HJTA Lawsuit Fails: RM3 Further Cements Calling a Tax a Fee

On April 3, 2019, San Francisco Superior Court Judge Ethan Schulman upheld the $3 increase in Bay Area bridge tolls called for by Regional Measure 3. A good article on the matter appeared on the San Francisco Examiner on April 8. RM3 was approved by voters in June of 2018, and on July 5, 2018 the Howard Jarvis Taxpayers Association filed a lawsuit against the Bay Area Toll Authority and the California State Legislature, based primarily on the constitutionality of calling RM3 a fee instead of a tax. As the Nine-County Coalition noted in our article on the lawsuit and subsequent updates, the HJTA was not alone claiming RM3 was a tax requiring 2/3 voter approval dressed as a fee requiring only majority approval.

Judge Schulman disagreed with the HJTA and issued two orders, one addressing the Bay Area Toll Authority and the other addressing the State Legislature. The State Legislature was named in the lawsuit as the entity that passed Senate Bill 595 which enabled RM 3.

The BATA Order declares,

Article XIIIC, section 1 of the California Constitution applies only to taxes imposed by local governments. Because Defendant California State Legislature imposed the challenged toll increase by passing SB 595 and because BATA is a regional entity charged with implementing that state mandate, Article XIIIA, Section 3 of the Constitution applies to this state-imposed charge, not ArticleXIIIC, Section 1.

The State Legislature Order declares,

The Legislature has met its burden to show the applicability of the exception for “entrance to the use of state property” from the general definition of “tax” in Article XIIIA, section 3(b)(4) of the California Constitution. Therefore, the toll increase imposed by SB 595 is not a tax subject to the two thirds supermajority vote requirement.

Ultimate Power More Than Ever Now Rests at the Ballot Box

HJTA decided not to appeal the case given the risk of an appellate court supporting the findings of the San Francisco Superior Court, and thus rendering the decision citable, that is available for citing in future cases.

Thomas Jefferson

Judge Schulman’s decision reinforces what the Nine-County Coalition feared at the time of both Regional Measure AA and Regional Measure 3. First, regional “laws” that willy-nilly apply to all nine Bay Area counties are unchartered territory and subject to wide interpretations by the courts. Secondly, uncontrolled dressing of taxes as fees will no doubt lead to uncontrolled taxation. Thirdly, ultimate control rests with the people at the ballot box, and if voters are aware only of arguments made by tax and spend contingents, tax and spending will prevail.

The decision in favor RM 3 implies the $3 bridge toll increase is just like any other fee charged for “entrance to or use of state property.” Taxpayers have no say in how much they have to pay to use a state park. Based on Judge Schulman’s decision, they might end up with no say in how much they pay to cross state-owned bridges. But the difference here is that a lower-income worker can do without visiting a state park if he or she cannot afford the entrance fee, but the same would not hold true if the worker needs to cross one of the Bay Area’s state-owned bridges in order to make a living.

Climate Change Conundrum: Can I Save the Planet and Keep My SUV?

Yes, Climate Changes

“Climate change” has turned into a battle cry. Climate activists say we are all doomed unless we drastically reduce global CO2. Climate deniers say human activity has little or nothing to do with climate change. Then there are those in the middle that say “Can I save Mother Earth and still keep my SUV?”

How many folks are in each camp is hard to say. However, a quick search on the Internet results in nearly 100% hits in favor of “climate change” being caused by human activity, more specifically activity that has raised CO2 and methane levels since the Industrial Revolution and particularly since the 1950s. The prescribed remedy is to implement government mandates to reduce CO2 to specific levels. Another quick search on the Internet reveals that as of 2018, very few countries of the 195 that signed on to the Paris Agreement reached their CO2-reducing targets.

A layperson might tend to guess that there are a lot of climate activists talking a lot about reducing CO2 through legislation and regulation but hanging on to their SUVs, their abundant manufactured goods, and their comfortable life styles. The more astute activists, such as those in California, show how climate-responsible they are by exporting their polluting activities -- natural resource extraction and manufacturing -- to other countries while continuing to be voracious users of resources and goods.

How about the climate deniers? They are out there, but apparently unable to state their case as efficiently as climate activists. Their pronouncements often contribute to their looking as if they have gone over to the Dark Side, along with Wall Street and bad polluters. For example, climate deniers are correct when they say climate change is mostly a result of natural events. When compared to city-sized blocks of ice barreling down from the Earth poles at the end of the last Glacial Period, a couple of feet in sea-level rise do not seem like a lot. But the two feet of water might be sitting on somebody’s living space at some point in the future. Not good.

On its website, NASA (the people who put a man on the Moon) quotes numerous studies on volcanic eruptions, heat plumes, solar activity, and many other natural events that cause glaciers to break up and/or melt and sea levels to rise. However, what today we call “climate change” is a separate issue. NASA says,

The heat welling up from Earth’s interior beneath ice sheets and glaciers has nothing to do with the relatively rapid change in climate over recent decades, driven mainly by human emissions of greenhouse gases that warm the atmosphere. Heat sources from the deep Earth can remain steady for 50, 90 or 100 million years; human-driven climate change is occurring over mere decades and centuries.

The “human-driven climate change” of which NASA speaks is today blamed for placing coastal areas at risk of sea- level rise and intensification of weather conditions, both of which come with human and economic pain. For example, at this moment farmers in the Midwest are facing “unprecedented” rainfall that flooded their farms and destroyed their crops. Their long-neglected levies did not stand up to the onslaught of rising waters.

What Now?

Kids’ Climate Strike 2019

Kids’ Climate Strike 2019

When we do not see planned for or anticipated results, most of us would change strategies. Not so climate activists. They double down. United Nations Climate Action leads the persistence.

Climate change is the defining issue of our time and now is the defining moment to do something about it. There is still time to tackle climate change, but it will require an unprecedented effort from all sectors of society. To boost ambition and accelerate actions to implement the Paris Agreement on Climate Change, UN Secretary-General António Guterres will host the 2019 Climate Action Summit on 23 September to meet the climate challenge.

Why would the 2019 Climate Action Summit succeed when previous summits, accords and pledges failed? Why would the same strategies that failed in the past succeed in the future?

Why the Failures?

It seems that climate change has been a “defining issue” for a while now, and still needing “unprecedented effort.” How much more effort? What will we be asked to give up besides our cars, backyards, inexpensive plastic kids’ toys and, livelihoods? Plans fail when their present costs are perceived to outweigh their future benefits.

Climate change suffers from another human frailty: the temptation to never let a crisis go to waste. Many are riding on the coattails of a desire to save Mother Earth from an untimely demise. Both profit-generating transit-oriented development and ultra-progressive green new deals claim they are essential in fighting climate change. Both deals are experiencing pushback.

How About a Plan B?

The fight against climate change has so far focused on actions by the United Nations, the governing bodies of individual countries, and a vast bureaucracy. A Plan B could try to change that focus by increasing awareness of what voters, residents and businesses can do for themselves. For example,

* Voters can demand that their legislators shift spending of taxpayer money from non-productive endeavors, such as copious subsidies to specific sectors, to productive physical infrastructure that benefits everyone. Strong and well maintained levies, bridges and roads would have protected our Midwestern farmers more than UN pronouncements on “sustainability.”

* Consumers and investors can shun and shame businesses that do not invest in mitigating the pollution their operations generate.

* Businesses can devise strategies to operate successfully in the face of change. They study and strategize for changes in consumer preferences, population numbers, and capital availability, so why not strategize for changes in climate? Our Midwest farmers, for example, would have benefited from private flood insurance and grain storage designed with floods in mind.

* People can take responsibility for not building adjacent to tinder-dry vegetation or right in the middle of flood zones. Green vistas are beautiful but can be deadly. Views from a beach-front condo are lovely but can be risky.

Plan B can add to individual expenses, but so can boondoggles in Plan A, such as the Bay Area’s Measure AA and California’s Senate Bill 50. We need to see taxes and fees as personal expenditures not social contributions.

Horizon Initiative: Complex Incubator for Plan Bay Area 2050

The Nine-County Coalition website has discussed the phenomenon of “mission creep” as it applies to government projects – often projects grow in scope and cost way beyond their stated initial objectives. September of 2018, we said the following in MTC/ABAG Horizon Initiative: Mission Creep Part II about the evolving iterations of Plan Bay Area,

Horizon is the latest development, and each development advances central planning and regionalism one notch above the previous development, leaving a solid trail of seemingly irreversible strategies. The Horizon Initiative intends to promote “the exploration of innovative strategies and solutions for issue areas that have been outside of the scope of past Plan Bay Area long-range planning processes.”

March 8, 2019, the Metropolitan Transportation Commission and the Association of Bay Area Governments released Futures-Interim Report: Opportunities and Challenges. This report details how Horizon expanded the regional planning process to include simulation modeling that incorporates complex “external forces,” such as immigration and trade, national growth, national taxes and funding, national environmental policy, new technologies, and natural disasters. All these variables modeled under three distinct scenarios, but all scenarios contained the possibility of a magnitude 7.0 earthquake.

* Clean and Green – Immigration similar to today, higher national taxes and funding, national growth similar to today, housing more urban, jobs more dispersed, stricter national environmental policies, widespread new technologies.

* Rising Tides and Falling Fortunes – Reduced immigration and trade, lower national taxes and funding, limited national growth, housing more urban, job dispersion similar to today, relaxed environmental regulations, more limited technologies.

* Back to the Future – Increased immigration, national taxes and funding similar to today, rapid national growth, housing more dispersed, jobs more urban, national environmental policies similar to today, widespread technologies.


It would seem that for these complex scenarios to come close to reality at any point in time, regional planners would need to 1) be abreast of innumerable events occurring outside the region, 2) mix, separate, and combine these set of variables since nothing in life is set in stone, 3) find money to fund modeling at this level of complexity on an ongoing basis.

Assuming Horizon accomplishes 1), 2) and 3), we still need to be aware that any type of simulation modeling is as good as the model’s assumptions. There is such a thing as garbage in and garbage out! For example, are Horizon’s assumptions biased, are they designed to achieve a desired pre-determined outcome, and do they satisfactorily encompass possible scenarios?

Horizon’s three scenarios are constrained by the initiative’s Guiding Principles (affordability, diversity, regional transit connectivity, and conservation). Horizon’s objective is to achieve the best outcomes under any of the three scenarios given the initiative’s Guiding Principles. The Horizon Initiative will continue fine tuning its simulation modeling until June 2019.

California Senate Bill 50 Forges On

There was cause for celebration with the demise of Senate Bill 827 back in April 2018. It might have seemed then that California legislators had come to their senses and rejected the idea of dense housing along all rail and bus routes regardless of neighborhood. However, Scott Wiener, author of SB 827, vowed to be back with another version of SB 827, and he has. Wiener introduced Senate Bill 50 in December 2018, and at present, the bill is being considered in the Housing and in the Governance & Finance Committees.

SB 50 does not seem to be experiencing the visceral opposition organizations, cities and counties hurled at SB 827, in spite of the fact that SB 50 is even more problematic than SB 827.

This website discussed the basic downsides of SB 50 in CA Senate Bill 50: SB 827 Redux, on December 9, 2018. Today, March 18, 2019, as the bill makes its way towards Governor Gavin Newsom’s desk, we offer a few comments posted on various on-line venues by a variety of authors.

Heard on the Web

Finally, Happy News from City Hall: Council Motions Oppose Scott Wiener’s Senate Bill 50, CityWatch, March 14, 2019.

“The bottom line is that SB 50 and its local counterparts, like Transit Neighborhood Plans, are fancy real estate scams based on the same spurious free market assumptions and the same beneficiaries: commercial property owners and real estate developers. Furthermore, if adopted, both SB 50 and its local counterparts will fuel gentrification, without ever meeting its three politically-concocted goals: Increasing transit ridership, Increasing affordable housing, Reducing Green House Gases.”

Guest Opinion: SB 50 Undermines Single-family Neighborhoods and Diversity, by Greer Stone and Pat Burt, Palo Alto Online, March 15, 2019.

“Our greatest concern is the implications SB 50 will have for low- and modest-income residents. There is a myth that upzoning (changing zoning to allow increased building density) will lower the price of housing. Supporters argue housing is just an issue of supply and demand. However, according to two recent Chicago and New York City studies, upzoning has the inverse effect and actually leads to increased housing costs. They concluded that when land is rezoned for increased density, it becomes more valuable, and the price of housing and rents rise...

New market-rate housing does not create affordable housing for low- or moderate-income people, and building dense, luxury apartments in single-family neighborhoods will not have trickle-down benefits for those most in need. Rather than being a panacea for our housing crisis, it is a Trojan horse for big developers' profits.”

Support Grows for Bill That Would Legalize More Home Construction Across California, Reason, February 11, 2019.

“This year, Weiner [sic.] is gambling that the new SB 50, which is more modest in the kinds of development it would allow, and which makes several important concessions to powerful interest groups and will garner enough support to make it through the legislature.

Those concessions include a requirement that any developers taking advantage of SB 50's waivers pay a ‘prevailing’ wage, a gift to the state's labor unions.

The waivers could not be used on project sites that had rental housing on them within the last seven years. That provision is in response to critiques of upzoning from tenant advocates, who fear it will be used to tear down existing rental housing and replace it with bigger, more expensive units.

The more modest approach of SB 50 appears to be working so far. The State Building and Construction Trades Council—which represents construction unions at the state level—played a critical role in killing SB 827, but has since endorsed SB 50. Low income housing groups that came out strongly against SB 827 from the beginning are either holding their fire or even offering some muted praise of the bill.”

SB 50 – Opposition to Senate Bill, Westside Regional Alliance of Councils, Proposed Resolution, January 16, 2019.

“Whereas State Senate Bill 50 [Scott Wiener] weaponizes state government code to eviscerate local planning statewide and thereby increases financialization of land use; intensifies inequality; encourages predatory speculative activity; and masks massive wealth transfer by shifting property ownership opportunities away from small owners to corporate investors...”

Scott Wiener’s SB 50 is a WIMBY Bill, by John Mirisch, Vice-Mayor, City of Beverly Hills, Fox and Hounds, January 16, 2019.

“Zev Yaroslavsky, former LA County Supervisor and former LA City Councilmember, astutely noted that state senator Scott Wiener’s SB 827, which would take away local zoning authority from cities and replace it with Sacramento-mandated levels of density in certain areas, was a ‘real estate bill, not a housing bill.’

The exact same assessment should apply to SB50, Wiener’s latest iteration of SB827. And I can prove it.

Yaroslavsky famously took the acronym of the developer-funded YIMBY groups that supported SB827 (‘Yes in by back yard,’ which itself is derived from NIMBY, ‘not in my back yard’ — get it?) and put a new twist on it, describing the bill’s supporters as WIMBYs. That would be the acronym for ‘Wall St. in my back yard’.”

Welcome to Wienerville, by George Wooding, President of Coalition for San Francisco Neighborhoods, Westside Observer, March 2019.

“SB 50 will ruin cherished neighborhoods, severely gentrify working-class areas, significantly worsen housing affordability, and displace thousands of San Franciscans.”

Behind the Headlines, Mayor Pushes Back On SB50, March 8, 2019.

“Palo Alto Mayor Eric Filseth discusses with the Weekly his concerns with Senate Bill 50, which aims to boost California's housing stock, and his own ideas for addressing the state's housing shortage.”

[In this YouTube interview, Mayor Filseth notes the following: SB 50 would take away voters’ ability to control their cities, cities do have a responsibility to balance commercial real estate and housing, and the state legislature would better serve residents by regulating balance between commercial and residential development rather than mandating the number of housing units that must be built.]

In Summary

Senate Bill 827 was summarily dismissed during its first committee hearing, with committee members citing the bill’s aggressive takeover of local land use planning in transit-rich areas. Senate Bill 50 not only takes over land use planning around transit-rich areas, but also around job-rich areas with or without transit. However, SB 50 prominently appeases builders by mandating prevailing wages and appeases affordable housing advocates by supposedly adding more protections for existing tenants. We will see whether legislative committees are really concerned about aggressive takeover of land use planning, as they claimed to be in the case of SB 827, or they are more concerned about keeping powerful groups happy.

Meanwhile, whether or not developers, unions, and housing and renters’ advocates benefit from SB 50, remains to be seen. Cost of housing will not decrease if indeed cost has more to do with diminishing availability of land than increasing availability of housing units. The building-up-not-out strategy of current planners increases costs and prices, since costs increase with building height. Concessions to unions will increase prices by increasing labor costs. Concessions to affordable-housing advocates will shift prices from low-income to high-income units – or from rents to taxes – but will not decrease prices overall.

In Graphics: Welcome to Wienerville

Thank you to a Nine-County Coalition participant for sending graphics that offer a perfect visualization of the results of SB 50: Welcome to Wienerville.

Outgoing MTC Chair MacKenzie: Commissioners Serve the Region

The Metropolitan Transportation Commission recently experienced significant leadership changes. On March 1, 2019, Therese McMillan, replaced Steve Heminger as Metropolitan Transportation Commission executive director. Ms. McMillan’s most recent position was chief planning officer with the Los Angeles County Metropolitan Transportation Authority; however, previously to that position, she worked at the Bay Area’s MTC for 25 years. Scott Haggerty, Alameda County supervisor and vice chair of the MTC replaced Jake MacKenzie, Rohnert Park councilmember, as MTC chair. MTC chairs serve for two years, and Commissioner MacKenzie was elected as chair in 2017.

Although both changes at MTC are significant, the departure of Jake MacKenzie as chair is worth a few extra comments by the Nine-County Coalition.

At the MTC meeting of February 27, 2019, in which Scott Haggerty assumed the chairmanship, Jake MacKenzie spoke with emotion about how difficult the past few months had been for him and his family. He was “personally insulted” over his vote in favor of CASA by people who did not understand the role of an MTC commissioner is to think regionally, he said. Indeed, it is difficult to visualize how amicable and effective discussion can occur between MacKenzie, who thinks cities and counties need to accept their region as something greater than themselves, and Rohnert Park councilmembers, who place their city’s needs above those of the region.

Jake MacKenzie’s sorrowfulness over what he perceives as a lack of gratitude on the part of his fellow Rohnert Park councilmemebers exemplifies the conflict we at the Nine-County Coalition have been discussing. On a recent NCC article, we spoke about the Mayor of Rohnert Park expressing the feeling that Rohnert Park “did not matter” in Jake MacKenzie’s vote in favor of CASA.

MacKenzie will remain as MTC Commissioner, until, as he says, Rohnert Park councilmembers deem otherwise.

You can view Jake MacKenzie’s farewell speech as chair of MTC starting at 34.10 on the video linked to the MTC website below.

You can read more about Scott Haggerty’s assumption of the MTC chairmanship in Meter Madness, a site often recommended by the Nine-County Coalition.

California Senate Bill 43: Taxing the Poor

California Senator Ben Allen (Santa Monica) introduced SB 43 back in December, and the bill is now set for hearing on March 20, 2019.

What the Bill Says

This bill would require the state board [State Air Resources Board], in consultation with the California Department of Tax and Fee Administration, to submit a report to the Legislature on the results of a study, as specified, to propose, and to determine the feasibility and practicality of, a system to replace the tax imposed pursuant to the Sales and Use Tax Law with an assessment on retail products sold or used in the state based on the carbon intensity of the product to encourage the use of less carbon-intensive products.

* This bill is being presented as only a study. However, whatever the study comes up with, it would be logical to assume if legislators want to approve it and the Governor wants to sign it, there we have it.

* The study aims to determine how the current sales and use tax on goods – which needs voter approval for increases — could be replaced by an “assessment” on goods depending on their carbon intensity. Would an “assessment” need voter approval for increases?

* Common sense would most likely conclude that such an “assessment” on the carbon intensity of each product consumed by California residents would cost a bundle to implement and maintain, could result in endless argument and litigation, and would need to include a lot of guesswork. How would the Air Resources Board assess a child’s scooter manufactured in China containing a wooden platform, metal and rubber wheels, plastic handles, and colorful paint? What happens when the scooter manufacturer decides to replace the wooden platform with a plastic one?

Likely Results

* Assessments will be whatever bureaucrats say they will be.

* As with most taxes, the poor will once again be hurt the most.


MTC Commissioner Selection Coming to Light

Bay Area residents have been critical of how Metropolitan Transportation Commissioners are selected.  Most recently, the Nine-County Coalition wrote about the success of Solano County residents in forcing their council members to follow proper procedure in the Commissioner selection process.

Last week, February 15, the Bay Area Transportation Working Group (BATWG) sent to the MTC Commissioners a detailed report of violations made by the MTC and the county selection committees during the selection.  PDF of the report is attached here.  Introduction to the report states,

This BATWG report will set forth and describe recent instances where some members of the
MTC Commission were appointed to their four-year terms by Bay Area’s local and county
selection process that violated either the MTC Enabling Act or the Brown Act or both.
This unsatisfactory situation has evolved in recent years in part because MTC did not do all it
should have done to provide public information about the existence of the once-every-four-years
selection process and on how the public could observe and provide input to the proceedings.

The MTC Enabling Act clearly states that anyone with “special familiarity with the problems and issues in the field of transportation” may be selected for the MTC Commissioner position.  In order for a member of the general public to make himself/herself available for the position, selection meetings must be properly announced.  That does not often occur.

Also last week, February 14, Lafayette resident Jason A. Bezis filed demand letters with the Contra Costa County and the Santa Clara County Board of Supervisors to “Cure or Correct Brown Act Violations” at their selection meetings.  PDF of one of the letters is attached.  The aim of the Brown Act is to ensure residents are aware of what their public servants do on residents’ behalf.

In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

The point Mr. Bezis has made in his demand letters is that more often than not neither the MTC nor county selection committees observe the transparency requirements of the Brown Act.  This is unfortunate since, as BATWG noted,

… the decisions made by MTC Commissioners have a direct effect on the mobility and transportation choices of the 7.4 million people living in the nine MTC Bay Area Counties.

MTC Commissioners’ Meeting

MTC Commissioners’ Meeting

Housing Summits - Showing Up is Half the Battle

“Housing Summits” might be coming to your neighborhood soon.  Residents would want to be prepared to find out who is presenting the summit, attend, and participate in public comments.  A Nine-County Coalition participant suggested that summit commenters consider posing the following comments:

*  What each county pays by way of housing-related taxes and it gets in return.  Note there is a difference between benefit to each specific county and benefit to the whole region.

*  San Francisco Bay Regional Authority Measure AA and Bay Area Toll Authority/Metropolitan Transportation Commission Regional Measure 3 passed on regional aggregate totals, not county by county totals.  This process essentially nullifies the will of voters in those counties where the measure did not pass.

*  Legislation emanating from Sacramento supports the original edicts of Plan Bay Area and Transit-Oriented Development. Yet neither plan was ever approved by voters.

*  Private organizations and foundations lobby in favor of plans such as CASA and Transit-Oriented Development.  Who really benefits?

*  Considering that subsidized housing is a prominent requirement of Plan Bay Area, Transit-Oriented Development and recent legislation, what will be the status of purely private property in years to come.

One example of such summits is one on May 10, 2019, at the Hyatt Regency in San Francisco, with a non-member entry fee of $600, and the purpose as noted on the summit announcementWe are bringing together diverse representatives from all aspects of the land use and development lifecycle to deliver innovative solutions in the realms of financing, the cost of building, policy, and the public process.

Another sample is the summit on February 25, 2019, presented by Solano City County Coordinating Council.  Admission is free.  The summit announcement promises discussion on “the impact of new housing legislation and its proposed linkage to transportation funding,” “what the ABAG/MTC designed plan means for Solano County and your City,” and whether Solano will be a “beneficiary” or a “victim.”

Just showing up, some say, wins half the battle.

Victory for Solano County Residents

Kudos to Solano County residents for challenging their county leaders in the selection of MTC Commissioners. Their efforts were a partial victory, but a victory nonetheless. The Board of Supervisors agreed to follow proper procedure, but selected the same commissioner about whom concerns had been expressed. The Dixon Independent Voice published on February 8 the whole story, which we hope you will read and consider challenging your own city or county boards when something is being done in an unacceptable way.

Dixon's Independent Voice

The Independent Voice is published in print only at present. So we are attaching the article in PDF format.