1 Date: September 9, 2022
To: RHNN Board Members, David Thacker, Rick Johnson From: Barbara Pascone
Re: REVISED ADDENDUM #5 TO BINDER REPORT, DATED JUNE 10, 2022 --------------------------------------------------------------------------------------------------- This concerns documentation I recently received in response to my Public Record Requests. I believe the story told by these documents demonstrates many transgressions which includes allegations of negligent patterns-of-conduct and breach of fiduciary duty owed by the city to Rolling Hills LLMD property owners.
This writing concerns:
1) Alleged, Rolling Hills Overcharges.
2) Alleged, Civil Rights Violations.
3) Alleged, Constitutional Violations.
------------------------------------------------------------------------------------------------------------------ Proposition 218 Requirements:
California voters passed Proposition 218 in November 1996. However, the initiative didn’t become effective until July 1, 1997, allowing local governments time to comply with the voter approved constitutional requirements.
Beginning July 1, 1997, Proposition 218 (Article XIIID) of the California Constitution mandated that “only "Special Benefits” directly benefiting a parcel are assessable. This required a State of California licensed Engineer to separate Special Benefits from General Benefits. This was necessary in order to determine the special benefit an assessed property receives, that is over and above that received by the community or the general public.
As admitted by Public Works, a licensed Engineer has never conducted a Rolling Hills LLMD assessment or benefit analysis. In addition, from July 1, 1997, to present, City Council has never adopted a legally compliant Proposition 218 Engineer’s Report for Rolling Hills LLMD.
However, the court in Silicon Valley (supra,44 Cal.4th at 488), noted that a local agency acting in a legislative capacity has no authority to exercise its discretion in a way that violates constitutional provisions or undermines their effect. Yet City Council continues to do so.
The city’s unconscionable conduct for the past 25-years has resulted in assessment overcharges, now totaling an enormous sum of money owed to Rolling Hill LLMD and most likely owed to other districts as well.
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2 Proposition 218, The Right-to-Vote Act
As evidenced by Public Records, City Council has never adopted assessment ranges as required by Government Code (.35739 (a) et seq.), the Proposition 218 Omnibus Implementation Act that became effective July 1, 1997. This means, in any year the city increased Rolling Hills LLMD assessment amount from July 1, 1997, to present, they were required to comply with Proposition 218 requirements including property owner’s ballot process, prior to imposing the increased assessment.
Public Records show that Rolling Hills LLMD property owners received only one increased assessment ballot in 1999. The city could not produce any other responsive documents relative to property owner balloting for an increased assessment amount. Moreover, the city had no responsive documents demonstrating they had separated special benefits from general benefits as mandated by Proposition 218 (Article XIIID).
Voting is a “Civil Right:
City staff and City Council continue to violate Rolling Hills property owner’s Civil Rights as did CivicMic. Rolling Hills property owners were told at a Community Meeting, held by CivicMic and city staff, that landscape maintenance fund deficits caused a reduction in services for FY 2021-2022, and to restore normal services property owners in deficient districts needed a loan from the city to correct those deficiencies.
In addition, property owners were told, since there is no mechanism in place to increase district assessment rates, they must vote “Yes” for the city loan if they want to continue receiving a normal level of landscape/maintenance services. Therefore, CivicMic created a link on their website for property owners to cast their loan vote.
At City Council meetings, when property owners expressed their disappointment with CivicMic, Ms. Lewis quickly defended CivicMic’s 20 plus years' experience relative to Proposition 218 assessments.
Having considerable experience, one would expect CivicMic to ensure that the 2021-2022 FY Engineer Report complied with Proposition 218’s “Special Benefit Assessment” requirements, prior to holding their Community Meeting and prior to the city imposing the districts increased assessments.
On April 1, 2022, city staff and NBS released information regarding the required loan amounts and an online poll was posted on CivicMic’s website. Property owners were notified via postcard and email of those registered. However, CivicMic knew their online voting process was not Proposition 218 compliant.
3 To be legally compliant, Proposition 218 is very specific. In part, a Notice of Assessment Increase must be mailed to affected property owners along with a Proposition 218 Mail-in- Ballot, et. seq, and the Assessment Ballot presents the property owner with a ‘Yes or No” question.
However, CivicMic’s online voter poll did not present a yes or no question. Their online choices were; (strongly agree, agree, neither agree or disagree, disagree or strongly disagree).
According to CivicMic’s website, there are 1,066 parcels in Rolling Hills LLMD; however, only 110 residents participated in the poll.
CivicMic knew that the city loans triggered Proposition 218 requirements because the purpose of the loan's was to cover increase assessment amounts. This is substantiated by City Council documents (concerning assessment costs), stating this is an intergovernmental loan fund to supplement the remainder of 2021-2022.
In addition, CivicMic’s website does not post a legally compliant Proposition 218 Engineer’s Report for Rolling Hills LLMD, for FY 2021-2022 or any other year. Moreover, since the city has never generated a legally compliant Proposition 218 Engineer Report that separates “Special Benefits from General Benefits,” city staff nor CivicMic would have any way of knowing if the districts funds were deficient. Therefore, they wouldn’t have any way of knowing if a city loan was even necessary.
Yet rather being honest with property owners at meetings and workshops, CivicMic and city staff continue to bring forth an alleged dog and pony show intended to convince property owners that they have a landscape/maintenance deficiency, necessitating a city loan.
Why would City Staff & CivicMic allegedly conspire to mis-inform property owners?
Because the city broke the law, and they don’t intend to comply with the law (Proposition 218 requirements) until FY 2023-2024. If they told the truth, they would risk the city having huge liability to all districts for not complying with Proposition 218 requirements since July 1, 1997.
Therefore, City Staff, CivicMic and City Council continue to avoid questions, spin facts and knowingly conceal information for financial gain, even though they know the increased assessment amounts and voting procedures were “Constitutionally Illegal” in FY 2021-2022 and in prior years as well.
Per Resolution 2021-289, the NBS contract for Community Engagement Services for the districts is $206,750. However, with amendment #1, on July 19, 2022, has increased to $280,250.
4 Additionally, CivicMic’s quasi-online voting process was “Unconstitutional”. violating property owners Civil Rights!
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What are Special Benefit Assessments?
Since the passage of Proposition 218, court rulings have provided guidance interpreting Special vs General benefit assessments. After voluminous case law research, court findings were basically the same and generally the courts invalidated non-compliant Engineer Reports.
As such, Engineer Reports failed to separate and quantify those “special benefits” an assessed property receives that is over and above those received by the community or the general public at large as (general benefits). Or the Engineer's Report had not made the required direct connection of the special benefit to the assessed properties, as in Silicon Valley Taxpayers Assn, Inc. v.
Santa Clara Authority (2008).
The California Supreme Court noted “general benefits” are not restricted to benefits conferred only on persons and property outside the assessment district but can include benefits both conferred on real property located in the district or to the public at large.
The court in Santa Clara Open Space Authority found “public at large” means all members of the public, including those who live, work and shop in the district.
In Town of Tiburon (2009), the Court of Appeal stated, “Proportional special benefit is the basis upon which a project’s total assessable costs are apportioned among parcels within an assessment district”.
Another court opined, a “special benefit” is when a parcel receives a benefit that is separate and distinct from a benefit received by the community or the general public.
Considering the court’s interpretations of Proposition 218, I have attempted to apply them to the “Description of Work” page attached to the annual Engineer's Report for Rolling Hills LLMD.
However, since the areas of work have differed over-the-years, I decided to use the “Description of Work” page currently posted on CivicMic’s website as listed below:
1) MAINTENANCE of all streetlights in the public right-of-way (this would include PG&E costs).
5 What are the special benefits to Rolling Hills LLMD? Streetlight Safety.
Proximity/location of the streetlights in relation to benefited parcels? Not directly.
Who benefits from the assessment? a parcel, the public, businesses, fire station, school, A Girl’s Place, apartments, condos, commercial, industrial, non-profit, or agricultural?
I estimate Rolling Hills LLMD special benefits received, is 5%. However, I welcome your own estimate.
----------------------------------------------------------------------------------------------------------------- 2) HILBORN, LYON, MARTIN Roads, maintenance of all landscaping of the median island and in the parkway strips between the curb and public right of way on both sides of the street. (This would include repair, water/irrigation).
What are special benefits to Rolling Hills LLMD? aesthetics, access, desirability. Hilborn is a thoroughfare for the public at large and district residents.
Proximity/location in relation to benefited parcel? no direct proximity to parcels.
Who benefits from the assessment? a parcel, the public, businesses, fire station, school, A Girl’s Place, apartments, condos, commercial, industrial, non-profit, or agricultural?
I estimate Rolling Hills LLMD special benefits received, is 5%. However, I welcome your own estimate.
In addition, the city is to pay for fencing at Hilborn and Lyon Road per Rolling Hills CC&R’s. ------------------------------------------------------------------------------------------------------------------ 3) RESIDENTIAL STREETS, maintenance of all landscaping between curb and sidewalk on all residential streets & lighting in Rolling Hills Estates and Meadow Glen (this would include other necessary maintenance, PG&E and water costs). Property values are not a special assessment.
What are benefits to Rolling Hills LLMD? access, aesthetics, desirability, recreation.
Lighting is a safety benefit.
Proximity/location of the streetlights in relation to benefited parcels? various
Who benefits from the assessment? parcels, the public.
I estimate Rolling Hills LLMD special benefit is, 25-30% of the total amount Rolling Hills LLMD paid to date (open space is calculated separately). However, I welcome your own estimate.
------------------------------------------------------------------------------------------------------------------ 4) ALL LANDS owned by city designated open space.
6 What are special benefits to Rolling Hills LLMD? accessibility, aesthetics, desirability, recreation.
Who benefits from the assessment? parcels, public, businesses, fire station, school, A Girl’s Place, apartments, condos, commercial, industrial, non-profit, or agricultural?
Proximity/location in relation to benefited parcels? various
Rolling Hills LLMD, pays annual CFD #1, FOR OPEN SPACE, ($80 X 1033 PARCEL =$ 82,640/year (in part for maintenance).
I estimate Rolling Hills LLMD special benefits received, is 5%. However, I welcome your own estimate.
--------------------------------------------------------------------------------------------------------------- 5) ANY OTHER NECESSARY MAINTENANCE to sustain the integrity of the landscaping and lighting.
An estimate of Rolling Hills LLMD special benefit: IS INCLUDED IN ITEM #3. ----------------------------------------------------------------------------------------------------------------- 6) SOLANO FOOTHILL DRIVE, maintenance of all landscaping in the parkway strips on both sides of the road.
What are benefits to Rolling Hills LLMD? unknown.
Who benefits from the assessment? parcels, the public.
Proximity/location in relation to benefited parcels: none
Who benefits from the assessment? parcels, public, businesses, fire station, school, A Girl’s Place apartments, condos, commercial, industrial, non-profit, agricultural?
I estimate Rolling Hills LLMD special benefits received, is 0. However, I welcome your own estimate.
In City Council Resolution 94-59, residential lots on Solano Foothill Drive and Sanctuary are maintained by the property owners, including water.
------------------------------------------------------------------------------------------------------------------ *Not listed in CivicMic’s description of work are ADMINISTRATIVE COSTS. However, those costs are included in my estimates.
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7 Another Consideration:
Regarding City Council Resolution 91-213B (Exhibit N) in binder, the city currently uses this resolution in the calculations of certain costs itemized on the Engineer’s Annual Cost Summary.
On (page 4) of the resolution, you will find the reason maintenance districts received annual General Fund Contributions, from FY 1991 to present, is because maintenance districts are double taxed as follows:
Maintenance District property owners pay property taxes which, in part, fund maintenance of street lighting and roadside landscaping throughout the city and also pay assessments to cover maintenance cost for lighting and landscaping improvements in their neighborhoods.
Property owners pay to maintain median landscaping for arterials that run through their neighborhoods, which also creates a city-wide benefit by creating aesthetic thoroughfares travelled by citizens at large.
The question is, how much money does Rolling Hills LLMD pay through annual property taxes to cover maintenance costs for lighting and landscaping improvements in their neighborhoods, and/or to maintain median landscaping for arterials that run through their neighborhoods? This amount should be determined and subtracted from all district's special assessments.
------------------------------------------------------------------------------------------------------------------ Landscape Maintenance Assessment Cost Summaries:
I previously provided you with copies of Annual Engineer Cost Summaries itemizing landscape costs and other expenses for fiscal years 1997-1998, thru 2022-2023.
To Date, Rolling Hills LLMD, has paid for Landscaping only, approximately $ 4,302,067.
To date, Rolling of Hills LLMD, has paid a total of approximately, $ 8,791,575 for all expenses (including Landscaping).
To date, total of City General Fund Contributions, $946,948.
Rolling Hills LLMD Total Paid $ 8,791,575
Minus GF Contributions 946,948
Balance $ 7,844,627 PAID BY ROLLING HILLS LLMD
8 35% OF $ 7,844,627 = APPROX. $ 2,745,619, REPRESENTING AN OVERPAYMENT OF AROUND $ 5,099,000 PLUS INTEREST DUE ROLLING HILLS LLMD .
40% OF $ 7,844,627 = APPROX. $ 3,137,851, REPRESENING
AN OVERPAYMENT OF AROUND $ 4,706,776 PLUS INTEREST DUE ROLLING HILLS LLMD.
The amounts itemized on the following pages may differ slightly because for some years you must add the subtotal of the expenses to the City General and Administrative Costs to determine the total amount of expenses for that year.
In addition, some Annual Assessment Cost Summaries are for amounts that are Proposed (P), Actual (A) or Revised (R). Also, amounts have been rounded off. ---------------------------------------------------------------------------------------------------------- FY 1997-1998, Landscape assessment only, $ 92,329.47
Landscape assessment plus all other expenses charged, $193,248.51 General Fund Contribution, $30,284.42
--------------------------------------------------------------------------------------------------------- FY 1998-1999, Landscape assessment only $108,000,
Landscape assessment plus all other expenses charged, $234,451.67 General Fund Contribution, $41,533.42
--------------------------------------------------- ----------------------------------------------------- FY 1999-2000, Landscape assessment only, $102,883.79
Landscape assessment plus all other expenses charged, $221,211 General Fund Contribution, $41,533.42
------------------------------------------------------------------------------------------------------- FY 2000-2001, Landscape assessment only, $105,764.54
Landscape assessment plus all other expenses charged, $ 249,690.91 General Fund Contribution, $41,705.92
------------------------------------------------------------------------------------------------------- FY 2001-2002, Landscape assessment only, $115,968.37
Landscape assessment plus all other expenses charged, $280,423.08 General Fund Contribution, $48,743.02
------------------------------------------------------------------------------------------------------------ FY 2002-2003, Landscape assessment only $127,000
Landscape assessment plus all other charges, $256,898.56 General Fund Contribution, $50,307.20
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9 FY 2003-2004, Landscape assessment only, $146,058
Landscape assessment plus all other expenses charged, $279,130.80 General Fund Contribution, $39,000
---------------------------------------------------------------------------------------------------------- FY 2004-2005, Landscape assessment only, $190,151.50
Landscape assessment plus all other expenses charged, $337,281.70 General Fund Contribution, $127,540
----------------------------------------------------------------------------------------------------------- FY 2005-2006, Landscape assessment only, $193,273
Landscape assessment plus all other expenses charged, $321,307.20 General Fund Contribution, $27,000
----------------------------------------------------------------------------------------------------------- FY 2006-2007, Landscape assessment only, $193,963
Landscape assessment plus all other expenses charged, $327,597.20 General Fund Contribution, $28,000
------------------------------------------------------------------------------------------------------------- FY 2007-2008. (P) Landscape assessment only, $196,000
Landscape assessment plus all other expenses charged, $333,660 General Fund Contribution, $28,000
---------------------------------------------------------------------------------------------------------- FY 2008-2009, (P) Landscape assessment only $201,000
Landscape assessment plus all other expenses charged, $334,700 General Fund Contribution, $28,000
----------------------------------------------------------------------------------------------------------- FY 2009-2010, Landscape assessment only $201,000.00
Landscape assessment plus all other expenses charged, $332,000 General Fund Contribution, $28,000
----------------------------------------------------------------------------------------------------------- FY 2010-2011, (R) Landscape assessment only $201,000
Landscape assessment plus all other expenses charged, $322,000 General Fund Contribution, $20,562.40
----------------------------------------------------------------------------------------------------------- FY 2011-2012, (P) Landscape assessment only $130,500
Landscape assessment plus all other expenses charged, $298,500 General Fund Contribution, $20, 562.40
------------------------------------------------------------------------------------------------------------- FY 2012-2013, (R) Landscape assessment only $141,387
Landscape assessment plus all other expenses charged, $278,711 General Fund Contribution, $34,000
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10 FY 2013-2014, (P) Landscape assessment only $141,387 Landscape assessment plus all other expenses charged, $334,338 General Fund Contribution, $34,000
------------------------------------------------------------------------------------------------------------- FY 2014-2015, (R) Landscape assessment only $149,481
Landscape assessment plus all other expenses charged, $324,101 General Fund Contribution, $34,000
------------------------------------------------------------------------------------------------------------ FY 2015-2016, (A) Landscape assessment only $149,481
Landscape assessment plus all other expenses charged, $386,641 General Fund Contribution, $34,000
-------------------------------------------------------------------------------------------------------------- FY 2016-2017, (A) Landscape assessment only $142,400
Landscape assessment plus all other expenses charged, $304,183 General Fund Contribution, $34,000
------------------------------------------------------------------------------------------------------------- FY 2017-2018, (A) Landscape assessment only $153,666
Landscape assessment plus all other expenses charged, $369,658 General Fund Contribution, $34,680
------------------------------------------------------------------------------------------------------------- FY 2018-2019, (A) Landscape assessment only 125,415
Landscape assessment plus all other expenses charged, $308,948 General Fund Contribution, $35,375
------------------------------------------------------------------------------------------------------------ FY 2019-2020, (A) Landscape assessment only $153,666
Landscape assessment plus all other expenses charged, $360,180 General Fund Contribution, $35,375
------------------------------------------------------------------------------------------------------------ FY 2020-2021, (A) Landscape assessment only $326,592.00 Landscape assessment plus all other expenses charged, $581,163 General Fund Contribution, $35,374
------------------------------------------------------------------------------------------------------------ *FY 2021-2022, (P) Landscape assessment only $265,000
Landscape assessment plus all other expenses charged, $514,144 General Fund Contribution, GFC +CITY LOAN $480,374
------------------------------------------------------------------------------------------------------------ FY 2022-2023, (P) Landscape assessment only $430,000
Landscape assessment plus all other expenses charged, $707,406 General Fund Contribution, $35,374
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11 *EXCLUDED: GFC + CITY LOAN OF $480,374
--------------------------------------------------------------------------------------------------------------- In Conclusion:
Unless districts do as the city dictates, they will cut off services, even though it was “they” who broke the law and continue to do so!
Although asked by others, thus far I have only shared research with one-other Maintenance District.
Disclosure: I am not an attorney. This research nor my comments constitute legal advice, nor is this information a substitution for seeking legal advice.