Inside Bay Area

Santa Clara County judge allows Valley Water District's $543 million tax to stand, despite technical glitches

by Paul Rogers

March 4, 2013

Close is good enough.

That's the ruling from a judge who has rejected a lawsuit by a taxpayers' group that sought to overturn a $543 million parcel tax approved by voters in November on the grounds that the Santa Clara Valley Water District didn't provide 24 hours' notice for a meeting to place the item on the ballot.

Instead, the district, a government agency based in San Jose, provided 23 hours of public notice in posting the agenda of its Aug. 8 board meeting. California's open meetings law, known as the Brown Act, requires a minimum of 24 hours.

Nevertheless, the mistake was "a mere technical deficiency," said Santa Clara County Judge Kevin McKenney, and does not overturn the results of the election.

"Even with this slight deviation from the statute, the objectives of the Brown Act are served in giving sufficient notice of the special meeting to allow public participation," wrote McKenney, in his decision filed Feb. 11. "To find otherwise would be placing form over substance."

The ruling came as a major victory for the water district, which provides flood control and drinking water for 1.8 million Santa Clara County residents.

"We're pleased. This finally puts it to bed," said water district spokesman Marty Grimes. "We can continue to go forward with the Clean, Safe Creeks program that the voters supported. It's good news."

Santa Clara County voters approved the program, Measure B, by a 74-26 percent margin. The measure continues an existing parcel tax for another 15 years, for flood control, dam upgrades and other projects. The tax currently costs $54 a home and will increase by up to 3 percent a year.

Opponents, led by the Silicon Valley Taxpayers Association, argued that the water district has wasted public money in recent years on high salaries, rich benefits and questionable projects, from hiking trails to a $1.4 million gazebo in Alviso. The group said it is disappointed by the judge's ruling, and has not decided yet whether to appeal.

"Clearly, the deck is stacked against us," said Mark Hinkle, president of the Silicon Valley Taxpayers Association. "Twenty-four hours means 24 hours. In what world does 24 hours not mean 24 hours? In the government world, I guess."

The water district was forced to hold a special board meeting Aug. 8 to make minor changes to the text of the ballot language after county elections officials announced that when the district first turned in language two days earlier, it contained 77 words. State law allows only 75. Rushing to meet an elections deadline, the board held a quick, 3-minute meeting and cut two words out.

The taxpayers' association pounced.

The leader of a top open government records group on Monday said the ruling makes sense.

"There is a slippery slope argument -- if 23 hours is good enough, what about 22, or 21?" said attorney Peter Scheer, executive director of the First Amendment Coalition in San Rafael. "But it's also important to take a step back and be discriminating and look at the context. What you would be doing if you void this thing is frustrating the will of the voting majority, and that's not nothing, without any evidence the majority was misled or confused because of the 1-hour time difference."

Paul Rogers covers resources and environmental issues. Contact him at 408-920-5045. Follow him at

This article is also available at the Web site of Inside Bay Area, here.

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