A lawsuit over an annual fire assessment on property owners in the Oakland hills has been revived by an appellate court. Overturning a Superior Court decision, the First District Court of Appeal ruled that the lawsuit should go forward because the City of Oakland did not provide for an adequate administrative appeal of the tax.

Two years ago, the Oakland City Council approved the creation of the Oakland Wildfire Prevention Assessment District to fund fire suppression, prevention and preparedness in the city’s eastern hills. The city then established a fee of $65 per house, enough to raise $1.7 million annually. The city created the assessment district in response to the 1991 fire that killed 25 people and destroyed 3,300 houses in the Oakland hills. The city received protests over the assessment but determined that because the protesters did not constitute a majority, the assessments could go forward.

A group of homeowners called Unfair Fire Tax Committee sued, arguing that formation of the district violated Proposition 218 (the 1996 Right to Vote on Taxes Act) and environmental laws. Alameda County Superior Court Judge Steven Brick ruled that the homeowners committee did not exhaust its administrative remedies, and he threw out the lawsuit.

In general, an aggrieved party must pursue every potential administrative avenue before turning to the courts. In its appeal to the First District, the committee submitted a number of arguments for why the exhaustion of administrative remedies rule should not apply here. Among other things, the committee pointed out that the city’s process allows only for a request of reconsideration by the City Council — the same body that approved the assessment district — rather than an appeal to a separate body.

The unanimous three-judge appellate court panel found the city’s process “nebulous” and said the lawsuit should receive a hearing. The system, the court ruled, “fails entirely to provide any procedure for ‘submission, evaluation and resolution’ of such a request for reconsideration; it does not state how the appeal (or request for reconsideration) may be taken, whether the appellant will be entitled to a hearing, when the matter will be heard, what evidence may be submitted, or the standard for reconsidering the city council’s earlier decision.”

The court sent the case back to the Superior Court for further proceedings.

The Case:
Unfair Fire Tax Committee v. City of Oakland, No. A109510, 06 C.D.O.S. 1623. Filed February 27, 2006.

The Lawyers:
For Unfair Fire Tax Committee: Paul Kleven, (510) 528-7347.
For the city: Mark Morodomi, city attorney’s office, (510) 238-3601.