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Judge Rules Against Motion for Injunction In FP-5 Case

Published April 5th, 2019

FP-5 Special Tax One Step Closer to Appearing on November 2019 Property Tax Bill.

Tuesday, April 2, 2019

In a written decision, San Bernardino County Superior Court Judge Donald Alvarez allowed the County of San Bernardino to move forward with its plans to exact the additional tax associated with the expansion of Fire Prevention Zone Five (FP-5).

In October 2018, the County Board of Supervisors approved a resolution to expand FP-5. The expansion added all 19,073 square miles of unincorporated county land to the fire zone and came with a special tax of $157.26 per year with a likely increase of 3% every year. The resulting $26.9 million tax windfall was to cover, in part, County Fire’s projected $29 million budget deficit.

The county’s argument for imposing this additional burden almost entirely on unincorporated residents is a curious one. The county maintains the unincorporated areas are not paying their fair share for fire services. Unincorporated landowners, along with citizens of Grand Terrace, Twenty Nine Palms and Yucca Valley see it differently. Since 2015 County Fire has gone on an acquisition spree. Via annexations approved by San Bernardino’s Local Agency Formation Commission (LAFCO), County Fire added a projected $47.3M to its budget requirements by taking additional emergency service responsibilities in the county. 90% of that funding was planned to fund operations in Upland and San Bernardino City. In consequence, staffing for County Fire increased markedly in the Valley Region and administrative functions while it decreased in the Desert and Mountain Regions. Citizens in these unincorporated areas rightly question why they are forced to support this arrangement.

Owners of undeveloped land are particularly galled by the additional tax. Cal-Fire, a state agency, has primary firefighting responsibility on undeveloped land in the state. Why are they required to contribute extra to the county coffers when County Fire is not primarily responsible to fight a fire on their land?

The Red Brennan Group, an organization established to further fair and efficient government, partnered with a coalition of landowners and civic organization to challenge the FP-5 expansion in court. The coalition contends the county, among other illegalities, violated Article XIIIC of the California’s Constitution.

“No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote.”

In an attempt to suspend collection of the tax, The Red Brennan Group’s legal team submitted a motion for preliminary injunction with the intent to halt the tax while the lawsuit progressed. Judge Alvarez denied the motion based on a multi-part legal test.

Judge Alvarez was bound by an overly broad decision of California’s Fourth District Court of Appeals. In Sunset Beach v. Orange County Local Agency Formation Commission the court upheld a 133 acre “island annexation” of Sunset Beach into the surrounding city of Huntington Beach. The county’s approach in the FP-5 expansion is an extreme test of the Sunset Beach case. The county proposes using a Fire Zone originally established to cover 5.6 square miles around the small desert community of Helendale to “swallow” 19,073 unincorporated square miles of the county. While Judge Alvarez noted the difference is “significant” he wrote that the Plantiffs fail to “…adequately explain why Sunset Beach, with its strong and broad language … is inapplicable here.”

A second factor the judge considered is the so-called “pay first, litigate later” clause in the constitution. Essentially, this clause requires payment of the tax prior to a party bringing suit against the government organization levying that tax.

The third factor Judge Alvarez considered was, essentially, a technicality. The Plaintiffs failed to complete a “reverse validation” action. In layman’s terms, Plaintiffs must inform the public they are suing a public agency within 60 days of the action. Missing this step, according to California Code, means the “…public agency’s action is forever immune from attack ‘whether it is legally valid or not.’” The court did, however, offer a lifeline. Tom Murphy (760) 810-5830 tmurphy@redbrennan.org 2 Judge Alvarez wrote “…it is possible for Plaintiffs to circumvent this requirement upon a showing of ‘good cause.’”

In a perplexing move, Judge Alvarez brushed over the Plaintiffs equal protection claim. Numerous unincorporated residents contacted The Red Brennan Group and expressed dismay over the county’s so-called protest procedure. Many claimed they never received the protest notification letter while others indicated the letter so closely resembled junk mail they may have discarded it. Significantly, the notification letter did not include the needed protest form. Recipients were required to locate a form either by navigating to a webpage or “Dialing 211.” Although the Plaintiffs claimed this shoddy process violated the equal protection guaranteed by the U.S. Constitution, Jude Alvarez’s opinion only mentioned the claim in passing.

A ruling favorable to The Red Brennan Group’s request would have forced the county to table collection of the additional tax as the underlying case grinds its way through the court system. With the denial of the motion, the tax remains slated to appear on the November 2019 property tax bill of affected county residents.

Tom Murphy, spokesman for the organization, stated “This ruling is by no means the final word on FP-5. While this is a disappointing result, it is a skirmish in the larger legal battle. The heart of our coalition’s concern is – will elected leadership of the county, together with the justice system, allow the county’s bureaucracy to run roughshod over the constitutional rights of its citizens? Constituents should send a clear message to the county supervisors. The board’s 3-2 decision in favor of FP-5 expansion was dead wrong, the people are taking note and county leadership should reverse course.”

Murphy went on “The intent of California voters via Proposition 13, 218, and 26 is crystal clear. For the past 41 years the people of this state have reiterated their right to control their own pocketbooks. The county bureaucracy clearly has something on its mind other than common-sense governance. If our household budget is in the red, what do we do? We tighten our belts, cut back on unnecessary items, identify effective economies. Not so at the county. County departments, particularly County Fire, come to the table and simply ask for more – and the elected officials hand it over. According to the State Controller’s website, county property tax revenue increased 21% between 2010 and 2017. Why did County Fire’s budget request increase 40% over the same period? Rather than insisting the bureaucracy control its spending, county elected officials go along with a scheme clearly designed by a member of the apparatchik to circumvent the California Constitution and the voter’s expressed will.”

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For further information contact: Tom Murphy The Red Brennan Group tmurphy@redbrennan.org (760) 810-5830 Additional detail and legal filings are located at https://redbrennan.org/fire-prevention-zone-five-expansion/