Judge Says Measure Z Won’t Apply If It Passes

Taxpayer and government reform advocates will not be given a fighting chance to repeal a special fire district tax imposed on all landowners in the county’s unincorporated areas, San Bernardino Superior Court Judge David Cohn ruled on May 31.

This marks the third time the Red Brennan Group has been prevented from undoing the tax.

The Red Brennan Group, which was named after the late government efficiency and fair taxation advocate Kiernan “Red” Brennan, took up cause against the expansion of the Fire Protection District Service Zone Five (FP-5) assessment that was imposed on all of the landowners within the county’s unincorporated areas by the San Bernardino County Board of Supervisors in 2018, seeking to overturn the tax after the county used a protest validation to put it in place.

FP-5 was originally created to pay for fire prevention and emergency medical service in a 5.6-square mile area within the unincorporated desert communities of Silverlakes and Helendale in 2008. A decade later, the county floated the concept of applying it to the rest of the county outside the city limits of the county’s 22 cities and town limits of its two incorporated towns, a land mass equal to 94.87 percent of the 20,105-square mile county or 19,073 square miles. Under the protest process, the county’s residents were informed that they had 30 days to write letters contesting or protesting the imposition of the tax, amounting to an annual assessment of roughly $55 dollars subject to a three percent per year increase to defray the cost of fire protection service offered in most cases by the county fire department. If 5o percent plus one of the property owners/voters had mailed in such letters, then the assessment would not have been expanded to all of the county’s unincorporated areas. If 25 percent of the county’s landowners had protested the tax, then a normal election would have been held by which the vote would have been made at polling places and with mail ballots in which a yes or no question would have been posed to voters with regard to whether the assessment should be extended to roughly 19/20ths of the property in the county. Fewer than one out of ten of the landowners impacted by the tax was aware that the tax increase was being contemplated. As it turned out, less than three percent of the county’s voters posted letters of protest.

Measure Z supporters believe the tax is unfair and that the expansion should have been approved by a two-thirds vote of those affected as is typically required by the California Constitution.

The Red Brennan Group sued the county in the aftermath of the protest vote, maintaining that California’s Constitution required that any such taxing authority be approved by a two-thirds vote of those to be assessed.

In 2019, San Bernardino County Superior Court Judge Donald Alvarez ruled the challenge could not proceed as the two-thirds voter approval for general or special taxes didn’t apply to those imposed in annexations into an assessment district as in FP-5.

The Red Brennan Group gathered signatures to put a measure, later designated as Measure U, on the November 2020 ballot, calling for the repeal of FP-5. Measure U gathered 86,073 votes in favor, or 47.97 percent to rescind the assessment, while it was opposed by 97,060 voters or 52.03 percent.

The Red Brennan Group, convinced that the county had made misrepresentations to voters about the necessity and validity of the FP-5 expansion, worked to gather more signatures and put another version of Measure U on the ballot this year, one designated as Measure Z, after the registrar of voters determined enough signatures to do so had been gathered. The county and its fire district/fire department sued the county registrar of voters to prevent it from including Measure Z on the ballot.

In that lawsuit, the county/fire district/fire department asserted that the petition used by the Red Brennan Group was factually incorrect and had misled voters who signed it. The Red Brennan’s contention that the tax is unconstitutional was false, the county maintains, since Judge Alvarez’s ruling held otherwise, the county claimed.

Judge David Cohn, who considered the case, rejected the Red Brennan Group’s contention that the will of the requisite number of voters who had signed the petition had to be complied with, and he ruled in favor of the fire district. In March, Cohn made a finding that the petition misrepresented the fire tax as unconstitutional. The Red Brennan Group disputed that and filed a petition to a state appeals court. The appeals court, seeing that the deadline for printing the June 7 ballots was fast approaching, agreed to hear the matter and ordered that the ballots be printed with Measure Z on it.

The county pushed forward with its challenge of Measure Z. On May 31, Cohn ruled that his judgment that Judge Alvarez’s ruling that FP-5 is constitutional should be upheld was consistent with the law and case law, meaning that even if the voters on June 7 pass Measure Z, the rescission of FP-5’s applicability to all other unincorporated areas outside of Silverlakes and Helendale will not stand.

Despite Cohn’s ruling, it is anticipated that if Measure Z in fact passes, the Red Brennan Group will seek another appeal that will be intended to uphold the validity and applicability of the vote.

At present, the FP-5 assessment has risen to $161.98 per year. The board of supervisors and County Fire Chief Dan Munsey say the assessment is crucial to maintaining public safety, as it provides $42.7 million to the county, which offsets 18 percent of the county fire department’s annual budget. Munsey said he will close at least 15 fire stations around the county without the augmentation brought in by FP-5.

The Red Brennan Group and other taxpayer advocates hold that fire service is a basic governmental service that taxpayers already pay for through ad valorem tax property taxes and state sales tax and that the FP-5 assessment beyond the communities of Silverlakes and Helendale, where the residents actually approved it, amounts to double and illegal taxation.

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