caption here.
The Spindlers’ Stuart Street fourplex. They have argued in court and to community groups that the city is over-taxing them. Photo: Google Street View

A group of Berkeley property owners has taken to emails, phone calls, social media and even the courts to challenge the way the city calculates special, voter-approved taxes.

The property owners — it’s hard to know how many, but at least several — question the accuracy and legality of the city finance department’s way of measuring square footage, which is the basis of the city’ special taxes, used for such services as the library, parks, and emergency medical serves, and the schools.

They claim they’re being overtaxed to the tune of thousands of dollars a year.

There is “potential for the city to be forced to issue a large amount of refunds (perhaps in the millions) and have reduced tax collections going forward,” said David Kellogg, a tax-questioning property owner who is asking the city to reimburse him for back taxes.

The city, in response, says its special taxes are calculated fairly and legally and were all approved by voters as required.

“The city’s voter-approved special taxes such as for landscaping/parks and library services use taxable square footage as presented to voters in ballot measures and codified in the city tax codes,” said Matthai Chakko, a city spokesman.

Chakko pointed out that an Orinda resident recently challenged how Berkeley calculated taxes and the claim “was rejected by Alameda County Superior Court, which re-affirmed the city’s interpretations.”

Municipal legalese

The tax issue is complicated and steeped in the legalese of municipal definitions. The city finance department, which oversees taxes, counts square footage space differently than the city’s zoning department, which oversees building matters.

Basements play center role in the current tax-questioning.

The finance department’s definition of taxable space includes: “The total gross horizontal area of all floors, including usable basement and cellars.”

Zoning, however, defines usable space as designed to be or can be habitable.

“Any portion of a building or structure which is designed to be or can be used as habitable space, which has finished walls (sheetrock or plaster) and/or is heated with any fixed furnace or central heating system, including bathrooms, halls, garages and laundry rooms. Storage areas with over six (6) feet of vertical space shall also be considered usable space.”

So, the property owners ask, why are they taxed for unfinished, low basements that don’t fit the zoning department’s definition of usable? It’s a city definition against city definition.

It’s not this simple, the city says.

Zoning department language is intended for land use and building matters and not for taxation, Chakko said. The city’s special taxes, as approved by Berkeley voters, specify a particular method of calculation. You can’t conveniently choose which city definition you want to apply for which reason, he said.

The lawsuit

The tax issue came into focus earlier this year when Doug and Lilana Spindler, who live in Orinda and own a four-unit rental house on Stuart Street, sued the city in small claims court in February, saying they were over-taxed to the tune of about $2,000 a year.

They asked for $8,127 in tax overpayment, claiming their unfinished basement was wrongfully included in their tax bill because, under the city zoning department’s definition, it isn’t usable space. They bought their house in 2008, but there is a four year statute of limitations on back taxes.

The difference between the two definitions is significant: about 1,346 square feet. The finance department calculated their home as  5,078-square-feet while zoning considers it to be 3,732-square-feet.

“What the city is doing is they’re cheating homeowners,” Doug Spindler told Pat Thurston, a radio show host on KGO.

The Spindlers initially lost in small claims court, appealed and won in May. The city appealed to Alameda County Superior Court and won in September.

“There does not appear to be a legal basis for importing the definition of “usable space,” as developed for and applicable to zoning purposes, into a separate ordinance and regulatory scheme that refers instead to “usable” basement and that governs the imposition of taxes,” Judge Karin Schwartz wrote in her Sept. 4 decision.

Lilana Spindler said this week she doesn’t know what legal recourse she now has.

Of the judge’s ruling, Kellogg said on social media: “I’m aware of that ruling. I consider it wrong.”

Citizen info gathering

Along the way, the Spindlers have been speaking out about the issue. They’ve gone to school board and community meetings.

“There is an ethical and economic problem with taxing space that can’t be used for dwelling. Why would space that can’t house humans be taxed for a library, paramedics, parks, fire department, etc.?  The end result is, unfortunately, a further decline in affordability,” Lilana Spinder said.

Their initial lawsuit was covered by the Daily Californian in August and on KGO.

Additionally, Lilana Spindler, a self-described “number cruncher,” has created a database of tax information she’s collecting. She’s been going to Berkeley open houses, and comparing real estate listing square footage with eyeball estimates and property tax bills, available online.

She said she’s found numerous discrepancies reflecting over- or under-billing by the city.

She and others in the effort say they’ve also discovered other tax issues, such as areas included in taxable space that doesn’t exist on the ground, or areas that do exist but aren’t reflected in taxes. Also, contradictions in taxable space.

“I recently visited two open houses (1344 McGee and 1623 Tyler) which have crawlspaces/reduced height basements larger than mine and with enough height for me to walk around in and those areas are not taxed like mine,” Lilana Spindler said.

Chakko said the city hasn’t documented widespread errors. However, if property owners believe there are mistakes in their city tax bills they should contact the city finance department, he said.

Not apples and apples

It’s hard to gauge how accurate or extensive the grass-roots tax checking is.

For one thing, it’s not easy to learn what square footage the city is using for a property’s special taxes. There isn’t a public database or list of this information, and it’s not on tax bills.

For another thing, square footage data differs depending on who is doing the measuring, and why.

“The definition of square footage varies dramatically depending on who’s talking,” said Brian Hitomi, Alameda County’s chief deputy assessor. “It’s not apples and apples.”

Initially, the Spindlers were directing people to use the Alameda County assessor’s square footage, calling this the “correct” number. Assessor square footage is based on finished, or habitable space, similar to the city zoning department.

“The City of Berkeley should not use their own dubious building area calculation standards for the assessment of dwelling units, they must use the standards and expertise provided by the County of Alameda Assessor who has stringent and rigorous appraising guidelines and protocols,” Lilana Spindler wrote in an email.

But Phong La, Alameda County Assessor, gave a big “whoa”.

“Our records are designed for our purposes and not to be used for other purposes. They’re designed for comparable value, not for taxation. There are differences in how people look at garages or basements or what have you,” La said. “If they want to include attic or crawl space that’s up to them.”

Property taxes are ad valorum, or calculated based on the value of a house, not its size. Value is determined in a number of ways, La said, including comparable selling prices of like properties, and supply and demand. Square footage is one of several tools the county uses to assess the value of homes. It primarily gets its square footage data from city building departments, with regular updates.

The city contracts with the county to audit its tax information and do the collection or billing.

The county assessor doesn’t play any role in how local jurisdictions calculate square footage for their purposes, he said. “The Assessor’s Office is not involved in how the cities or school districts chose to calculate square footage for their special assessments.”

Basic math

The Spindlers and property owners sharing their concerns are now encouraging people to dust off their calculators and do some math.

One of the only ways a property owner can learn what total square footage the city is using for his or her special taxes is to:

  • Check his or her annual property tax bill’s list of special taxes and assessments
  • Look at the amount you are charged for any given special tax
  • Then, go to the city’s property tax webpage, and look up the rate of the tax, or charge per square foot
  • Divide the amount you are being charged for a tax by the rate of that tax and you’ll get the square footage the city is using.

Even the city suggests property owners go through this arithmetic to learn their taxable square footage on file, Chakko said.

But he also said that people can call the city’s assistance line, 311, and ask for help getting the data.

History of audits

This isn’t the first time the city’s special taxes have been under the spotlight. Dating back to the 1990s, the city has conducted several audits on special taxes and assessments, standard procedure, with an eye toward improving accuracy and efficiency.

Special taxes (after the passage of Proposition 13, local governments need a 2/3 vote for a new tax for a special purpose) are usually assessed per parcel or per square footage. According to city documents, Berkeley adopted square footage as the most equitable way of taxing.

In 2005, a city audit of “special taxes, assessments and fees” concluded Berkeley had, in general, improved its management of taxes and assessments.  It found “scattered immaterial errors” and came up with recommendations.

These included better matching of city tax rolls with the county, improvements in managing internal controls, further identification of under-assessed property, and consideration of taxing some exempt properties such as hospitals.

The audit was tracked for several years with progress reports presented to the city council, as is practice.

According to the city, all of the recommendations except one were completed.  The city opted not to hold an election on extending special taxes to non-public exempt entities such as hospitals.

In 2009, a new city audit piggybacked on this one, looking specifically at whether improved workflow systems would help ensure that property tax data was adjusted to reflect new construction, such as additions.

This audit concluded, among other things that: “Finance and Planning have not effectively communicated and coordinated work to properly capture taxable building square footage changes.”

The audit made several recommendations intended to “reduce the risk of lost revenue and reduce the risk of overcharging taxpayers.” Most of these have been implemented, according to the city.

These included information technology (IT) updates and reviewing the usefulness of a planning department worksheet used to record square footage changes.

Another recommendation was for the city manager to consider holding an election on “simplifying” definitions of square footage in the city municipal code and “aligning” those used by zoning and finance. “The City’s practice of using square footage for more equitable distribution of the special tax wouldn’t change,” it said.

The city opted not to take this step, with then-city manager Christine Daniel citing concerns about the cost and value of a special election and the potential of decreased tax revenues.

The value of a tape measure  

Taxes go up when buildings get larger, but transferring this construction data reliably to the county for property taxes, or to the city’s finance department for special taxes can be a rough spot. Illegally added space, built without permits, escapes taxes unless or until it’s discovered and recorded.

According to Ben Trobaugh, a product manager at California Tax Data, which produces property tax disclosure reports, errors in recorded square footage are common, regardless of who’s tracking the information.

“We do disclosures when homes are sold, we get the data from the county and we find errors all the time,” said Trobaugh, who is based in Orange County. Realtors and homebuyers buy reports from his company.

Trobaugh figures it’s usually a human error in data entry. When he discovers errors, he notifies the county. Some of the worst mistakes he’s seen, he said, are homes being taxed by a city that is different from where they’re located.

If there’s any agreement in this flurry of tax questioning, it may be that property tax bills are confusing, with various taxes and assessments calculated in different ways, and that the only way to really know how big your house is today is by getting out the tape measure and measuring it yourself.

But even if you do this, what space to count or not count depends on who is asking for the information, and why.

City spokesperson Chakko said the recent attention on taxes is leading Berkeley to take a closer look at how it presents this information to the public.

“If we can improve this system we’re going to see if we can do it,” Chakko said. “We want to try to figure out a way to make it easier.”

Update 11/30 – Court document links

Superior Court Ruling 9/4/19

Small Claims judgment vacating first small claims ruling 6/6/19

City of Berkeley brief appeal of small claims 6/6 ruling

Sample special tax ballot with tax calculation language 

Measure GG, Fire Protection and Emergency Response, Approved by voters 11/4/08 

Kate Darby Rauch

Catherine "Kate" Rauch has been contributing to Berkeleyside for several years, and also happens to live in Berkeley, near downtown. Her work as a journalist has encompassed everything from 10 years as...

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215 Comments

  1. City needs a consistent definition and a means to check the dimensions on the card for anyone that requests it. Space like that shown should be counted as no more than a fraction of actual habitable space if the city wants to stick it out with a huge headache. If the finance department were deluged with 10,000 homeowners requesting dimension checks, this would end right away.

    Comments on my next door area indicate how few people know about this.

  2. Sure. 50% of the understory is dirt and open studs, the other side is concrete. The city exempts appx 20′ of the concrete side as garage parking. The height on dirt side varies and without replacing foundation and excavation cannot be built out as dwelling according to the Building Dept. The 1963 building card claims this area is a bedroom and bath with pine floors. LOL https://uploads.disquscdn.com/images/6c95e0aa5e58d78767808c0a4006e2cbe82f004e8369d69c518c3c7ba8b839ca.jpg

  3. More outrageously under-assessed properties:
    2339 McGee:
    Realtor BSFT – 3115 ft2,
    County BSFT – 2732 ft2,
    City BSFT – 1881 ft2
    https://www.redfin.com/CA/Berkeley/2339-McGee-Ave-94703/home/2014374

    This one is a fourplex, so a Berkeley landlord is getting a $1200 discount every year, courtesy of the City of Berkeley Finance Department!
    1500 Ward:
    County BSFT – 3476 ft2,
    City BSFT – 2303 ft2
    https://www.redfin.com/CA/Berkeley/1500-Ward-St-94703/home/663520

  4. Here is an example of an under-taxed home by the City for 9 special assessments currently with more special taxes likely added next year.

    https://www.realtor.com/realestateandhomes-detail/530-The-Alameda_Berkeley_CA_94707_M12714-58368

    Realtor lists BSFT @3,360
    City calculates 9 special assessments @1869 T-BSFT
    County lists the property @2068 BSFT

    Families like mine whose homes are over-assessed are SUBSIDIZING a mansion with a view in the Berkeley hills. Meanwhile, my very modest south Berkeley home is taxed (86% over the actual BSFT) for a dirt understory with open studs.

  5. I just went through our tax bill having just paid the first installment of property taxes, and the county makes it way too difficult to understand all the charges. The online property tax bill should be a live document whereby you click on a line item and it takes you to the authorizing legislation and rate.

    Here’s a sample breakdown for a 1500 square foot house. 1500 square feet is the “secret” number on your building card that the city makes hard to access. “Fixed” means the assessment is independent of building square footage. People are voting to tax themselves without even knowing the square footage basis of their property, and the city council and mayor have no interest in people knowing this. When they mention average charge per house in a proposition argument, are they using the county data as sleight of hand or are they using T-BSF, which hides a huge part of the revenue raise from the average person?

    https://uploads.disquscdn.com/images/9fddad0e4c31a2fffde347d9580c0eb9c7076d2165b27cb994e1ddda7179014a.png

  6. My husband and I have been “working” with Finance dept to correct their records errors since Aug. No meaningful progress yet despite Ben Bartlett and deputy CM David White’s assistance.

    I think you are assuming too much too early.

    Our current sample of nearly 200 homes on the market since Sept yields a substantial error rate applying the city peculiar T BSFT methods, appx 35% under assessed, apprx 65% over assessed.

  7. Good to know this can be corrected. Meanwhile a certain council member continues to take the homeowners exemption on his Brickyard Cove condo in spite of fact that it is available on OneRent.

  8. Working on correcting our TBSF – looks like a 10% reduction in square footage reduces total property taxes 1.75%. This was for a property where the supplemental is 20% of the total.

    10% square foot reduction decreased supplemental assessment by 8%, because many items are fixed per parcel.

  9. Ok, I am the first to admit that I don’t know how to argue like an attorney, and I wish I did! I mainly wanted to point out to folks that the ordinance says the “dwelling unit” is to be taxed and the definition of that points to habitability, since the article didn’t talk about that.
    I have calculated the BSFT from properties on the market over the last few months. I will email you what I have and will help your effort in any way I can moving forward

  10. Lilana, I appreciate you raising the issue of basements being taxed generally. But you seem to have a tendency to veer into the indefensible. Try and stay reasonable. The city is wrong, I agree. But if you try to argue there is a substantial difference between “per square foot” and “square footage,” you are losing credibility. We need to present a logical, credible, and uniform attack. Give me a chance, with my attorney training, to push back on the city. It’s not going to be fast. I’m still in the first stage, gathering information, and will be for a while.

    On the gathering information front, I understand you have requested some tax assessment records from the City (e.g., what the county sq. ft. is and what the special assessment sq. ft. is for every parcel in Berkeley). It would be helpful if you e-mailed me with details of the city’s responses.

    [This comment has been moderated. -Eds]

  11. You only need a definition if that term is in the imposition of tax clause. “Square footage” isn’t. 7.56.030.A. For all dwelling units, the tax shall be imposed at the rate of $0.0761 per square foot. You really only need the definition of “dwelling unit”, which they give to be, “building or portion of a building designed for human occupancy.” I know it is another argument of semantics, but they argued that they did not have to use the “usable space” definition and that worked.

  12. “I’m so thankful to Berkeleyside for sharing a picture of an actual property tax bill”

    The point of that was not that it’s a secret. It’s that no-one would bother to see what an actual tax bill looks like, unless they get one in the mail every year. Even if you don’t get one, you’d need to spend some time to dive in and understand more deeply how your vote impacts one of those bills.

    And to be clear, those who became homeowners within the last 15 years have much higher bills, $12,000 or more.

  13. I too am thankful that Berkeleyside posted an actual tax bill.

    If you don’t receive one, you won’t be interested to know what another ‘YES’ vote will do to someone else’s bill.

  14. On the matter of transparency, no one I have contacted in the city outside of Finance Revenue Manager Zotomayor or current and former electeds knew that Finance maintains a second set of books for calculating their peculiar T-BSFT. I went to the BUSD BSEP committee and BFT and few knew that the city Finance dept calculates T-BSFT which differs from county BSFT. I wish this article made this point clearer.

  15. Well, I don’t think the city needs to follow a particular dictionary, but it does need to follow an explicitly stated set of rules, make public the data they have for each property, create an appeals process for changing the number of taxable usable feet, and undertake a 5 year project to confirm with each building owner that the data is correct.

    I would do something like…
    Climate controlled space counted 100%.
    Garage space that can be accessed by car exempt.
    Storage areas with ceiling height in excess of 6 feet with a hard floor counts as 50%
    Decks that are enclosed or roofed count 50%
    Etc.

    Make up your own rules!

  16. So the customer service line’s purpose is to hide the truth from customers? Or does the city hide the truth from people that staff that line?

  17. Just a whiff of George, I think. George would focus on fullest possible value of land (rather than on the “improvements” thereupon) without freezing the valuation at value-of-current-use-pattern or at recent-sale-price-plus-COLA. George would force all toward ‘homo economicus’ maximum exploitation logic. The humble ADU might be wiped out altogether where further density would be required to keep up with land-at-max-exploitation-value.
    Georgian analysis might provide alternate valuations — with and without all extant impediments to max. capitalization such as zoning limitations, rent controls, viewshed ordinances that conspire to limit owner’s ability to capture value of potential uses of the land. Basically, a “perfect-world-value” and a “hobbled-market-value”.
    No Georgianism possible at all here: taxes must be based on actual, not potential, usages: our laws have made NIMBYs of us all.

  18. “Even the city suggests property owners go through this arithmetic to learn their taxable square footage on file, Chakko said.
    But he also said that people can call the city’s assistance line, 311, and ask for help getting the data.”

    On Monday I was looking for the point person responsible for administering Mello Roos CFD1 tax and was directed to customer service 981-7200, aka 311. Nancy answered and told me the city gets their BSFT numbers from the county, she said she has worked for the city for many years and was positive, that the city has nothing to do with how taxes are calculated and charged.

  19. So, by this logic, because houses can only be bought by millionaires, everyone who already owns a house must be a millionaire, right?

    Care to apply that same logic to all renters based on the current going monthly rent?

  20. I enjoyed a productive conversation with Ben Trobaugh, at California Tax Data, mentioned in the article. Ben agreed about a couple things.
    1. homeowners and realtors will now have to disclose whether they are being under-charged or over-charged on special assessments by the City.
    2. errors in county records are in the range of 10-20% and are generally minor discrepancies in BSFT. The Countyagencies abide by state law and provide taxpayers due process rights to appeal and correct errors. I did this, it was fast and painless.

    In contrast, my husband and I are in 4th month with little progress to correct the math/measurement errors on the 1963 “building card”.

    Our heroine, Lilana Spindler, has created a sample data set of current houses on the market which show substantial discrepancies btw similar properties in T-BSFT, about 30% under-charged. The list was provided to David White deputy city manager, the Mayor chief of staff, Jac McCormack attended the meeting.

  21. Welcome to the club. As a long time apartment owner it is nice to know I’m not the only one the city looks at to fund all their goofy programs.

  22. Apparently at the Nov 22 budget committee meeting CM mentioned procuring an ERMS appraisal module. Seems Lilana’s citizen campaign to fix this mess is motivating overdue reforms to operational capacity.

    email thread from our family to Revenue Manager a month ago:
    It looks like there is no interest in database or GIS software to improve capacity to capture details and track the specific building changes.

    All of the effort prompted by the 2005 Audit goes into very old style, paper-based calculation of net change-in-TBSFT. It gets calculated in one “system” and communicated by paper “inbox” to Finance.
    ———- Forwarded message ———
    From: Zotomayor, John R.
    Date: Fri, Nov 1, 2019 at 1:05 PM

    DearCitizen,
    Thank you for your email. For clarification, the City of Berkeley has and maintains its own database of taxable square footage per parcel. Our definitions for taxable square footage are defined in the Berkeley Municipal Code.

    The County has its own database which records living/building area which is often different than the City’s taxable square footage. As such, the City cannot rely on the information from the County.
    Thank you,
    John Zotomayor

    Sent: Monday, October 28, 2019 8:46 PM
    To: Zotomayor, John R. Subject:

    Hi John —

    Hey I enjoyed talking with various City employees at the City Open House in Provo Park Sunday Oct.20, including DoIT people Savita Chaudhary, and (ever so briefly) Cristi Delgado, about needs for a GIS or database to at last supplant the Building Cards and its FIN 602 Retention Schedule, so that you can do your annual job of communicating accurately to Alameda County — with supporting evidence — the amount owed for each parcel, for the special Berkeley taxes under BMC 7.10 (Parks Trees Landscape), 7.56 (Library), 7.82 (Fire Safety CFD1), 7.88 (Emerg Svcs Disabled), and 7.90 (Emerg Med Svcs), etc.

    I believe I heard agreement that City and Dept. of Finance simply do not yet have a data system — or access to a data system managed by any other entity — that satisfies Finance’s requirements for recording and updating accurate building details at the required level of detail (room and usage). Even the current DoIT DSP (Digital Strategic Plan) and GIS Master Plan ignore the requirements for calculating building square footage, as defined within each of these taxes (fees, assessments) measures. Rooms and room-characteristic “usage” are at far greater level of detail than supported levels of detail “parcel” and parcel characteristics “lot-sq-ft” and “bldg-sq-ft”. The plans’ aims

    Coincidentally, and prompting this communication, I received yesterday the current issue of ESRI (GIS) “ArcNews”,. which contains an article, “How Assessors’ Offices Can Use Dashboards to Aid Decision-Making”, that I hope will be of interest to you and Mr. Oyekanmi, as well as to Mr. Phong La at Alameda County. Apparently, many of the challenges in managing data about taxable parcels can be met. I expect that there are many among the GIS community who could provide some assistance to you and the Finance Dept.

  23. Govt replies “Shh, yes we can.”
    And “Ha!. Yes, they voted for it. And no, of course I wouldn’t live there.”
    And “Just make them distinguish ‘crawlspace’ from ‘basement’ from ‘closet’ or ‘garage’ while we obstruct their efforts.”

  24. Sad but true — gotta read the Audits and long string of annual City Manager responses that continue up until each recommendation is either “fulfilled” or rejected with a very good reason. Sometimes difficult for a mere citizen to locate those CM reports on City “Records Online” platform. Case in point is the string of 6 (is it?) CM docs responding to the 2005 Audit. At which point (2008) Auditor cried out with “What Happens to an Audit Recommendation Deferred?” about sorely missed opportunities at increased revenue, before folding the few outstanding recommendations from the 2005 audit plus subsequent derived recommendations into the 2009 “piggyback” audit. I can hear a can kicked down the road — echoes of Mayor Tom Bates running out the clock at Council, a trick he learned as a fair quarterback in a not so hot season. So, sure, read it all and weep. (More links, please!)

  25. A small amount of good news. Per the City’s Geospatial & Open Data Coordinator: “We plan to add the city’s taxable building sq footage to the Community GIS Portal with our next round of enhancements next year.”

    A decent and overdue first step. They should also be including the taxable square footage in the tax bill or assessment letter.

  26. The Merriam-Webster Dictionary defines “floor” as “the level base of a room”. I don’t think most people would consider a space to be a room unless it is tall enough to stand in.

  27. Fri, Nov 1, 2019 at 1:05 PM
    Dear Mr. Tharp,
    Thank you for your email. For clarification, the City of Berkeley has and maintains its own database of taxable square footage per parcel. Our definitions for taxable square footage are defined in the Berkeley Municipal Code. The County has its own database which records living/building area which is often different than the City’s taxable square footage. As such, the City cannot rely on the information from the County. Thank you, John Zotomayor City of Berkeley Revenue Manager

  28. The biggest problem is not the actual taxes, but the special assessments that seem to balloon any time there’s an upcoming election. Totally unpredictable and impossible for anyone to prepare for…. this time alone the items already being proposed are equivalent to hundreds of dollars and it’ll be irrelevant whether you’ve owned your property for one year or 50.
    That’s what makes these square footage issues so important.

  29. Isn’t that where all those booms from exploding chemical and fertilizer plants happen?

  30. The assessments specifically “exclud(e) the following: 1. Areas used for off-street parking spaces or loading berths and driveways and maneuvering aisles relating thereto.”

    Any garage is therefore excluded and cannot be taxed under these special assessments.

    It does not matter if the garage is sheekrocked, heated, etc. If it’s used for off-street parking spaces or loading, it’s not taxed.

    Of course, “used for off-street parking” means that a lot of garages probably should be taxed. Since many residents fill their garages with stuff, block it with a fence, or otherwise make it unsuable for off-street parking.

  31. We absolutely should repeal prop. 13 and assess every home at market value. That’s an issue independent of the arbitrary taxation of basements.

    I don’t have sympathy for longtime owners complaining about excessive property taxes. I do have sympathy for ALL residents when they are unable to determine with reasonable certainty what spaces are taxed. That’s a violation of constitutional protections for due process.

  32. Scattered not smattering. Will make the correction, thanks for pointing out.
    We linked to the audits. Readers can read the entire thing (s).

  33. For the city assessments, are garages under a house considered usable space or a basement? Or neither? If you look at the BMC referenced above, the “basement” definition includes garages under a house, but not adjacent to a house. “Usable space” includes only those garages with sheet rock and/or climate control, independent of their relationship to a house.

    A garage in a backyard with sheetrock and no heat is considered usable space. A garage under a house is considered a basement.

    Is an unheated, unsheetrocked garage under a house considered a basement for city assessment purposes; usable space; or is it unusable space that is therefore not taxed for city assessments?

  34. @foto_fan:disqus I think your implied assertion that the population is divided so cleanly into the haves and the have-nots is flawed. These days, a lot of families have to make big sacrifices to scrape together enough money for a downpayment. Once they move in, many don’t have a lot of wiggle room in their budget.

  35. That 1.35 million house can be purchased by two people making $9,000 per month each. $108,000 per year each. That’s someone with 7-8 years experience in a moderately successful company.

  36. If people can afford $1.34 million on an overpriced bungelow then they can afford the taxes. The problem with Berkeley is that now only millionaires can afford to live here.

  37. Great, thanks for the additional info and link.
    I remembered the payment and that it was not thought to be close to the infrastructure cost, but I have no idea how that’s calculated. Like, how much do we ding UC for city streets? BPD/FD responses to UC events might be a little easier to isolate, although not necessarily (and there’s reciprocity there, at least.) And, unfortunately, I wouldn’t blindly trust either UC or the city for their numbers and claims.

    That said, it’s also incalculable how much indirect economic activity UC brings, which is taxed. All those boba tea shops are paying substantial employee and sales tax on items bought by students. I went to UC and am proud of it.

  38. “I would disagree with UC as they’ve taken major hits with shrinking funds from the state; many buildings have been majorly renovated/added as well, upping their assessments.”

    UC is entirely exempt from property taxes. Not sure what you’re getting at. It’s always been an issue in Berkeley- good and bad, the university brings culture and people and business, but also blows a huge property-tax-free hole right through the heart of the city. Arguably cities like Albany do much better, having access to the culture and economic drive the university brings, without having to host the school real estate itself.

    I believe UC an the city negotiated an annual payment in lieu of property taxes, but it isn’t thought to be anywhere near the cost of providing infrastructure to the school. UC poo flows down Berkeley sewers, but they don’t pay a sewer tax.

  39. “In 2005, a city audit of “special taxes, assessments and fees” concluded Berkeley had, in general, improved its management of taxes and assessments. It found “a smattering of immaterial errors” and came up with recommendations.”

    Auditor wrote scattered not smattering. And directly contrary to minimizing the concerns, Auditor states that an error rate could not be extrapolated. Takeaway: the errors are everywhere and we hope they are small. (Not, the errors are all small and can be ignored.)

    Also shows that retroactive collection was aggressive, far different from policy for refunds of erroneous overcharges.
    Also holds out promise that practices will improve. This has not happened at all, and the author hardly noted this sad fact.

    https://uploads.disquscdn.com/images/5c6161be98dc2928cc1c03589759214995df65368342fd0a48cf9a29a60dc24f.png

  40. You were interviewed extensively for this article and when you thought it was going in a direction with which you disagreed, you pulled out and demanded that your name and experience not be included. You had an opportunity to expand on what you call “city malfeasance” but you decided not to participate. Our reporter wrote about what she found. I know you think it does not sufficiently blame Berkeley. Point made. You may comment about specific aspects of what you disagree with but no more general complaints about the article. Your point has been made.

  41. Glad you noticed that. They cited the homeowners’ exemption refund statute when that has no bearing on this case. Their exhibit 1 shows proof of the square footage that I claim to be correct, etc.
    But, of course, I had no brief, so I have no right to cast aspersions. For the “de novo” trial, the City’s brief is an unbelievably long document, although they had just one argument, that they don’t have to respect Chapter 19 or 23 of BMC when they impose tax per Chapter 7 BMC. The judge was happy with that. Shall I have Ms. Rauch post just the written part or would you like the whole document?

  42. The quote is not in dispute, we know the city has the legal right to design their special assessment using a peculiar BSFT method.

    Perhaps reread what I actually wrote.

  43. living off what income?? And surely you know you have to be a permanent resident in those places to get health insurance? I’m not sure most would walk away from everything they have and love to “live cheaply”.

  44. I suspect some of us have lived in Berkeley longer than you’ve been alive. This is our city, too; we can complain and we can do something about it; we don’t need to run away and hide.

  45. Seriously, are Berkeley homeowners really the whiniest group of people?

    Could it perhaps be residential renters who aren’t lucky enough to have a rent control benefit?

    How about RV dwellers? Just give us land!

    When is the next homeowner demonstration?

  46. UC Berkeley sent out a report stating that there has been a 33% drop in the amount of solid waste the university creates. Berkeley is suing Cal for more money. Here is a bit about that and a link to the article
    “Berkeley has previously stated that the cost of providing services to UC Berkeley is now around $21 million a year, up from $11 million in 2003 — but UC Berkeley officials said the university has not seen firm figures backing up that figure. As part of a legal settlement hammered out in 2005 when UC Berkeley did its last long-range development plan, UC Berkeley agreed to pay Berkeley an annual fee to offset its impact. In 2019, the payment, which has increased with inflation, is about $1.8 million.” https://berkeleyside-newspack.newspackstaging.com/2019/06/17/city-sues-uc-berkeley-for-not-studying-impacts-of-34-student-enrollment-increase

  47. Thanks Catherine. The brief from the City is particularly interesting. They define “basement” by referencing the definition of “basement” in the “zoning ordinance” of BMC 23F.040.010.

    But when it comes to the “usable” part of the taxable “usable basement,” they absolutely refuse to incorporate the defintion of “usable space” from the “zoning ordinance” of BMC 23F.040.010.

    Why do they think they can incorporate one defintion without incorporating the other?

    The city’s argument, in its entirety, for why the basement is – “usable” – “Per the City’s defintion, Ms. Spindler has a basement that may be used for storage.” Umm… what defintion?

  48. You should measure your house before you raise a ruckus. If the official number is wrong you will increase your own taxes.

  49. Well, Kate, who is a long-time reporter, also talked to La and reported what came out of the conversation. You have a specific take on this issue and it’s no surprise you wanted a different answer than La gave our reporter.

  50. Usable but uninhabitable space should count as a fraction, and garages for a different fraction.

  51. People pay taxes when they don’t sell. So, one has to have other sources of income and the value of the house is irrelevant. Seniors on a fixed income who aren’t eligible for exemption are particularly affected.

  52. Assessed at <$600,000, what a joke. Also suggests that some commenters are lying through their teeth on Berkeleyside when they say that special assessments “double” their property tax bill. Looks like it increases 37%.

    Berkeley homeowners are the whiniest group of people in the Bay. Just leave. Sell your house for $$$ and open up some space for people who actually want and need to be here. Especially if like most others, you bought in the dark ages and are paying next to nothing in property taxes.

  53. People raising the issue want a consistent definition so they can check the city’s math. Seems pretty basic that you judge the quality of that definition by how close independent measurements are to each other.

  54. LOL. A basement should be part of the estimated square footage of the house. The fact that it hasn’t as a rule is pretty funny. The tiny house across the street from me in Southwest Berkeley just sold 1.35 million. I’m sure people can find the money to pay taxes.

  55. If you have anything I missed, Lilana, please email to me and I’ll add to the story as a link. Thanks.

  56. Rauch presentation of Phong La’s perspective on the Tax Scheme Debacle does not ring true for me. I talked with the Assessor after calculating the city’s theft from my family several months ago.

  57. Phong La seemed very sympathetic to the taxpayers when I spoke with him about this. After all, he campaigned for office on the platform of fighting for the taxpayers right to fair taxation since he helped his parents fight unfair taxes for years. It was my impression that he can’t do anything about the way the City taxes, since he has no oversight function. It seems the City is under no oversight for property tax assessments accuracy. I hope this proves to be wrong!
    A bit more history is interesting..the Chronicle reported on 11/12/80 that “to compute the library tax, the Finance Dept. hired three college students to sift through the 28,000 parcels in Berkeley to figure the square footage.”
    State Code and BMC 7.24.010 however requires, …”transfer to the appropriate officers and employees of the county of Alameda. A. the assessment of property for City taxes… ” (Section 51800 Ca Govt Code, 1965)

  58. Since I filed in Small Claims Court, I don’t think it would be available on the County Court website as a typical civil claim would be. Would it be helpful if I post the rulings here in the comment section? (The judgement for me, with award, against the City and then the subsequent appeal or “de novo” ruling which overturned it)

  59. No that is what is the official record at the county and on all real estate transactions for the past decade or so.,

  60. “But Phong La, Alameda County Assessor, gave a big “whoa”.”

    And I’m a big fan of Phong! So here is the back story…..Once upon a time in Berkeley there was a humble library finance clerk. At a meeting regarding the proposed library assessment, people chortled when the humble clerk raised his hand to speak. He then proposed modifying the rate of increase wherein, the assessment change rate would not be the CPI, but the larger of either the CPI or the Wage index. Over time, the change rate would exceed both the CPI and the Wage index resulting in huge increases in the tax. The assembled bureaucrats reportedly gasped at the cunning brilliance of the idea. The panel loved it and right there, put the Clerk in charge of the drafting of the assessment. For the humble clerk was not done with tweaking.

    At this time, elected officials accepted the idea that property assessments for services would be taxed based on “gross living area”, which is the standard measurement used by the real estate appraiser (assessors too). It made sense, since there would be no demand for services emanating from the areas that were not legal living spaces. However, the humble clerk, tweaked the definition for the library assessment to include all of these basement storage areas.

    When it came time, the voters passed the assessment with little idea of the time bomb they had just unleashed. In celebration, the supporters asked the humble clerk how they could reward him? I am not sure the words he said, but they were probably something like, “I want to be City Manager until I retire with the biggest damn pension ever paid out by the City.”

  61. I added the court documents I have as links at the bottom of the story. I’ll do the same with any additional documents I can access.

  62. Where can I find the legal documents related to the Spindler case? Entry of judgement, appeal, decision, etc? I was not able to find this on the Alameda County website. Is this stuff available on the web?

  63. I doubt the number of unaffected Cal students count for many votes; many Cal students are legitimate residents here: living with parents, children in schools, etc. They also seem to get stuck in lousy housing with crazy rents that get raised frequently, as those with no ties tend to only rent for a year or so.

    I’d point more towards the portion of the >50% city residents who are renters not being affected by their votes on taxes/bonds, on an ineffective council/mayor –particularly fault those who spend a majority of their day somewhere else and only live here out of convenience.

  64. This is one of the more annoying aspects. The tax basis should be front and center. On the tax bill or at least on the annual letter with the assessment.

    Hiding the tax basis is, IMO, immoral.

  65. I agree, especially since the city allows tandem parking now.

    The 1963 building card exempted a one car garage. However the sketch included imaginary rooms and spaces. We appealed with photos and drawings and the city responded accusing us of removing the rooms without a permit. Never mind, on two occasions I requested permitting information about constructing such a room and bath and was told not without a staircase and excavation.

    We accept the minor error of 30sqft in the county number. The city, however, charges us for an additional 916 sqft which is not habitable space.

    The city leaders are crooks imo.

  66. Blame renter and Cal student voting about an issue that doesn’t affect them: home ownership and tax paying. Meanwhile, you can’t raise rents to adequately cover increased taxes.

  67. A landlord cannot pass thru property taxes. Rent is used to pay taxes but if taxes, mortgage, expenses are not covered by rent theN too bad for LL. Geez.

  68. who do we contact to find out what is actually being taxed? As in what portions of our property don’t coincide with the County Assessors information? Please provide a contact/name, phone number, email address and possibly location of this office?

    I would like to find out in a simple fashion and quickly to see what is causing our difference in property taxes 1454 sq ft (Alameda county) vs. 1989 sq ft that the City of Berkeley is taxing us on. Note: We have no basement, no crawl space and the only thing I can think of is our 2nd story deck?

    It would behoove Berkeley Taxpayers to start asking the question and hold the city accountable if indeed there are discrepancies.

  69. I would mind the extra payment less if we had well paved streets, great public amenities, a pier, a smooth road to get there, etc. Instead, my extra payment went to a capoeira studio, a $6 million food bank building, and into the maw of pensions for a city staff that is double the size it should be.

  70. Was there more space that was accessible by car? I.e. why just one space and not two if there was more space under your house?

    And, is that something you garnered or was that written on the city card, an artifact from the time and judgement of the person documenting the data?

  71. The city needs to put a LOT more information online. Having to contact this or that department or file PRA requests is a giant hassle. Other cities do much more.

    In this case, the data are relatively static and can simply be a spreadsheet, making it much easier than exposing a queryable database. Now the city LOVES to send PDFs of spreadsheets, which it should stop doing immediately. Citizens deserve abundant and usable data sets for every activity in our government with few exceptions.

  72. Judge Schwartz was snowed and wrote a non-committal response. The idea that a usability standard is not aligned with Zoning code is absurd, and I bet the voters never intended such nonsense. The municipal code is quite clear, no use is permitted unless it conforms with Zoning Ordinance.

    23A.12.010 Uses and Buildings Must Comply with Ordinance
    No land or building shall be used, or designed to be used, nor shall any new building or structure be constructed and no existing building or structure shall be moved, altered, enlarged, structurally altered, reduced, reconstructed or demolished except as permitted by this Ordinance, either as of right or by permit. (Ord. 6478-NS § 4 (part), 1999)

  73. Most governments do not. Berkeley is an outlier in Alameda County, the only ‘regulatory scheme’ (judges term) using BSFT, all other cities used a percent of value which is a progressive tax method.

  74. Most long time residents couldn’t have imagined the change in value, how the city would unfairly generate more revenue, the dropping of mortgage rates from >18% to what, 4%?, etc.,etc.

    Crazy

  75. Which is why no new owner would want to rent under capped rents and increasing taxes, so below market supply shrinks.

  76. The special assessments specifically exclude from taxation:

    “Areas used for off-street parking spaces or loading berths and driveways and maneuvering aisles relating thereto.”

  77. I understand the difficulty of writing a headline. I stand by my point.

    The headline asked a basically silly question with an obvious and uninteresting answer.

    My headline highlights the heart of the legal question.

  78. Time to leave California!
    – Can’t manage its natural resources.
    – People living on the streets and in cars.
    – Streets and sidewalks used as sewers, festooning disease.
    – Rampant illicit drugs.
    – Can’t reliably provide power or water to its residents.
    – If you happen to make money, they’ll take much of it.
    – Forest fires destroying towns
    – Earthquakes

  79. “If we can improve this system we’re going to see if we can do it,” Chakko said. “We want to try to figure out a way to make it easier.”

    For starters, how about posting the Taxable Building Square Footage (T-BSFT) basis on the tax statement, or at least on our annual Notice of Assessment? This seems so self-evident that I suspect Chakko is being disingenuous.

  80. I’m glad that I didn’t have that reminder back when I purchased my house — since the value has gone up so much that it is now worth over $1 million.

  81. Massive limitations if you read the fine print, and only on a few items. I know, I’ve seen the tax bill of my 80 year old friend.

  82. Calculate what you should pay, get back to us. Use the link provided by B’side + a little research…

    Rent control.

  83. Are garages located under the house considered usable space? What defines a garage? We have a garage that is under the house, but cars can’t occupy all of it because there are nooks and crannies behind columns. But the space can be opened to the outdoors via multiple garage doors. Does this space count as usable space or is it exempt because it is a garage? Does the definition of “located under the roof” control its inclusion or are garages excluded from usable space regardless of their location, including under the roof line?

  84. Why do Berkeley renters (some who afford to pay $4K a month in rent) assume that being a home owner means you are 1%er, when many people bought houses 30-40 years ago and are on fixed incomes?

  85. I also believe that Alameda County rounds up the square footage of our lots. My property is 80×40 and I am taxed for 3200 sq. ft, but my property is not a rectangle, so I actually own fewer square feet.

  86. I don’t think the headline is wrong. But capturing all that’s going on with this issue in a headline isn’t easy. The law suit was about the legality of taxing a basement, which taxing code considers taxable because it’s usable, but zoning code doesn’t consider usable space, because it doesn’t meet the standards of habitable. The superior court stood with the city’s right to tax under taxing code. (And city authority for these special taxes requires a 2/3 vote.)

  87. Of course they are taxed—landlords pass it through. And many pay market rent to Prop 13 protected landlords who take the windfall.

  88. Unless family pets store things in basement storage space. If the city says dwellings are taxed with this tax, then it is wrong to count basement storage where no one ‘dwells’. It appears the city can do what it wants, eh?

  89. /every renter pays taxes when they pay rent. I know no landlords that do not pass their property taxes onto their renters. geez.

  90. This law has exceptions for seniors and poor disabled. A 70 year old neighbor on a fixed income is treated differently.

  91. if storage space in a storage facility is taxed differently than storage space in a home, this is unjust and could be used in a law suit. I knew storage space is taxed, my real query is why would CoB tax storage space in a storage facility differently than sstorage space in my basement?

  92. It’s an issue because David just bought a new house and is cranky that they’re expensive. Also he’s a lawyer and they love to express their opinion.

  93. Cities like Berkeley have to scramble to make ends meet for a far more fundamental reason: they never met a municipal expenditure they didn’t like.

  94. It logically shouldn’t, but politicians don’t give a flip about logic, only power and revenue (but I repeat myself).

  95. And I’d like to stand up for my generation (as well as my parents’) to say that none of us had seen mortgage rates anywhere this low!

  96. Thanks Kate for oppty to clarify.
    Not sure why Ann-Marie suggested a fix via yet another election measure with detailed wording too clever for mere voters. That route — redefining T-BSFT — does absolutely nothing for accuracy and efficiency. By 2009, millions in annual salaries had been expended pursuing accuracy and efficiency of tracking only the permitted modifications to BSFT. (No effort toward validating baseline data from old pre-1970 “BuildingCard” system, no effort toward fresh ground-truthing when properties are sold.)

    Auditor’s more worthy recommendation therein is about aligning with Planning’s definition. No special election needed. Clearly efficient. And BSFT could also be validated against County records.

    My reading is that City already provides the necessary interpretation, without disclosure or review, of those key terms “basement”, “usable”, “storage”, and even “6 foot” (is that “6 foot above grade” as it is for zoning’s treatment of basement as a storey?) that are baked into the BMC Title 7. City insists that Title 7 Taxes stands on its own without any coordination with Title 23 Zoning, and does not within Title 7 define those terms. Such vagueness in law is typical grounds for a challenge as unconstitutional.

    Not sure what Ann-Marie meant with “The City’s practice of using square footage for more equitable
    distribution of the special tax would not change.” City’s PRACTICE clearly had not lead to equitable distribution of tax burden bcz it had again proven impracticable. City’s POLICY or INTENT to use for T-BSFT as equitable still sounded great.

    Please cite also City Manager’s final Status Report (July 24, 2012) in response to the 2009 audit. It is an ABSOLUTE GEM, reporting that the recommendation (to merely “consider…”) has been implemented. There is no CM comment at all about any cost of any special election. Instead, “Staff acknowledges the Auditor’s finding that having two definitions [of gross floor area] adds complexity to the system as staff is required to use and track two separate definitions of floor area for purposes of ensuring accurate assessment of taxes. However, revising the definitions to conform to the new International Building Code definition has a significant downside in terms of potential revenue loss.”

    Draw your own conclusions. Mine are that accuracy and efficiency have been sacrificed. Further, transparency and accountability have been compromised: Finance Dept makes no effort to disclose, much less to inform the public of, the “two sets of books” required to conduct the special taxations.

  97. We can get together after the holiday. Just ran into my D3 council rep Bartlett, who has been trying to provide assistance and met with Lilana, Doug and I about a month ago. He agrees, taxpayers deserve fairness, transparency and due process rights. I hope he shows some leadership as promised.

  98. I would disagree with UC as they’ve taken major hits with shrinking funds from the state; many buildings have been majorly renovated/added as well, upping their assessments.
    Otherwise, yes, if you’ve owned a Berkeley business space for say, 25 years -you’re in great shape. Unlike homeowners you can raise rents anytime you wish and find a leasee willing to take a chance.

  99. As Berkeley continues to tax a growing square footage of living space they claim they want expanded, we will force people to sell their homes, or demolish parts of their homes, so they can afford to pay the taxes.

  100. Jesse and his posse are working hard to make Berkeley unaffordable for everyone, one square foot of basement at a time. They are coming for our homes.

  101. Basic Math for Berkeley’s Taxable Building Square Footage (T-BSFT).
    For residential property, one may need only examine a single line in the 2019-20 tax bill: at upper right, the amount owed for “CITY ST LIGHTING” divided by 0.0108. (The 1836 DELAWARE example: $20.74 / 0.0108 = 1920 T-BSFT.)
    If you think the number too low, be quiet and take the windfall. Else, you may already be a member of “[a] group of Berkeley property owners [taking] to emails, phone calls, social media and even the courts to challenge the way the city …”

  102. Tape Measure is not sufficient. I have contacted Finance Dept. — persons there are responsive with good news or bad, after months of stonewall and then starting with “Well, you won’t get your money back” for 30 years of over payment — about errors in their “Building Card” evidence, circa 1963, as to how large my building square footage. My porch is larger, my bay windows smaller (or non-existent), compared to their records — this will all be adjusted and a refund offered for a mere 4 years of overpayment due to a statute of limitations on redress (as if the officials are common criminals – well I suppose so).
    But my house is also a full 2 feet shorter than shown on the 1963 cocktail napkin. Finance Director is stymied: “[T]he discrepancy of the two feet is on hold, pending a decision on how the City can effectuate such a review, keeping in mind that we will want to handle requests from other property owners in the same manner.” I can see a queue forming now.

  103. OT [slightly] test question: Once you’re figured out how much taxes would be raised, is it OK to ask your 70 year old neighbor, on a fixed income, pay that additional amount?

  104. You obviously have not checked your calculations! Counting the roof overhang (not just inside the walls as required), my house outside edge is 1390 sq ft. We have two floors on a slab (including a garage). OK, count my attic (not finished as required & can’t stand up), so 3 floors at most = 4170 sq ft. but the uncontestable Berkeley measurement of my house for taxes is 5897 sq. ft. Berkeley says “F U”, it is what we say it is!

  105. Correction for author: 2009 audit recommendation was not to consider holding a special election. Special election expense was a detail offered by the City Manager as one reason to refuse to align fix inaccuracies and resulting inequities in the existing, lucrative protocol. Throughout the City leadership — Manager, Finance Dept., Legal Dept.– the view is that City can calculate T-BSFT any way that appears to accord with BMC. Court agreed. (Council is mum. Citizens and Berkeleyside readers may be confused into silence as well.) There is no need for public to weigh in via special election or any other complication: City is free to fix errors and inequities immediately and without citizen review if they so choose to do the right things.

  106. Thanks Berkeleyside for the reporting. I hope my failure and the publicizing of it, can somehow lead to reduced assessments for others who are overtaxed. Maybe, with more pressure, the city will start taxing the “dwelling unit” as stated in BMC 7.56.03 and using the Assessor’s Roll for square footage as in CFD1 (Mello Roos). Other cities, like San Diego, have been convinced to do so.
    I have seen several Berkeley taxpayers who are right now in arrears on the Berkeley taxes or in pre-foreclosure who are paying for double the dwelling unit square footage. Meanwhile, there are the lucky others (or the shameful others!) who are in the City’s database with substantially lower square footage than the County Assessor has on record (56 properties in Berkeley now for sale or currently pending with $16,000 revenue loss per year).
    I’ll also mention, although I love my tenants and it would be lovely to turn that crawlspace into a rec room for them like one commenter suggested, the rafters are too low (less than 6 feet). We hit our heads if we don’t walk hunched over in there.

  107. It is not the normal home landowners that are the problem from Prop 13, it is the big corporations that won in the Berkeley Commercial Areas, including many of the UC buildings. They kept their mouths shut during the Prop 13 election, knowing they would win big time because their corporate property values are sometimes backdated to 1910’s.

  108. Exactly, yet if we were to suddenly “get rid” of Prop 13, do you think -for a second- that they would dispense with all these assessments?

  109. Phong La as County Tax Assessor raises key issue. As designated bagman / enforcer, his office does not have adequate tools to track “taxes” based on anything other than property value. Yet Prop 13 has been law in California since 1979 and locales have been desperate for revenue ever since. So, no surprise that a city bids county to add in x,y,z to the annual tax bill. Surprise (to me) is that county agrees to do so.
    Many in Berkeley now realize that we are adrift between County’s “not my job” and City’s “trust us”. Thankful for City’s incompetence (or worse), some are under-assessed. Not equitable, not managed, not what any of us voted for.

  110. The city does not have the right to tax some and not other “usable” basements/understories. I disagree that taxing non-living space was ever the intention of the voters. The tax language the city used is dwelling, suggesting humans using the space.

    The expansive and unique language was created by Phil Kamlarz when he worked as a library clerk. His skill at deception earned him a promotion eventually becoming the CM, now retired with $240,000 pension.

  111. How does CoB tax the storage space in storage-space buildings? that’s usable space so does it get taxed under this special, voter-approved tax? I think the voters were sold a confusing tax, if not a flat-out deceptively worded one.

  112. Live long, Amigo. And choose: Should I stay or should I go now? California under Prop 13 is a bit of a game — part “stick it to the newcomers” and part “golden noose”.

  113. Totally agree with Chakko that “You can’t conveniently choose which city definition you want to apply for which reason”. Yet this is what CITY OF BERKELEY has done and insists upon doing: Finance Dept. does not play well with Zoning Dept. does not play well with Building Dept. does not play well with Planning Dept.does not play well with County Tax Assessor. City Auditors have expressed concern at several junctures roughly coinciding with campaign launches for special-tax renewal efforts: Berkeley, We Have a Problem.

  114. My kid’s tax bill ain’t much different than ours. They bought 6 years ago in Oakland, we bought 32 years ago in Berkeley.

  115. The errors in our case are greater than data management, math and measurements. There are dozens of properties for sale currently with the same understory area as our house, the difference, we are taxed, they are not.
    Now you can continue with all the rationalizing you want, but fair is fair, arbitrary standards create massive inequality, and Berkeley is taxing residents arbitrarily and without due process appeal rights, that means they are capricious as well.

    You are also wrong on importance of Spindler’s effort, a garden teacher working in elementary grades exposed serious fraud by the city of Berkeley.

    Regarding your assertion “I doubt anyone disagrees with that” , not close to factual. We have been stonewalled by city staff and electeds for more than 3 months. And the city own records details 40 years of failure to implement internal data controls.

  116. T/U B’side. Big thank you for the link to the tax webpage (before March everyone should calculate their current vs proposed taxes+assessments).

    Think I’ll rent out our crawl space…..

  117. ———- and when prop 13 gets reversed and the rich corps and richest of the rich landowners get to pay their fair share, we won’t be picking at basement nits . . .

  118. Yet in court Bourgault said “we surely don’t want to tax crawl spaces”.

    We gave Kate letters from Finance manager and Revenue manager that should make tax payers skin crawl.

  119. I’m guessing usable space does not include the area covered by the walls of the building. This is less than building square footage.

  120. How many renters does Berkeley have? Do they have to pay some of these Municipal taxes, or is it only the Property owners who luck out?

  121. Special assessments are the work around, so your complaint does not hold. Also 40% of properties are exempt non-profits.

  122. The real headline: Berkeley taxes, but refuses to define, usable basements.

    Unlike the original headline, this new headline focuses on the actual controversy. Namely, what is a “usable basement.”

    The original headline suggests that the controversy is the legal right of the city to tax usable basements. It’s really not. The city would clearly have that authority, if they defined what a usable basement was.

    Based on the comments from those not familiar with this dispute, I get the impression the article is not conveying this distinction.

  123. Can you please add this to the article? I think it’s extremely important to show how steadfastly the city refuses to define a “usable” basement.

    When I asked the city to explain how they judge what spaces are “usable basement and cellar” and which are “non-usable” basement, crawlspace, or the like, the city deputy attorney wrote: “City building inspectors understand as a matter of common usage the difference between a basement and a crawl space” (Bourgault, Lynne S – Deputy City Attorney)

    For people that want to know the test, that’s the best (worst) one so far.

    I can forward the e-mail if you need proof.

  124. you write that the “legal question is whether the city of Berkeley can tax basements and garages… “which do meet the city’s criteria as being “usable”?

    I think you’re very close to the actual question. It’s not really whether the city can tax usable basements (they can), it’s whether the city has defined makes a space a usable basement.

    Can you tell me what makes a space a usable basement? What are the city’s criteria for a space to be deemed a “usable” basement or cellar?

    I’ll give you the answer. There aren’t any criteria. The BMC says the taxes apply to “square footage” which is the “total gross horizontal areas of all floors, including usable basement and cellars, below the roof and within the outer surface of the main walls of buildings.” There is NO other definition that the city is willing to accept. No examples. No measurements. Nothing.

    When I asked the city to explain how they judge what spaces are “usable basement and cellar” and which are “non-usable” basement, crawlspace, or the like, the city deputy attorney wrote: “City building inspectors understand as a matter of common usage the difference between a basement and a crawl space.”

    So the “criteria” you’re looking for are buried in the minds and opinions of the building inspectors.

    I call that an illegal violation of due process rights to certainty and predictability. What do you think of it?

  125. You’d happily pay taxes on your garage? Interesting. Since garages are explicitly untaxed.

    I think you have me confused with an anti-tax advocate. I’m not. I have voted for and will* continue to vote for these taxes. My issue is that the amount of tax each person should pay should be clear and predictable. People with similar houses should not be taxed as if their houses were different sizes. And right now, that’s exactly what’s happening. I cannot condone the arbitrary application of taxes.

    Because the taxation is arbitrary, it’s likely not a problem focused just on the richest or poorest homeowners. It’s more likely random. But random means low income owners get hit as well.

    I’m not the Spindler’s lawyer no. In this matter, I’m representing only myself at the moment.

    *If and only if this uncertainty is resolved.

  126. And of course this bill reveals the secret cause of why cities like Berkeley have to scramble to try and make ends meet. It’s a $1.3M house that’s assessed and taxed at $500k because it’s been off the market for 20 years.

    No shade meant for the owners, any older property owner in California gets that advantage, but it’s the real problem at the heart of a slapfight like this one, over whether Berkeley can tax basements.

  127. I’d just like to stand up on behalf of my generation to say that none of us have ever seen a property tax bill anywhere near this small.

  128. When I contacted County Assessor in late August, he said ” where are they getting 1977 sqft, we have 1061 for your house”. He also confirmed that the Berkeley method is unique in the county and regressive.

    Interesting to see the spin.

  129. I should be able to pour a slab floor that yields 5 feet of head clearance and have that space removed from my tax calculation
    But you’d also be killing the value of your property. With 6 feet of clearance, you can excavate by right for a major residential addition or ADU.

  130. Deck without a roof is exempt. Reading the BMC is not as complicated as the article states. One just needs to take notes on the purposeful, conflicting and vague terminology the city employs. SOP for the city= plausible deniability. Not legit, Not ethical, Not Fair, Not transparent and No appeal process.

  131. The Mello Roos assessment are governed by state legislation yet Berkeley ignores the rules and applies their notion of gross floor area when the Mello Roos tax says county BSFT.
    The state controller private property staffer laughed when I read the Appeal court Judgement against the Spindlers.

  132. Record mistakes suck. I’m sorry you paid your community money that you didn’t have to. Obviously, the city’s records should be correct by their rules and they should make it easy to fix if they’re not. I doubt anyone disagrees with that.

    But that’s not really the topic here, it’s all about a legal case that was lost in court and is now being pushed into social media as if someone were trying to gain public sympathy. And that legal question is whether the city of Berkeley can tax basements and garages and attics in our million-dollar houses that don’t meet the definitions that allow you to include them in the square footage while selling, but which do meet the city’s criteria as being “usable”. The only problematic issue that I can see there is whether the city is being consistent in their classifications, which obviously they should be, but I’m not going to believe the assessment of one of the plaintiffs looking at a couple of open houses.

    And, gee willikers, there’s a lot of discussion of “crawlspaces” as if someone were trying to make you think that your two-foot crawl space might be taxed, when we all know that basements are what’s really under discussion.

  133. Do I believe that this is an issue primarily (or even largely) affecting low-incoming families? No, I do not. (Do I think it primarily affects high-income homeowners, some of whom are landlords living it up in Orinda? Yes.)

    Do I think that Berkeleyside is allowing itself to be manipulated by monied interests to raise public uproar on an issue that primarily affects the 1%? Also, yes.

    And beyond that all: Do I believe that I should be going out of my way to deny Berkeley of funds for their libraries and parks? No, I do not.

    As it happens, Berkeley’s count of our square footage exactly matches AC’s. But, if I’d learned they were including our garage, for example, I’d feel no different. We know what we’re paying Berkeley, it’s right on our yearly tax statement, and we consider it a fair value for living in a society with amenities like green spaces and books I can borrow (and police that ensure I don’t die and fire men who protect my property and …).

    ARE YOU the Spindler’s lawyer, David TheDude? Associated with them or the lawsuit in some other way?

  134. I think the assessments all use the same definition of “square footage” (space that’s taxed), but I haven’t confirmed that. I’ve copied the definition from the library tax below.

    An open air deck (no roof above) should not be included. First, it’s not “below the roof.” Second, it would seem to be explicitly excluded under “2. areas which are outdoor or semi-outdoor areas included as part of the building to provide a pleasant and healthful environment for the occupants thereof and the neighborhood in which the building is located.”

    https://www.codepublishing.com/CA/Berkeley/
    7.56.020 Definitions.
    G. “Square footage” shall mean the total gross horizontal areas of all floors, including usable basement and cellars, below the roof and within the outer surface of the main walls of buildings (or the center lines of party walls separating such buildings or portions thereof) or within lines drawn parallel to and two feet within the roof line of any building or portion thereof without walls (which includes, notwithstanding paragraph 3 below, the square footage of all porches), and including pedestrian access walkways or corridors, but excluding the following:
    1. Areas used for off-street parking spaces or loading berths and driveways and maneuvering aisles relating thereto.
    2. Areas which are outdoor or semi-outdoor areas included as part of the building to provide a pleasant and healthful environment for the occupants thereof and the neighborhood in which the building is located. This exempted area is limited to stoops, balconies and to natural ground areas, terraces, pools and patios which are landscaped and developed for active or passive recreational use, and which are accessible for use by occupants of the building.
    3. Arcades, porticoes, and similar open areas which are located at or near street level, which are accessible to the general public, and which are not designed or used as sales, display, storage, service or production areas.

  135. Yes. Go read the 5 City Audits 1993/94/95/05/09 detailing the massive records management errors. Easy to find and read.

    I have been ripped off 25 grand +.

  136. This is actually an issue. Ignore that the Spindlers are landlords from Orinda. Recognize there are plenty of low-income families hit by this arbitrary taxation (I know of one at least and I’ve barely started looking, still waiting on data from the city).

    I’m pushing hard on this because I’m an attorney with the capability to do so, and I know that the issue is sufficiently complex that without strong advocacy it would not get resolved.

    Do me a favor, run the calculation for your own property (the “Basic Math” section, happy to help if you get stuck). If you discover you’re being taxed more than you previously thought and still think it’s not an issue, then we’ll talk.

  137. Berkeleyside, (Kate) as a follow-up can you ask the city of Berkeley if open air decks are included in this farcical and mysterious calculation? Our place is just shy of 1500 sq ft on Alameda records but the City of Berkeley is using 1978 sq ft? We can’t figure out where the extra is coming from AND we are on a slab.

    As much as one may think a deck is usable, it isn’t usable to protect from the elements. This may impact a whole other group of individuals who don’t have crawl spaces or garage spaces.

    Let me know what you come up with.

  138. 12/15/2019
    Ann-Marie Hogan, City Auditor
    Subject: Audit: Improved Workflow Systems Will Help Ensure Property Taxes are
    Adjusted for New Construction

    Recommendations and City Manager’s Responses

    Recommendation 3.5 was: “The City Manager should consider whether increased accuracy and efficiency of special tax calculations is worth the cost of a special election to simplify the Berkeley Municipal Code definition of building square footage.”

    Quoted in the story are then-city manager’s response to this recommendation from the auditor.

    Full language below.

    Link to this report.
    https://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3_-_General/Property%20Taxes%20Adjusted%20for%20New%20Construction.pdf

    From Ann-Marie Hogan, City Auditor
    Recommendations and City Manager’s Responses

    3.5 The City Manager should consider whether increased accuracy
    and efficiency of special tax calculations is worth the cost of a
    special election to simplify the Berkeley Municipal Code definition of
    building square footage. The City Manager, with input from
    Planning, should consider aligning the definition with Planning’s.
    The City’s practice of using square footage for more equitable
    distribution of the special tax would not change.
    The City Manager agrees with the recommendation. The City Manager,
    with input from Planning, will perform an analysis to consider whether the
    current methodology should remain, or if a change would benefit the City.
    Recommendation will be implemented by October 2010.

    The City Manager agrees with the recommendation. The City Manager,
    with input from Planning, will perform an analysis to consider whether the
    current methodology should remain, or if a change would benefit the City.
    Recommendation will be implemented by October 2010.

  139. Is this actually an issue, or is it just two privileged landlords living it up in Orinda, raising a stink?

    Does “TheDude” (now “David”) post a lot on this topic just because he/she really, really cares?

  140. Best of luck fixing that independent error. Don’t forget to ask for a refund of the past 4 years.

    “my dirt floored cellar with 6 feet of head clearance counts” – agreed, that’s something that should clearly be taxed. It qualifies as “usable space” (as “storage space”) under the BMC definition that the city refuses to apply to the special taxes.

  141. IF council agrees with Berkeley Neighborhood Council request for a public hearing on this matter, then the errors and omissions in this article will be remedied.

  142. I asked the city for the usable space of our property and the finance department sent me a photo of the handwritten card the city uses as reference for usable space. The number on the card was the result of a calculation – a sum based on a hand sketch on a piece of graph paper. The number was crossed out and a lower number was written in its place, indicating the garage (unheated, concrete walls) had been removed from the original calculation. This number was “agreed to by the homeowner” at the time, according to the finance department.

    I have accurate current measurements made recently. CAD allows you to make more accurate calculations and to calculate the area of a quadrilateral (don’t ask!). The city did the math wrong to figure out the floor areas, then added the wrong numbers to get their current number. It’s 500 square feet too big. I am trying to correct it. I have no wiggle room for “usable space”, which is fine; the error I want to correct is an error in multiplication from multiple decades ago.

    The city needs a clear definition of usable space – it can be anything and does not need to comport with zoning or the IBC, but it needs to be clear and consistently applied. If, for example, my dirt floored cellar with 6 feet of head clearance counts, I should be able to pour a slab floor that yields 5 feet of head clearance and have that space removed from my tax calculation.

  143. “The different definitions make actually absolute sense to me.” – The problem isn’t that the city has a different definition of taxable space (including basements that the county doesn’t). The problem is that the definition of “usable basement”, as applied by the City, is vague and unclear. Mainly, there is NO definition. It’s just “usable basement or cellar” with absolutely no explanation of what that is.

    The Spindlers are not a very sympathetic plaintiff I agree.

    I know of much more sympathetic plaintiffs in basically the same situation. Longtime property owners who have no independent wealth, but are paying an extra $1,000/year for an unfinished crawlspace.

    Don’t get hung up on the particular plaintiff in the Spindlers. Recognize that anyone can have a crawlspace that’s somehow categorized as a “usable” basement by the City.

  144. City spokesperson Chakko said the recent attention on taxes is leading Berkeley to take a closer look at how it presents this information to the public. – “If we can improve this system we’re going to see if we can do it,” Chakko said. “We want to try to figure out a way to make it easier.”

    Maybe try putting the tax basis on the property tax statements, or somehow notifying homeowners of the tax basis.

    Many are probably like me, blindly assuming the city wasn’t taxing our crawslpaces and completely unaware of the difference.

    My guess is you won’t do that, because you know you’ll get more requests for refunds and downassessments than the reverse. Doesn’t matter. Informing taxpayers of the basis on which they’re being charged is the morally right thing to do.

  145. Just the citation of the “usable space” definition was cut off, the final sentence is actually very important to the debate. Full citation below, you left off the “storage areas with…” aspect.

    “Usable Space: Any portion of a building or structure which is designed to be or can be used as habitable space, which has finished walls (sheetrock or plaster) and/or is heated with any fixed furnace or central heating system, including bathrooms, halls, garages and laundry rooms. Storage areas with over six (6) feet of vertical space shall also be considered usable space.”

  146. LOL “Chakko said the city hasn’t documented widespread errors. However, if property owners believe there are mistakes in their city tax bills they should contact the city finance department, he said.”

  147. The real headline: Berkeley taxes, but refuses to define, usable basements.

    Unlike the original headline, this new headline focuses on the actual controversy. Namely, what is a “usable basement.”

    The original headline suggests that the controversy is the legal right of the city to tax usable basements. It’s really not. The city would clearly have that authority, if they defined what a usable basement was.

    Based on the comments from those not familiar with this dispute, I get the impression the article is not conveying this distinction.

  148. Government asks “Can we tax more?”
    Government replies “Yes we can”

    Up to 400 sq ft on a typical RV. Tax that.

  149. ohhh someone cant squeeze enough money out of their rental property. To bad. My compassion with the Spindlers is rather limited.

    The different definitions make actually absolute sense to me. While you cant sleep in some basements or rent it out like the Spindlers you most certainly can use it as a hobby room, storage room etc…

  150. Just wait until all of the taxes pile up this year. Three measures this spring from the school district + multiple monsters from the city next fall. Much of this will be absorbed by pensions even if that isn’t said

    Council is already violating its own budget principles by directing excess transfer taxes to purposes other than capital (infrastructure) projects.

    Oh, and not all of the bonds from existing measures have been issued yet, so the cost there will go up further when that happens.

    Meanwhile the city is falling apart and the non profits are profiting handsomely. The Director of the non profit that runs pathways helped her self to a 57% raise since that project launched.

  151. One giant part missing from this write-up. The due process requirements.

    My problem is that it’s unclear what spaces count as “usable basements or cellars” and that the city is using it’s subjective opinions to decide what spaces to be taxed.

    As noted at least in: https://law.justia.com/cases/california/court-of-appeal/4th/97/483.html

    A tax law is void for vagueness:
    1. “if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits [or] if it authorizes or even encourages arbitrary and discriminatory enforcement.” or
    2. if it does not “prescribe a standard sufficiently definite to be understandable to the average person who desires to comply with it.”

    My basic argument is that without the definition of “usable space” (which the author miscited BTW and the city refuses), the tax on “usable basements or cellars” is likely void for vagueness.

    The courts have agreed with the city so far, but have not been presented with these arguments.