Nearly a year-and-a-half after San Bernardino County residents voted to rescind the application of a fire service tax to cover 95 percent of the county’s 20,105-square mile expanse only to see that measure invalidated by the county government’s legal challenge of the initiative, the public interest group that sponsored it has again qualified another ballot measure to prevent the county from continuing to impose the assessment.
Fire Protection District Service Zone Five, known by its acronym FP-5, was originally formed in 2006, as a construct for the county fire department to provide the communities of Silverlakes and Helendale, an area of 5.6 square miles with a current population of 6,347 located in the Mojave Desert between Victorville and Barstow approximately five-and-a-half miles west of the I-15 Freeway, with firefighting and emergency medical service. The creation of FP-5 carried with it the annexation of Silverlakes and Helendale into a fire service assessment zone, which required that landowners within those two communities’ confines pay yearly assessments to defray the cost of the fire department’s operations therein.
Between 2015 and 2017, four of the county’s incorporated municipalities – San Bernardino, Twentynine Palms, Needles and Upland – at the direction of their respective city councils, closed out their traditional municipal or local fire departments and had the entirety of their city limits annexed into FP-5, entailing each parcel owner in those jurisdictions paying an annual assessment of approximately $150 to have the county fire department provide those communities, under the auspices of FP-5, firefighting and emergency medical service. In each of those four cases, the existing local or municipal fire departments were shuttered.
In 2018, a proposal to expand FP-5 to cover 19,073 square miles of unincorporated land in the county along with the cities of San Bernardino, Twentynine Palms, Needles and Upland was made and ultimately approved by a 3-to-2 vote of the board of supervisors in October of that year. As in the cases of San Bernardino, Twentynine Palms, Needles and Upland, residents were not given the opportunity to vote on approving the annexation of their community into the assessment zone/service zone. Those transitions were procedurally effectuated by the conducting of a so-called protest process. During a one-month period, those landowners or residents to be annexed into the annexation zone were invited to lodge a written protest against the annexation. If 25 percent of the residents or voters or landowners in the areas to be annexed had mailed or otherwise delivered a protest letter to the government, then a vote on the formation would have been held. If fifty percent or more had made a written protest, then the annexation would have been nixed outright. Since fewer than two percent of the citizenry offered any protest, the 2018 annexation of the entirety of the county’s unincorporated area into FP-5 proceeded without a hitch. Essentially, any resident, landowner or registered voter in one of the districts to be annexed who did not lodge a protest in effect casted a vote in favor of the zone expansion.
Thereafter, the Red Brennan Group, a taxpayer advocacy collective named after World War II U.S. Navy submariner and governmental accountability crusader Kieran “Red” Brennan, inserted itself into the matter, asserting that the county’s blanket annexation of the county’s remaining unincorporated county areas other than Helendale and Silverlakes into the FP-5 Assessment District using the protest process was not a vote and was thus unconstitutional, violating that element of the California Constitution that was enacted with the voters’ approval of Proposition 218, which requires that any new special tax must be approved by a vote of those who must pay it. The Red Brennan Group set about gathering signatures to place an initiative on the ballot that would ask the voters whether the FP-5 assessment should be applied to the entirety of the county’s unincorporated areas.
In an attempt to derail the Red Brennan Group’s effort, the county government’s legal representatives in the summer of 2019 imposed on the repeal petitioners a requirement that they obtain 26,184 signatures to qualify the measure for the ballot, a threshold the county would subsequently acknowledge was more than three times the actual number of signatures – 7,353 – needed to qualify the ballot measure. Ultimately, after it had gone to tremendous expense imposed upon it by the county’s legal team’s application of a standard it knew ahead of time it was not legal to apply, the Red Brennan Group qualified the measure, which was designated as Measure U, calling for the repeal of the FP-5 assessment from everywhere it was applied other than Helendale and Silverlakes, for the November 2020 ballot.
In the run-up to the 2020 election, the union representing the county’s firefighters campaigned vigorously, maintaining that withdrawing the funding that the expanded FP-5’s fire service area represented would severely compromise public safety throughout the county’s rural areas. The public found that dire warning convincing enough to result in Measure U failing, with 109,483 county residents or 47.97 percent of those participating supporting it and 118,772 or 52.03 percent opposing it.
The Red Brennan Group’s leadership, yet convinced that the county had made misrepresentations about the necessity and validity of the FP-5 expansion and sincerely believing the county board of supervisors’ straight out violated the basic tenet in the California Constitution granting taxpayers the right to ratify by a majority vote any taxes they are going to pay with its use of a protest process to expand the boundaries of the FP-5 assessment zone to cover all of the county’s unincorporated areas, in 2021 pressed forward with another effort to qualify an initiative for the June 2022 ballot challenging the FP-5 expansion. The group succeeded in gathering a sufficient number of signatures to put another version of Measure U on the June 2022 Primary ballot, one designated as Measure Z, after the registrar of voters certified that enough valid signatures had been affixed to the petitions seeking the initiative. Thereafter, however, 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 maintained, since in previous legal sparring over FP-5, San Bernardino Superior Court Judge Donald Alvarez made specific references to court precedent in other jurisdictions in California whereby the language in the California Constitution requiring a two-thirds vote on general or special taxes was held to not apply in circumstances involving annexations into previously existing assessment districts, as is the case with what San Bernardino County did with FP-5, 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. On March 29, 2022, 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 there was an April 1, 2022 deadline for printing the June 7, 2022 ballots, 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, 2022, after the appeals court denied the petition from the Red Brennan Group and lifted its earlier stay, Judge Cohn ruled that the imposition of FP-5 using the protest vote process was constitutional. Thus, Judge Cohn ruled, even if the voters on June 7, 2022 passed Measure Z, the rescission of FP-5’s applicability to all other unincorporated areas outside of Silverlakes and Helendale will not stand.
On June 7, 2022, with 27,554 votes or 58.69 percent in favor of it and 19,395 or 42.31 percent opposed to it, Measure Z succeeded democratically at the same time that it was being thwarted legally.
The Red Brennan Group appealed Judge Cohn’s decision to the California Fourth District Court of Appeal. Rather than simply waiting for a ruling on the matter, however, the Red Brennan Group reformulated another ballot measure calling for the rescission of Fire Protection District Service Zone Five and set about gathering signatures on a petition to put it on the ballot next year.
Word came this week that the San Bernardino County Registrar of Voters Office, having examined the petition and the signatures, including doing an in-depth analysis of a sampling of the signatures, has reached the conclusion that the measure qualifies for the ballot.
In a letter dated October 13, 2023 to Robert Cable, David Jarvi, Ruth Musser-Lopez and Albert Vogler, who served as the initiative proponents on behalf of the Red Brennan Group, San Bernardino County Registrar of Voters Stephanie Shea, referencing “the petition entitled ‘Initiative To Repeal The Special Tax For San Bernardino County Fire Protection Zone FP-5’,” stated, “The Registrar of Voters has found the petition to be sufficient.”
Shea attached to the letter her office’s “Certificate of Initiative Petition,” dated October 10, 2023. That document states that the raw count of signatures on the petition totaled 11,255 and that the number of valid signatures needed to qualify the petition was 6,727. According to the certificate, the registrar’s office took a sampling of 500 of those signatures selected randomly, determining that 375 of them were valid signatures of registered voters while 125 of them could not be validated. Extrapolating on this sampling showing that 75 percent of the signatures examined were determined to be valid, the registrar’s office projects that 8,441 of the signatures submitted are valid, and the petition therefore is sufficient to qualify the initiative for the ballot.
At present, the special FP-5 assessment stands at $165.83 per parcel and generates $43.981 million for the county’s fire department annually.
-Mark Gutglueck