as awhole, thus des not meet the constitutional requirement that revenues from fees and charges incident to property ownership cannot exceed the proportional cost of the service to the parcel. No fee or charge may be imposed for general services including fire services when the service is available to the public at large in substantially the same manner as it is to property owners. (Cal. Const., Art XIII, Sec. 6 (b))
 
2. The method used by the Legislature to set the fee was flawed, the fire protection fee began with an estimate of desired revenue with the $150.00 assessment designed to realize the 50 million dollars in state general fund savings, rather than the benefits driven approach required for an adequate proportionality analysis.
 
          Therefore I believe that this is in fact a special tax not a special assessment because of the nature of the benefit it provides, and that as such it must be approved by a 2/3 majority of voters as required by Proposition 218. It is my reasonable belief that this is an unconstitutional fee whose revenue would be improperly used to fund general government services.

How to Appeal

The law that created the Fire Fee also established the appeals process;

Time is Critical!

  • The Fire Fee bill must be paid and/or appealed within thirty days of the billing date (which is when the bill was sent, not when you received it). Late petitions will not be considered. This means that if a petition is not filed within the thirty days, the bill becomes due at the end of the period. (14 CCR Chapter 13, Section 1665.5(a)(4))

The Petition

  • The petition must be in writing. In the near future, CALFIRE will provide a form that can be used to appeal, which is now available. It can be downloaded [HERE].

The Process

  • The law requires that the petition be mailed to the California Department of Forestry’s Fire Prevention Fee Service Center;
    P.O. Box 2254, Suisun City, CA 94585
  • Each petition is required to include:
    1) The specific grounds upon which the appeal is being contested (see next bullet point);
    2) Evidence supporting the claims made in the appeal.

Grounds for Appeal
Grounds for appeal can include (but are not limited to) any of the following:

  • The structure is commercial (not residential). The regulation developed by the Forestry Board defines “dwelling unit” as including “provisions for living, sleeping, eating, cooking, and sanitation.” (14 CCR Chapter 13, Section 1665.2)
  • I was not the owner in July 2011. The property owner is defined as the individual, company, corporation, or other entity that was the owner of record of the property on July 1 [2011]. (14 CCR Chapter 13, Section 1665.2)
  • The structure is not in an SRA. Be sure to double-check the maps and make sure that your home is within an SRA. If it’s not, the fee doesn’t apply to you. (14 CCR Chapter 13, Section 1665.5 (a)(3))
  • This bill is an unconstitutional tax. The California Constitution requires that new taxes be approved by 2/3rds of the membership of both houses of the Legislature. Because many homeowners will not see a direct benefit from their payment of the bill, this charge is a tax (and not having been properly approved by the Legislature) is illegal.


Once You File

Once CALFIRE has received your petition, they will have sixty days to review the petition and issue a decision in your case.

  • After receiving your petition, CALFIRE may request additional information if, in their opinion, the petition did not give adequate information to permit full review. (14 CCR Chapter 13, Section 1665.5(a)(4))
  • All decisions must be provided to you in writing. (14 CCR Chapter 13, Section 1665.2)
  • The petition can be updated (and new information provided) at any time until the Department of Forestry issues its final decision. (14 CCR Chapter 13, Section 1665.5(a)(6))

The review by the Department of Forestry will be completed within sixty days and will be provided to you in writing (with the reasons for the decision indicated). In that written notice, they will have notified you whether (1) the fee was valid and you should be billed the full amount, (2)the fee should be modified, or (3) the fee should be eliminated.

If it is determined that a refund is owed you, a claim must be filed with the Board of Equalization for repayment. The refund claim may be filed by either the property owner or CALFIRE

 
 
MESSAGE FROM SENATOR DOUG LaMALFA
 
SRA Fire Fee Invoices Now Arriving

On the subject of fees, last year, using highly questionable tactics, the Governor sought—and secured—a fee on property owners in State Recreation Areas (SRA) to support “fire prevention.”
Since new taxes require a two-thirds vote of approval in both houses of the Legislature for approval (Proposition 13), as do new fees (Proposition 26), and many of my colleagues and I would not support the fee, the administration had to find a way around the vote requirement. The majority approved legislation (ABX1 29) on a simple majority vote that didn’t directly impose a fee – the legislation required a state agency to do it for them!
Generally, fees are payment in exchange for a direct service that does not exceed the actual cost of the service, while taxes are pooled and expended for a broad community purpose and have no direct correlation to the actual cost of the service provided. Clearly, the “fee” is really a tax.
As passed by both houses of the Legislature, AB X1 29 required the Board of Forestry and Fire Protection (Board) to establish a fee of up to $150 on inhabited structures within State Responsibility Areas (SRA) to backfill reductions to the Department of Forestry’s budget. Since the statute created by AB X1 29 stated that the fee could be “up to $150,” the Board originally proposed a sliding fee scale that included a maximum $90 fee, with exemptions that could have reduced the fee to as little as $25 for some property owners.
Clearly dissatisfied with the modest approach of the Board, in October of last year, Governor Brown appointed four members to fill vacancies on the nine-member Board, and at the November 9, 2011 hearing, the Board subsequently approved a $150 fee with a maximum $35 discount for properties in a fire district. The four new members, together with two current members of the Board supported the new plan, while two voted in opposition, and one member abstained in protest. Under the Board’s action, those affected by the fee will pay a minimum of $115. I co-authored legislation to repeal the fee (AB 1506 – Jeffries), however, it died in the Assembly.
The fee mandate contains no opt-out provision; however, there is an appeals process provided in the event that you believe that the fee should not apply to your property. An appeal could result in your fee being maintained, modified or eliminated. The appeal must be filed within 30 days of receiving your bill, and the decision on the appeal will be issued within 60 days of receipt. Penalties and fees will be assessed upon failure to pay.

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