The citizens of San Diego have, as all Americans do, an inherent right to a free and true democratic government, properly conducted elections, and political representatives unwaveringly committed to the rules of local legislature. Attempts to thwart important citizens' initiatives punch a hole in this system, especially where the source of the problem lies within the walls of the citizens' own representatives. This is a case about repeated campaigns to sway public opinion against a citizens' initiative as it headed for the ballot box - attempts which were often blatant, occasionally covert, and always illegal. The Rural Heritage and Watershed Initiative ("Initiative") was a proposed comprehensive land-use statute supported by a broad coalition of concerned citizens, planning and conservation experts, land owners, and political leaders. If adopted, the Initiative would have amended the San Diego County General Plan by establishing an urban-rural boundary. The boundary was intended to protect the region's backcountry from inappropriate development and uncontrolled urban and suburban sprawl. The Rural Heritage and Watershed Initiative Committee (RHWIC) was created to assist in the passage of the Initiative.
Following is the story of how, in the course one year's time, the County committed numerous acts of illegal electioneering, and thereby, succeeding in killing the Rural Heritage and Watershed Initiative.
The RHWI was unveiled to the public during the fall of 1997. In December of that year, the San Diego County Board of Supervisors authorized County staff to spend $50,000 to conduct a study of the financial, environmental and planning impacts of the Initiative. To gather information for the report, on January 16, 1998, the San Diego County Department of Planning and Land Use sent out copies of a letter to fire protection, school, water, and sanitation districts requesting comments on the expected impacts of the RHWI.
Unfortunately, this memorandum of inquiry was premised on the foregone conclusion that the RHWI would have a similarly negative effect in every district. The memorandum stated: "The Initiative would decrease land use densities in your district's service area. This is expected to result in larger parcel sizes in many areas at build-out and a lower population within your district."
A number of districts contained very little or no land affected by the Initiative, and therefore it has been opined that County's allegation that each would experience such a reduction in density or population under the Initiative was intentionally deceptive. While purported to solicit information on the impacts of the Initiative, the letter was clearly an attempt to draw negative reactions. Some rural leaders agreed. On January 29, Joe S. Jackson, assistant general manager of the Fallbrook Public Utility District, wrote the County, "I find the questions . . . intentionally leading or misleading," and dismissed the idea that the Initiative would hurt his rural district. Remarkably, after significant political pressure, the district was forced to withdraw its comment letter and issued a more generic response. When viewed in conjunction with the events that followed, without a doubt, the solicitation of comments by the County was intended solely to find any possible examples of negative impacts, no matter how illogical or inapplicable, and was not aimed at discerning both the positive and negative sides of the issue.
Soon thereafter, on February 11, 1998, the Board of Supervisors gave a clear indication of its desire to impede the traditional initiative process with the RHWI. In a 4-1 vote, the Board directed the Chief Administrative Officer to, "seek and work aggressively for the passage of urgency [State] legislation which would permit only the registered voters of the unincorporated area the right to vote on General Plan and zoning initiatives
that only affect the unincorporated area." The arrogance with which the County attempted to disenfranchise the majority of County voters was profoundly felt by the RHWIC, as the proposal actually stated on its face that the RHWI was the impetus for the request. The Board's rationale for the legislation was that the Initiative would only affect the unincorporated areas, and it would be unfair for the residents of the incorporated municipalities to decide the fate of those outside the cities.
To put it mildly, the legislation died before it got off the ground. Whether because the Board suddenly realized that the effects of the RHWI would be felt by citizens throughout the entire County, or more likely, because it was tipped off that such legislation would ultimately prove unconstitutional, the County was totally unable to gather support locally or at the state level.
Regardless of underlying intent, the proposal clearly shows that at least some members of the Board were taking steps in opposition to the Initiative from the beginning. In fact, Supervisor Ron Roberts opposed seeking urgency legislation because, "To do so", he said, "would make it look as though the board was directly targeting the Rural Heritage and Watershed Initiative before the County had completed an analysis of the measure and taken a position."
State Senator David Kelley, R-37th, went even further: "The Legislature would not look favorably anyway on a bill that seeks to subvert the will of the people preparing an initiative. This effort could easily be construed as an attempt to shortstop the rural heritage initiative."
From the Union, February 15, 1998 edition:
" . . . the San Diego Board of Supervisors' efforts to stop a countywide vote on the measure is certainly a bad idea . . .. Supervisor Dianne Jacob insisted that the vote had nothing to do with the rural heritage measure.
That's hard to believe.
The vote was a request to Sacramento for urgency state legislation; it was clearly designed to keep off the countywide ballot the measure that would limit development on agricultural lands in the eastern two-thirds of the county.
From the League of Women Voters:
"There are . . . governmental matters in the San Diego region which go beyond single jurisdictions or concern more than one agency or general-purpose government. The League of Women Voters of San Diego County therefore opposes this act which was proposed specifically to undercut the Rural Heritage & Watershed Initiative, which we support."
From the City of Del Mar, Mayor Mark Whitehead:
"Why would the San Diego County Board of Supervisors be willing to deny 84% of the citizens of this County, residents of incorporated areas, the right to vote on County-wide issues that will directly impact all of us. It is Del Mar's hope that you will re-consider your decision of February 11, 1998 to introduce this State legislation that limits the vast majority of YOUR CONSTITUENTS' right to vote on major issues that affect all of us."
From the City of Poway, then mayor Don Higginson:
" . . . it is difficult to accept that this elected body would seek to disenfranchise 84 percent of their constituents."
And, finally, from the Descanso Sponsor Group:
"It appears that the Board of Supervisors wants to keep their own authority over land use in the rural areas, but eliminate the constitutional rights of city voters . . .. this Act will subvert the democratic process."
Pursuant to California Elections Code ¢¥ 9111, a county is authorized to refer a proposed initiative to any county agency for a report on the initiative's fiscal impact, its effect on the internal consistency of the county's general and specific plans, and any other matter the board of supervisors requests to be in the report. The county's role under such circumstances is purely informational and ministerial in nature and cannot be biased in favor of or against an initiative measure.
Pursuant to a directive issued in December the year prior, in April 1998, the San Diego Department of Planning and Land Use issued a scathingly biased report to the Board of Supervisors in violation of California Elections Code ¢¥ 9111. Importantly, not only was the report itself tainted with bias against the Initiative, the act of presenting the report to the Board was even more so. While the report purported to analyze the Initiative in an impartial and independent manner pursuant to the Elections Code, upon closer inspection, it contained far too many misleading statements to be purely "informational and unbiased."
For example, the Executive Summary of the final report contains the following statement: "Individual property owners in affected areas will be hardest hit due to reduced land values due to loss of development potential for 54,133 dwelling units which will have a negative impact on mortgage funds." (Emphasis added) This statement implies that "development potential" is a property right being taken away. As a takings issue, the Initiative does not limit the ability of property owners to make an economically viable use of their property, which is the appropriate legal standard. The report completely fails to mention any of the numerous existing forms of government regulation, which currently impose limits on abilities of property owners to make the most profitable use of their property. Further, the ability of farmers to borrow as much against their land as they could have borrowed prior to "the loss of development potential" skirts the issue of true impact to agriculture. A farmer is a farmer; a developer is a developer.
Also note the use of patently judgmental strong language. For instance, the phrase "hardest hit" clearly reflects an adverse predisposition by the County. Similarly, the County negatively portrays one of the greatest benefits of the Initiative- more effective allocation of infrastructure costs- by skewing semantics. The statement in the report, "The primary fiscal effect will be the need to shift public funds, especially infrastructure improvements, from the rural areas to the urban areas," is given a negative connotation when followed by allegations that this shift will be "to accommodate higher population growth pressure in those areas. The added growth pressure in the urban parts of the County will tend to refocus spending away from rural areas."
Numerous documents, including the County's General Plan itself, extol the virtues of placing new growth into existing urban areas and allocating funds to regenerate urban core infrastructure. The County planners/report writers were certainly aware of these documents and the values they contain. Therefore, the way the County takes what is essentially good news, and makes it sound bad, that's intentional bias coming through.
The report's Executive Summary also states, "The initiative circumvents the planning process and eliminates the ability of community planning and sponsor groups and the public to evaluate and determine land use patterns." Initiatives are not only constitutional, they are considered one of the most cherished rights of California citizens. The RHWI was signed by more than 100,000 San Diego County residents, and was supported by nearly 50 Members of 14 County Planning/Sponsor Groups. The disdain espoused by the County for such "ballot box zoning" was nothing more than an ego- driven reaction to the loss of power and control currently enjoyed by the developer-friendly County administration.
The Report also notes:
"The general effect of the Initiative is to shift the location of impacts of growth rather than to avoid impacts . . . A reduction in the number of dwelling units accommodated in community and subregional plans by 54,133 units will constrain the market and add pressure on cities to upzone their neighborhoods. Urban areas can expect a greater rate and intensity of development as market pressure encourages buildout at full or increased density."
These statements imply an extremely heavy impact on non-RHWI areas, which is an exaggeration of the truth. Notably, the analysis implies that all units will be built by 2020. According to SANDAG, however, if development on RHWI land were to continue at the same rate it has for the past 20 years, it would take 100 years to build out the 54,000 units at issue. This 80-year discrepancy is a significant flaw within the County's analysis and portrayal of the Initiative.
Also important is that the report makes no mention of the real cause of development pressures in the region- the 406,000 units that will be required to accommodate the 1.1 million additional people expected by 2020- regardless of the measly 54,000 units lost in the RHWI areas. This is what will truly: 1) put growth pressure on sensitive lands; 2) add to the regional need for new sources of drinking water; 3) make urban intersections worse; and 4) escalate land costs far worse than the RHWI ever could.
The Report goes on, "Since the measure only constrains parcel sizes, not land uses on the parcels, it offers no assurances that any environmental resources will be protected." This statement is also misleading in that it implies a change in parcel size will not provide any protection for environmental resources and only a change in land use will achieve such a result. This argument diminishes the approach taken by the RHWI and implies that the Initiative is misdirected. The report tries to invalidate the mechanism of the RHWI by saying that it cannot achieve its intended effect- the protection of rural farmland and regional watersheds- without also addressing every other environmental issue. However, the RHWI was based on the premise that existing land uses on large parcels are basically O.K., and that small parcels are the weak link leading to development, and thereby loss of environmental resources. In essence, the statement presupposes intent to replace existing environmental regulations with a single land-use designation, and this simply was not the case.
The Report states, " . . . impacted land varies in actual sensitivity, including many areas that are not environmentally sensitive." Contrary to the report's assumption, the Initiative never purported to say that all RHWI lands are environmentally sensitive. There are many reasons why lands were included in the Initiative, and by making statements like this, the report again shifts basic assumptions so that it further appears the Initiative wont accomplish its intended result.
The report states, "60 percent of the pre-approved habitat core areas (under MSCP) are not protected by the initiative, so growth pressure on those sensitive lands will be intensified." The analysis of the impact of the RHWI on the MSCP is perhaps the greatest farce of all. It is totally irrelevant whether the RHWI incorporates or covers the MSCP reserve lands. It never purported to do so. Rather, it was meant to fill in the gaps left by poor MSCP planning. The idea that there will be intensified pressure on MSCP lands completely overlooks the benefit of habitat continuity that would occur with the two programs working together. By invoking this kind of scare tactic, it is as though the County took a decided stance that the RHWIC was trying to come up with a new habitat conservation system and decided to nip that possibility in the bud right from the start. Quite simply, the County never sought to understand either the true intent or the true impact of the RHWI.
If the Report itself is not a clear indication of the County's bias, taken in the context of the following, it should be. On May 6, 1998, County staff presented a summary and interpretation of the report to the Board of Supervisors. During this publicly televised debacle, City planner Rose Garduno delivered to the Board a presentation easily as misleading, and even more biased, than the Report itself. The Supervisors interrupted her with perfectly poised inquiries and, time and again, Garduno answered with rehearsed replies. The entire presentation ran so askew of legally mandated objectivity that Supervisor Dianne Jacob was compelled to chime in at the conclusion to express her feeling that the presentation was extremely negative. Then, in an absurdly rehearsed tone, she asked for assurance that the report was free of staff bias. Planning Director Gary Pryor stepped up to the plate.
Pryor calmly explained that, in his mind, the report was a simple application of SANDAG statistics to the proposed Initiative. Yet, several minutes later, Supervisor Bill Horn assured all present that, while the Board as an entity is prohibited from exhibiting bias, he himself hated the Initiative. And then he called the RHWI a "fraud." Earlier Supervisor Horn called the chairman of the RHWIC, Duncan McFetridge, a "hypocrite" for failing to conduct an Environmental Impact Report (EIR) for the Initiative, knowing full well that citizen proponents of an initiative measure have absolutely no legal obligation to provide a local government with an Environmental Impact Report prior to passage. Horn continued his personal assault by expressing disbelief that McFetridge had the nerve to sue the County for past failures to conduct proper EIRs when he himself had not prepared one for the RHWI.
As many times as the Supervisors insisted they had not yet made up their minds on the Initiative, the truth was clear. Supervisor Horn had hated the proposal for months (as he stated without hesitation), Supervisor Roberts had misgivings about the impact report but opposed the RHWI anyway, Supervisor Slater was openly disgusted with Duncan McFetridge, and Supervisor Jacob rather conspicuously sought repeated assurances that the Board didn't appear biased. The entire three-hour meeting was a sham and everyone in attendance knew it. Several members of the audience said so. Legally, the meeting also served as a direct broadcast of bias from County staff and the Board to the public.
On June 7, 1998, Jim Gogek, a writer for the San Diego Union-Tribune Newspaper, authored an opinion article entitled, "Battling the Rural Heritage Initiative." In this article, Mr. Gogek conveyed allegations of illegal bias by County officials and staff in the production and presentation of the Initiative impact report. He identified Lawrence B. Prior III, Chief Administrative Officer of the County of San Diego, and Gary Pryor, Head of the County's Department of Planning and Land Use, as the individuals who orchestrated a series of staff meetings designed to exaggerate the negative aspects of the Initiative. About the Board meeting that took place on May 6, he wrote:
"[Planning Director Gary] Pryor knew exactly what conclusions he wanted from his planners, and he made sure they were reached. So did [Lawrence] Prior, the county's top manager. After a dress rehearsal of the report's presentation, he indicated he wanted a stronger negative message before it went to the supervisors.
So when planner Rose Garduno presented the report to the Board of Supervisors, she delivered broadside after broadside. And worst of all . . .' she would say, and then launch into another litany of the initiative's supposed evils. Meanwhile, supervisors interrupted on cue with prepared questions designed to exaggerate the already skewed statistics. The whole thing was a joke."
Mr. Gogek concludes his article by stating, "[w]hat the county board and staff are doing is campaigning against the rural heritage initiative. And that's illegal."
On July 3, 1998, the RHWIC, through its attorneys, filed a request under the California Public Records Act (PRA) to gain access to documents which it believed would likely expose the illegal activities by Prior, Pryor, and other County staff mentioned in the newspaper article. Among other things, the RHWIC specifically requested access to public records pertaining to the following areas:
Communications between County employees for the purpose of presenting the Report to the Board of Supervisors, including but not limited to any directives by CAO Larry Prior to emphasize the negative impacts of the RHWI;
Communications among County employees regarding any newspaper article written on the RHWI; and,
All records regarding the expenditure of the $50,000 allotted for the creation of the Report.
On July 23, 1998, Marco Gonzalez, attorney for RHWIC, reviewed files compiled by the County pursuant to the request. During this review, Mr. Gonzalez discovered numerous emails that indicated that County and the Board of Supervisors' staffs had been seeking a way to keep the Rural Heritage and Watershed Initiative from being included on the November ballot. These correspondences contain such statements as, "If the RHWI does not come back before August 7, then Duncan (McFetridge, the RHWIC Chairman) would have to pay for a special election!" The punctuation reflects the County's attitude toward the Initiative. Ultimately, the threat of lawsuit and the PRA request made it clear that the RHWIC would not stand for such blatant politicking, and the County abandoned ideas of keeping the measure off the ballot.
The most controversial document seen by Mr. Gonzalez during the PRA file review was a photocopy reproduction of the Union's newspaper article alleging biased County actions. At the top, left-hand corner of the document were various handwritten notes expressing: (1) surprise that the RHWIC Chairman, Duncan McFetridge, had knowledge of a dress rehearsal of the Report's presentation to the Board of Supervisors referred to in the article; and (2) the author's opinion that the damaging information in the article must have been leaked to the press from a staff member of the County. In other words, the handwritten notes supported the allegations contained in the article.
Mr. Gonzalez tabbed the document, along with others, for reproduction by the
County as is standard during such a file review. On July 29, 1998, the County informed the RHWIC that it would not produce the document with a copy of the margin notes previously disclosed because they were now suddenly exempt from disclosure as "deliberative privilege material". A photocopy reproduction of the newspaper article was produced with the margin notes whited out.
Inflamed that the County would endorse such a post-hoc rationalization for withholding a document already disclosed to the public, the RHWIC on July 31, 1998 informed the County it was not satisfied with the documents which were produced. Furthermore, a privilege log of all documents withheld was demanded for the purpose of evaluating every privilege alleged. The privilege log produced by the County on August 26, 1998 noted additional documents withheld from disclosure due to the "deliberative process privilege."
For each of these documents, the County claimed exemption under California Government Code section 6254(a) and 6255. Under both of these sections, a public record may only be withheld when the public interest in withholding the record clearly outweighs the public interest in disclosure. Despite the express mandate that this balancing test is made, at no time did the County provide any justification beyond a vaguely articulated desire to keep County business beyond the reach of public interference.
The position of the RHWIC, however, was that no matter how crucial to the democratic process, local government's freedom to operate with minimum interference was clearly outweighed because of the overwhelming public interest served by exposing high-ranking government officials condoning the use of public funds to finance illegal electioneering.
The RHWIC sought these documents in order to ensure that San Diego County residents' tax money has not been, and will not in the future be, spent on illegal campaign efforts in opposition to citizens' initiative measures.
On or about September 3, 1998, the RHWIC notified the County it was still not satisfied with the County's response for two reasons: 1) the balancing test requirement had not been met; and, 2) any alleged right to withhold the document with handwritten notes was waived upon inadvertent disclosure to Mr. Gonzalez. The County did not respond further to the RHWIC's letters.
The Rural Heritage and Watershed Initiative designated "Proposition B" in the November 1998 election did not pass. The San Diego County Farm Bureau, supported significantly by the building industry, real estate industry, and groups such as Citizens for Private Property Rights, mounted a significant media campaign against Proposition B. Additionally, numerous events took place during this period which reflected the County's bias against Prop. B, and contributed to its defeat.
First, the Chief of Staff for Supervisor Ron Roberts, Steve Dannon, took a temporary leave of absence from his position as a County employee to work for the public relations firm hired by the opponents of Proposition B. Additionally, Supervisor Slater became a signatory on the ballot arguments in opposition to Proposition B. Finally, senior planner Rose Garduno of the County's Department of Planning and Land Use participated on behalf of the County in numerous speaking engagements against Prop. B in front of such groups as chambers of commerce and realtor's associations.
In September 1998, approximately one month prior to the election, a report was produced by Strong Associates of Oakland, California entitled, "An Analysis of Land Use, Fiscal, Transportation, Environmental, and Health Impacts of the Rural Heritage and Watershed Initiative." ("Strong Report") The Strong Report was an independent, unbiased analysis commissioned by the Alliance Healthcare Foundation of San Diego. The report concluded that the RHWI would have beneficial impacts including:
Preservation of 578,000 acres of sparsely developed land for open space and
farming rather than eventual rural residential use;
Savings estimated at $25.2 million annually in local public service costs;
Shift in future housing closer to destinations and to areas better served
Reduction in County-wide vehicle miles traveled by 7.4 million miles daily
(approximately 6% reduction). The Initiative would also reduce average commute time for all future County residents by as much as 12%;
Reduction in County-wide air pollutants from vehicle emissions by 4%-6%; and,
Minimization of development disturbances to affected watersheds.
Amazingly, immediately following the issuance of the Strong Report, with the election looming in the near future, the County scrambled to create a document entitled, "An Analysis of the Strong Associates' Report on the Rural Heritage and Watershed Initiative" ("Strong Report Analysis"). By the tone and timing of this document, it was clear that the County was doing everything in its power to debunk any conclusion of beneficial impact noted in the Strong Report. Further, though it was produced at the direction of the County Board of Supervisors, by staff paid with taxpayer funds, when counsel for the RHWIC sought a copy of the Strong Report Analysis, he was referred to the San Diego County Farm Bureau because all of the County's files "had been purged." Because the Farm Bureau is a private entity who openly campaigned against the passage of Proposition B, the RHWIC was justifiably outraged.
Following the election defeat, on December 8, 1998, the RHWIC filed a lawsuit against the County seeking injunctive relief for violations of the California Public Records Act. The Committee specifically sought disclosure of the handwritten notes on the photocopy of the newspaper article and all of the documents listed in the County's privilege log.
Throughout 1999, the County vehemently opposed the release of any of the allegedly privileged documents. Some interesting points came out during the litigation:
1. Faced with the mandate to identify the author of the handwritten notes on the withheld copy of the Gogek article, the County first stated that it was unable to identify the author of the handwritten notes. Subsequently, after months of repeated denials and unwarranted delay, the County admitted that the handwritten notes were authored by Planning Director Gary Pryor during a telephone conversation with CAO Larry Prior. The County further admitted the purpose of the notes was an investigation into staff leaks regarding the RHWI presentation preparation. Remarkably, in early August of 1999, the County retracted this admission and stated, once again, that it had no idea who wrote the notes. Ultimately, the court agreed with the RHWIC, and ruled that the county had waived any applicable deliberative process privilege for the handwritten notes. Once disclosed, the handwritten notes did in fact portray disdain by the CAO that the information had been "leaked" beyond County staff. . Specifically, they stated: "Larry's Comments
* LPIII believes it was leaked by staff
* We have a problem! Info re: meeting not accurate
* We have someone on the McFetridge team
* How would Gogek have known about the pre-meeting
* Does Gary have any idea"
Taken in the context of the accusations in the article, these statements go far in supporting the position of the RHWIC.
2. Following the ruling on the handwritten notes, the County identified a total of 43 allegedly privileged documents. Somewhat surprisingly, after the RHWIC submitted its trial brief, the County agreed to disclose 38 of these remaining 43 documents (with allegedly irrelevant portions redacted). Because the redacted portions were often interspersed with fragments of information regarding the Initiative, the RHWIC requested the Court take extra care to ensure all relevant information was produced. Ultimately, the Court did find additional information that should have been disclosed.
Case law on improper expenditures of public funds for a partisan purpose distinguishes between two types of government action: (1) legislative lobbying and/or outright election campaigning for a particular candidate or issue, and; (2) informational services that are potentially biased. The first category is not applicable to the situation presented here because the actions of the Board did not amount to an instance of clear-cut public advocacy against the RHWI- i.e., the Board did not stamp a blatant message on the cover of the report such as, "VOTE NO ON THE RURAL HERITAGE AND WATERSHED INITIATIVE." However, the Board and County staff's actions suggest a more covert, yet equally pungent, attempt to influence public opinion. The second category noted above clearly is applicable. Based on the direct and circumstantial evidence noted herein, County's adverse position to the Rural Heritage and Watershed Initiative was made clear to all involved. Because the County utilized taxpayer funds to convey only a negative image of the RHWI, and did not accurately represent the likely beneficial impacts to the citizenry and the environment with passage of the Initiative, the law was broken. To protect the future of all initiative measures in the County of San Diego, the County's illegal activities must be further exposed, and the individual supervisors and staff held accountable.
On March 14, 2000, the Board of Supervisors agreed to pay approximately $65,000 in attorney's fees for its unwarranted withholding of public documents from the RHWIC.
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