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 Protection Zone Five, which was originally formed more than a decade-and-a-half ago to defray the cost of providing fire suppression and prevention service to the desert communities of Helendale and Silver Lakes, to include all unincorporated areas of San Bernardino County.
In October 2018, the San Bernardino County Board of Supervisors approved a resolution to expand Fire Protection Zone Five. 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 percent every year. The resulting $26.9 million tax windfall was to cover, in part, the county fire division’s projected $29 million budget deficit.
The county’s argument for imposing the additional burden almost entirely on unincorporated residents arises from the county’s contention that 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 the county fire division has gone on an acquisition spree. Via annexations approved by San Bernardino’s Local Agency Formation Commission, the county fire department added a projected $47.3 million to its budget requirements by taking additional emergency service responsibilities in the county. 90 percent of that funding was planned to fund operations in Upland and San Bernardino City. In consequence, staffing for the county fire department increased markedly in the valley region and for administrative functions while it decreased in the desert and mountain regions. Citizens in the unincorporated areas have questioned 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. Owners of these remote and mostly unimproved properties question why are they required to contribute extra to the county coffers when the county fire division 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 Fire Protection Zone-5 expansion in court. The coalition contends the county, among other illegalities, violated Article XIIIC of the California’s Constitution, which states, “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 a 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 Fire Protection Zone-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 plaintiffs failed 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.’”
Judge Alvarez did, however, state that “…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 Fire Protection Zone-5. While this is a disappointing result, it is a skirmish in the larger legal battle. The heart of our coalition’s concern whether the elected leadership of the county, together with the justice system, will 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 Fire Protection Zone-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 the county’s fire division, 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 percent between 2010 and 2017. Why did the county fire department’s budget request increase 40 percent 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.”