Today two interesting items hit the Venice Beach BID Council File. First there is a letter from LAFLA Attorney Shayla Myers demonstrating that the City did not follow the strictly mandated procedure for hearings prior to establishing an assessment district. The issue is that Council President Herb Wesson cut off public comment without allowing everyone present to be heard. This is completely acceptable under the Brown Act, which regulates general public meetings in California. In the cases covered by that law, agencies can put reasonable limits on public comment. However, the hearings that must be held before BIDs can be established are described in the Property and Business Improvement District Law of 1994, which at section 36623 requires that the “notice and protest and hearing procedure shall comply with Section 53753 of the Government Code.” This section requires…well, I’m going to let Myers explain:
Unlike public meetings held under the Brown Act, Cal Gov’t Code §54950 et seq., which applies to most public comment and under limited circumstances may allow reasonable limitations on public comment periods, Government Code Section 53753(d) provides that “[a]t the public hearing, the agency shall consider all objections or protests, if any, to the proposed assessment. At the public hearing, any person shall be permitted to present written or oral testimony.” (emphasis added). Only at the conclusion of the public hearing may ballots be unsealed and tabulated. See Gov’t Code §§ 53753(b); (e)(1).
This language is explicit and makes it clear that all members of the public must be allowed the opportunity to be heard at the hearing regarding the creation of a BID. By cutting off public comments and not allowing members of the community to speak, including stakeholders and property owners in the proposed BID who will be required to pay the assessment, the Council violated the strict provisions of Government Code Section 53753. In doing so, the Council invalidated the balloting process necessary to allow it to create the BID and impose an assessment under Streets and Highways Code Section 36600 et seq.
The letter goes on to say that it’s not possible under the statutorily mandated procedure to just do one step over again. The whole thing must start again. This argument seems right to me. The difference between this situation and an ordinary public meeting is that the City is seeking to impose what’s essentially a tax, so the requirements must be very strict. It’s probably related to Howard Jarvis and Prop 13 in some way that I can’t trace. In any case, whether or not the argument turns out to be correct, and I think it will, it sure looks like the first move in a series that’s going to lead fairly directly to a lawsuit against the City of Los Angeles, which will be a welcome development.
The second item was City Clerk Holly Wolcott’s report on the tabulation of the ballots. It’s no surprise that the BID was approved on the basis of the ballots, but it’s worth looking at the technical details of the process. First of all, note that there were 164 ballots cast, with 85 supporting the BID and 79 opposed. This looks democratic, but recall first of all that the City cast a bunch of those ballots.
Furthermore, and this is yet another weirdo quirk in the method of BID balloting, for the BID to be approved it’s only necessary that a majority of the ballots cast be pro-BID rather than a majority of the ballots sent out.1 Note that parcels are combined on ballots in some incomprehensible way and also that Holly Wolcott posted a PDF instead of the original spreadsheet of the tabulation, both of which make the data incredibly hard to analyze.
However, it appears that the number of ballots that weren’t cast exceeds the total that were cast. It certainly exceeds the number supporting the BID. Again, because only a PDF is available, it’s not possible to tell easily if the value of the properties that didn’t cast ballots exceeds the value in favor. If so, though, it adds extra urgency to the problem of the shroud of secrecy that attends BID creation in Los Angeles. For instance, no one will release the mailing list used to send out ballots, which makes it impossible for organizers to talk to the property owners who didn’t submit ballots.
Ideally this kind of information would be released to both pro-BID and anti-BID forces so that a robust public discussion could precede BID formation. Second best, actually not good at all, would be for the City to be consistent and withhold this information from everyone. However, when I asked CD11 for the list, Laura McLennan told me to ask Holly Wolcott. Holly Wolcott told me to ask shadowy BID consultant Tara Devine, and shadowy BID consultant Tara Devine ignored me. She doesn’t ignore everyone, though.
Check out this email chain from July 2016, where local
architect IT guru Jed Pauker asks Taylor Bazley of CD11 for some BID info, Bazley doesn’t have it, makes the usual bullshit assertion that the BID is not being organized by the Council office, loops in Bonin aide Debbie Dyner Harris and Shadowy BID consultant Tara Devine, and tells Jed Pauker to ask her for the information. She sends the goods right away. What else would she do? The BID is not actually being organized separately from the Council office, and shadowy BID consultants ignore such hints at their peril. Hence actually CD11 and the rest of the City are only withholding information from anti-BID forces. Which makes it worse. I expect them to be sleazy, I suppose, but not to be so blatantly amateurish about it. I guess I’m expecting professional sleaze, but am disappointed even in that.