Cracking the 218 Code

The County’s proposed Proposition 218 vote, scheduled for launch in late summer, is in serious trouble. The signs are everywhere.
    
To figure out exactly what the County’s version of Prop 218 is all about and what they are voting for, residents will require clear, solid information. So far they have not received any intelligible information that does not require a translator paid by the County.
    
Based on what they have heard already from the County, the majority of Los Osos speakers who attend Board of Supervisors meetings have vowed to vote or campaign against the 218. Even those who support it conceptually are confused about the details, and are worried about the County undermining its own efforts by appearing blatantly biased and risking the vote.
    
Confused residents who do not get cable-accessed Channel 20 or 21—at least 30% to 40% of the community—and have no or low access to the Internet—may not have a clue what they are voting on and just might throw out the ballot with the junk mail when it comes in August or September. It’s hard to imagine how any explanation on the mail-in ballot could achieve anything other than confuse people further.
    
Fueled by partial, convoluted, revolving and evolving information from the County, many in the Los Osos community view the County’s 218 vote as one big fiery ball of confusion. What makes it so confusing? The problems lie with the County’s overall approach to the vote. It’s written in government-ese, a language unto itself, and it’s not easy to decipher. To add chaos to confusion it is also “out of order,” that is, not in a sequence familiar to local 218 watchers of Article XIIID of the State Constitution.
    
Even County translators have a difficult time comprehending it.
    
“It took me a long time to understand, and asked many questions for myself to understand why the County was doing it in the order they’re doing it, and I finally think I understand it,” said a key member of the County’s engineering TAC. “I struggled with that for a while, not that I necessarily like it. It’s just that where we’re at.”
    
Some in the community do not like this take-it-or-leave-it approach—and don’t accept ‘that’s where we’re at’ as a reason to choose Tri-W, since liens will be placed on homes once the assessment passes—and then there’s no turning back, no matter how expensive the sewer turns out to be. Too many explanations by the County end this way: “We’re doing it because we’re doing it this way” and “It’s important to do it this way because it’s important.”

Before and After
    
“The Supplemental EIR and additional CEQA review should be done prior to any 218 vote, not afterward,” said Cal Poly Professor, Dr. Tom Ruehr. “All community and regional considerations must be made prior to the 218 vote. This is again the reason so many problems have arisen in the past. All the facts must be known to the residents before they are willing to vote to support the sewer project. We cannot afford to have another debacle with unknown problems occurring and tremendous cost overrides after the 218 vote. We must never buy a pig in a poke regarding the Los Osos sewer.”
    
The County’s 218 is not a “yes” or “no” vote on a specific project, but on whether to fund the County to build a project yet to be determined, at a cost yet to be determined by the County—basically a financial obligation for the maximum amount for the maximum loan, payable almost entirely by Los Osos homeowners in the “Prohibition Zone.”
    
“If the Proposition 218 vote is project specific,” County Project Director Paavo Ogren tried to explain to Supervisor Katcho Achadjian at an April Board of Supervisors meeting, “and that specific project fails for one reason or another…  As we know two major projects have already failed in Los Osos. That means we, you have to start all over again. We have to start back with the 218 procedures, and you have to start back to square one. With the funding decision coming first, that gives us the best flexibility of going down the road in a lot of the additional work that’s going to be necessary, and really tailoring the project to meet the best needs of the community.”
    
Yet, at the same time, Bruce Gibson stated: “The provisions of 2701 are that the project gets returned to the LOCSD, with a large pile of information that’s been developed over the course of the County’s efforts. The specifics of that haven’t been worked out yet.”
    
Of all the supervisors, Achadjian is the only one that has shown any sincere interest, any interest at all for that matter, in the social and economic impacts of an unaffordable project on the greater community of Los Osos. Even if Achadjian were to vote against the Tri-W project as his final choice of projects—not that he will—the Board vote would probably fall 4 to 1 for Tri-W.
    
“The Community advisory survey should be made a long time prior to any 218 vote. The citizens must know clearly what they are paying for instead of continually changing the system after the 218 vote,” said Dr. Ruehr. “It appears a vast waste of time and effort to do the process of comparing several cost estimates after the 218 vote—as has been suggested be done with the current TAC. This means we will have NO idea of the cost prior to voting on what it will cost. This is a totally asinine approach.”    
    
Ogren contends that the County is within its legal obligations to conduct the 218 vote in the order the County has introduced.
    
“Some misperceptions in the community exist on what is needed to comply,” Ogren wrote The Rock last July. “Some have indicated a belief that a specific project design [note: design is not part of the process]] is needed prior to the Proposition 218 vote, yet no such requirement truly exists.
    
“In addition to numerous procedural requirements, Proposition 218 requires the preparation of a ‘detailed engineer’s report’ that suggests the proposed assessments that will be voted on, but it does not require final product selection. Indeed, if the Proposition 218 identified a final specific project, then other regulatory compliance issues would also need to be fully addressed prior to the Proposition 218 vote.”
    
So what’s wrong with that order? What’s wrong with getting the 218 vote right this time, with one project with one cost, even if it takes additional time, rather than risking the chance of the vote failing and having to start a 218 all over again? Because it’s not in the budget.
    
This sequence, Ogren continued, “would substantially increase the current $2 million estimate that will be borne by County-wide taxpayers, and which will not be reimbursed if the vote fails. Plus, the community has never agreed on what the ‘final project’ should be and it is unreasonable to expect the County to identify a final project prior to the property owners making the commitment that they do, in fact, want the County to construct a project.
    
“With a perceived ‘catch 22’ that exists, “ he said, “our Board’s adopted strategies nevertheless include a community advisory election [note: the 218 is not an election] to decide the final project, and with that promise adopted in writing, the final selection will only be controversial if the community continues to be divided in that final vote to select an alternative.
     
“By then, though,” he said, “the decision to construct or not-construct will have been made and the end of the controversy will be in sight.”
    
Not promised and not offered is any agreement by the Board of Supervisors to abide by the community advisory vote. The Board of Supervisors has the final say, not the property owners of Los Osos. That fact does not sit well in some quarters of the community that believe a vote without a voice is a vote for Tri-W. It leaves the gate wide open.
    
“The 218 vote must clearly define all of the benefits to be gained from adopting the completed proposal to install the sewer,” said Dr. Ruehr. “The vote should only be taken once the full costs are disclosed. The final cost must not be exceeded under any circumstances. Proper contingency expenses are included in any engineering project. We must ensure the creeping costs do not exist. The Tri-W site and Broderson site are examples of previously approved systems with now-obvious engineering fatal flaws that would have necessitated millions of dollars of creeping costs increases over time.
     
“These provisions for a definite cost maximum, assurance of no creeping costs, a clearly articulated design for collection, treatment, water reuse, and a firm deadline for completion must be spelled out before the citizens of Los Osos can be expected to approve a 218 vote.”

Special Benefit Debate
    
The Proposition 218 vote must determine special benefits, and while the County is still working those calculations, at the same time a final ruling on a revised definition of benefit is currently still being briefed in the Supreme Court.
    
“The issue with benefit right now as it relates to assessments is under great debate,” said Eileen Didio, paralegal to the Director of Legal Affairs, Timothy Bittle, for the Howard Jarvis Taxpayers Association. “The Supreme Court of California right now is hearing a case called the Silicon Valley Taxpayers Association versus Santa Clara Open Space Authority, and it deals with the issue of benefit and what the true legal analysis should be of benefit, of who should have it, because anyone can benefit from anything. They are trying to establish that.
   
“So I can’t give you a legal analysis (that addresses benefits) as it compares to Prop 218 because that case has yet to be decided.
    
“They’re still allowed to do (assessments), but as far as us bringing suit or even talking with (the County) about their methodology of how benefit is being applied, there is no solid base we can go off of. Once that Supreme Court decision is heard, once they release it, then we’ll have an idea as far as what that interpretation is on 218, and could take steps if it’s in a positive light, as far as (Los Osos’) situation.”
    
Didio expects to finally hear the court’s opinion in September, just as the Los Osos advisory vote is underway or due for return. If a court decision is finalized in September, and if applicable to Los Osos, the timing of its release may very well come too late to help reshape the vote, although a court decision could bring a lawsuit in its wake.
    
Didio said the HJTA will review the engineer’s report and the ballot “to take a look at it and make sure is legal as far as following all the provisions of the Constitution. That’s the best as far as we can do right now.
    
“As far as certain projects, sort of up in the air as far as price, once you find that you’re asked to vote yes or no on this, you’re going to have all the facts in front of you. It would be completely illegal for them to ask you to vote yes on something and you not know how much it is and what it’s for. So there’s going to be a detailed engineer’s report in which they’ll describe the projects, they’ll describe how the assessment is calculated, who pays what, what is it going for.
    
“Based on my own research,” Didio said, “that’s what they’re currently doing right now, and that’s why it seems sort of chaotic.
    
“They have all these projects to pose and they’re trying to figure stuff out. Any type of assessment when it’s proposed goes through this kind of planning and re-planning.

You’re never going to be asked to approve an assessment and not told the price for it, that’s completely illegal.”
    
Legal? Perhaps. But will anyone understand what they’re voting for? Will they know they are voting for maximum amount of assessment that can be levied?

The End of Affordability
    
Dr, Ruehr points to Figure 1.1 in the TAC report as “a classic example of the problem.
    
“It says, ‘Proposition 218 assessment to match final project selected.’ Again, we see the paternalistic and blank-check approach the County Engineering believes is the only way. Certainly, the County Engineering wants to run up the total costs as much as they can. We must do everything possible to turn this around allowing the citizens of Los Osos to be in control of what they will have to pay by knowing up front the true costs of this project. It is time to treat the citizens of Los Osos with respect and mature reasoning from facts and fiscal responsibility, rather than continue the paternalistic dictatorial approach used in the past.”
    
Affordability, as an embedded issue in the 218, is non-existent, and has all but disappeared from the County’s radar, although sighnificantly more affordable options, such as Ripley Pacific and Orenco, are clearly available to Los Osos.
    
Said Ogren recently: “One of the things we have shared in our grant efforts is the basic affordability analysis, that the EPA guidelines of 2.5% of MH median household income in comparison to the cost of the project…  Clearly, just the technologies that are available are all very expensive ands that’s why we are looking at multiple ways of mitigating of affordability challenges.”
     
“The community must have an ‘Economic Impact Analysis’ prior to any vote,” writes Dr. Ruehr. “We need to know the full impact on this community, especially because of the large number of retired people living on fixed incomes. Two ‘Economic Impact Analyses’ are needed. One including only the residents within the prohibition zone and one including all those potentially benefiting from the proposed sewer and potential hooking up in to the future from outside of the prohibition zone.
     
Residents have been focused on this 218 vote, and most don’t realize that this 218 is only the beginning. If the 218 passes, and the County votes to press on with the project, it’s just the first assessment in layers of assessments, along with fees and charges, yet to come. The County is not giving property owners the trust cost of the sewer, which they are entitled to know before they vote, since liens will be placed on their homes once the assessment passes. Those additional costs will eventually surface. Once this 218 passes, the floodgates of assessments will open. Then there will be no turning back, no matter how expensive the sewer turns out to be.

Paavo Ogren did not respond to questions submitted by The Rock.