From the outset, many people believed the Upland City Council and city manager Martin Thouvenell were trying to cram a square peg into a round hole by shuttering the Upland Fire Department and then annexing the entirety of the city along with neighboring San Antonio Heights into a county fire protection services district, FP-5, so the county’s fire agency could assume firefighting duty in the City of Upland.
Despite the substantial citizen opposition to the concept, in overcoming that opposition Upland City Hall had the dual advantages of its administrative authority as well as the agency-to-agency privilege extended to it by the division of county government which oversees border and jurisdictional disputes. Moreover the sheer procedural complexity of the annexation protest process made trying to stop the annexation a David versus Goliath proposition.
As it now turns out, however, there are literally thousands of Davids lining up to take on Goliath and the odds that the city will be able to simply close out its 111-year-old municipal fire department and hand over the duty for fire protection to the county as a done deal carries with it a legal and financial risk city officials had not counted upon.
Last year the Upland City Council gave assent to studying a proposal to annex the Upland Fire Department and transfer its fire stations, personnel and assets into San Bernardino County’s Valley Fire Service Zone. By the time that proposal was fully worked up by the staffs for the San Bernardino County Fire Department and the San Bernardino County Local Agency Formation Commission so it could be submitted to the commission itself, it had been altered to include annexing not just the 15.65 square miles within the Upland City Limits but the unincorporated community of San Antonio Heights, which lies to the city’s north. Despite some opposition from Upland residents and the overwhelming opposition of residents in San Antonio Heights, the LAFCO board approved the annexation in March. As part of the takeover, property owners in Upland as well as within San Antonio Heights will have to pay an annual $152.68 per parcel assessment that is subject to a three percent per year increase. Residents are given the opportunity to stop the annexation, but only through the process of a protest vote. That protest vote has to be lodged by residents in the form of a LAFCO protest form. In this way, anyone who does not mail in such a letter of protest containing exact and precise information will be deemed to have assented to the annexation. The original window to register a protest ran from May 12, through June 14, 2017. Under the original deadline, which has since been extended, protest forms were to have been filled out and dated between those two dates in order to qualify.
Objections to the changeover have proven multifold.
One issue was economics. For 111 years, Upland’s fire department has existed as a part of Upland’s municipal operations, paid for and supported by the revenue stream that pays for and supports city services generally, ad valorem property taxes, sales taxes and other pass-through revenues from the state and federal government. In justifying the dissolution of the fire department, city officials cited “greater efficiency” and “cost savings.” Why then, many residents asked, was every household in the city now being called upon to pay an additional $152.68 per year for fire protection? Some interpreted that as double-dipping by the government, i.e., making taxpayers pay twice for the same thing. The city was not providing a commensurate reduction in ad valorem or sales tax back to the city’s residents, the critics observed. When pressed, city officials acknowledged that the revenue generated from the assessment would go directly to the county to defray over 30 percent of the fire department’s operational costs. The city will make up the difference between what its residents and businesses pay through the assessment and the county’s actual cost of delivering fire protection, which is anticipated to be almost $2.5 million less than the $11,986,104 million the city is paying to operate its fire department in the current 2016-17 fiscal year. Thus, with the assessment generating $3,346,440 [21,918 parcels X $152.68], the city stands to net $5.846 million or thereabouts in savings. Taxpayer advocates characterized this move as sleight-of-hand, a maneuver by which the city council manipulated the process to increase taxes by $3.3464 million per year without a required vote of the city’s voters, not to mention a diminution of the quality of fire protection service those residents will sustain. Pursuant to the county takeover, there would also be a higher fee structure imposed upon businesses and developers in the City of Upland, which is cataloged in an 18-page schedule.
A second issue is the loss of local control. By closing out the municipal fire department and transferring that function to the county fire department, the city council will surrender control over what will be the de facto fire department to the county board of supervisors, not to mention the department’s vehicles, equipment and real estate. As only two of the board’s members, the Fourth District supervisor and the Second District supervisor, represent Upland, the majority of the political decision-making body overseeing fire protection issues in Upland will not be answerable to the city’s residents.
A third issue is the level and quality of service. Despite the consideration that the city’s residents will be paying more for the service, the actual amount of money provided toward operations will decrease. In this way, some fear, the level, quality and intensity of service will diminish and the ability and opportunity to customize that service in accordance with the community’s needs, unique features and qualities and its idiosyncrasies is being forever lost.
A fourth issue is the pride the city’s residents take in Upland, which is known as “The City of Gracious Living.” The fourth municipality of the county’s current 24 cities to incorporate in 1906, Upland boasts the sixth highest per capita income among the county’s incorporated cities and the eighth highest per capita income among its 47 major communities, incorporated or unincorporated.
A fifth issue is the consideration that the Upland City Council did not have the authority to speak for San Antonio Heights, and it was upon the Upland City Council’s application for the dissolution of the Upland Fire Department and the city’s inclusion in a county fire protection service zone that the San Bernardino County Local Agency Formation Commission, without a request by San Antonio Heights residents or anyone speaking on their behalf, made a determination that San Antonio Heights should be included in the terms of the City of Upland’s change of organization. Available information suggests the San Bernardino County Fire Department included San Antonio Heights, which is not currently subject to a fire service assessment, in the takeover proposal to be able to lower the cost of the service proposal provided to the City of Upland.
A sixth issue is that the San Bernardino County Local Agency Formation Commission (LAFCO), without consultation with Upland or San Antonio Heights residents, elected to include those areas in San Bernardino County Fire Protection District Service Zone FP-5, which is 48 miles distant from Upland as the crow flies and 64 miles removed from it in driving distance. Zone FP-5 was selected as the district into which both the city and San Antonio would be annexed, despite the consideration that San Antonio Heights is currently within a completely separate service zone, the Valley Service Zone.
Kathleen Rollings-McDonald, the executive director of LAFCO, on June 7 told the Sentinel that in the judgment of LAFCO staff and the full commission, placing Upland into Zone FP-5 was a responsible and defensible decision from a legal and safety standpoint.
“It is a service zone to augment fire protection and emergency medical service,” she said. “With the administration of fire protection and emergency medical operations the distance between differing operations is not relevant to the provision of that service. The county fire department proposed the annexation into the FP-5 service zone. Different areas of the zone do not need to be contiguous under the law.”
Despite widespread opposition to the city’s move as blessed by LAFCO, those wishing to stop it were confounded by the peculiarity in California law with regard to annexations. Instead of holding a straightforward election of those to be impacted by the annexation, a governmental entity that gets the approval of the Local Agency Formation Commission for such an annexation and accompanying assessment district need only conduct a “protest vote” of the residents or citizens impacted. The terms of a protest vote hold that unless a landowner or registered voter in the impacted area explicitly casts a no vote, i.e., files or mails in a LAFCO protest form to LAFCO, he or she is deemed to have voted in support of the annexation. If 25.01 percent to 50 percent of either the parcel owners or the registered voters in the impacted jurisdiction cast such negative ballots, then a traditional election vote on the annexation is held. If any number greater than 50 percent lodge protest forms with LAFCO, then the annexation fails outright. Protest votes that effectively prevent an annexation are extremely rare, close to nonexistent. Indeed, within the last two years, in the cities of San Bernardino, Twentynine Palms and Needles, the dissolution of local or municipal fire departments took place and those cities were annexed into a county fire protection/assessment district, likewise Zone FP-5, subject to a protest vote procedure, which in each case came nowhere near garnering sufficient protest forms in the protest period to stop the annexations. The Upland/San Antonio merger into San Bernardino County Fire Protection District Service Zone FP-5 seemed no different, although there has been a spirited effort by a core of Upland and San Antonio Heights residents to encourage their respective fellow residents to lodge protest forms.
Accompanying that effort, several attorneys, some of them coordinating with one another and some of them acting independently, have studied the matter, examining it from a variety of legal perspectives, seeking to find a procedural or legal error that Upland or LAFCO might have engaged in which might lead to the undoing of the annexation. Within the last fortnight, one of those attorneys hit definite pay dirt while yet two other legal issues appear to hold further promise.
Joe Farrell, an attorney and a resident of San Antonio Heights, picked up on the consideration that in LAFCO’s notification of the owners of the more than 21,000 parcels located within the confines of the Upland City Limits and inside the borders of San Antonio Heights it had routinely omitted making notification of women who are co-owners with men, in the vast majority of cases their husbands, of parcels affected by the proposed annexation. Farrell in May lodged an objection with LAFCO, maintaining that a significant number of women had not been provided with legal notice. This was, Farrell maintained, tantamount to wholesale gender discrimination. LAFCO attorney Paula C.P. de Sousa Mills, in a response to Farrell dated May 31, denied there had been any violation of the rights of women as a class in the LAFCO action.
“SB LAFCO affirmatively states that no action it has taken with respect to the reorganization has in any way, whether intentionally, incidentally, or otherwise, discriminated against property owners based on gender,” de Sousa Mills wrote.
LAFCO, however, endeavored to look into the matter and determined that in sending out the protest notices/invitations it had used property tax billing information gleaned from lists provided by the San Bernardino County Assessor’s Office. In those cases where there are two owners listed – generally speaking a man and wife – the man is listed first. The notices were addressed to only the first individual listed. This omitted a significant number of parcel owners who are women.
Farrell’s having confronted LAFCO with the oversight, given the prospect that he was very likely to take the matter further, prompted LAFCO, i.e., it’s executive director Kathleen McDonald in consultation with de Sousa Mills, to make a decision to repost notices, this time including ones to all of the parcel owners. Those notices are going out today, June 12. As a consequence, the number of property owners recognized by LAFCO in the combined area of Upland and San Antonio Heights has been increased from 21,413 to 35,416, an increase in 13,713 owners, which increases the number of protest votes needed to block the annexation. Nevertheless, the protest period has been extended to July 11 and annexation opponents are gamely continuing their protest form signing drive.
Another legal issue which annexation opponents believe might be utilized to challenge the county fire department takeover consists of the inclusion of San Antonio Heights into the proposal. San Antonio Heights residents are not eligible to vote in Upland City Council elections and the Upland City Council does not represent or speak for the San Antonio Heights or its residents. That the LAFCO board used the Upland application as a pretext to usher San Antonio Heights into the annexation could prove in a court of law that the annexation was illegitimate, some lawyers have suggested.
City and county officials have asserted the move to effectuate the annexation and push both San Antonio Heights and Upland into the pre-existing Zone FP-5 and impose the fire service assessment on those communities’ residents, landowners and businesses is legally justifiable under the precedent setting case of Citizens Association of Sunset Beach v. Orange County LAFCO. In that matter, a group of Sunset Beach residents miffed at the imposition of taxes on them after what was essentially a hostile annexation by the City of Huntington Beach sued, arguing they had not been provided with an opportunity to vote on what for them were new taxes. After prevailing at the trial court level, an appellate court ruled that the annexation approved by the Orange County Local Agency Formation Commission stood and that the pre-existing taxes and assessments in Huntington Beach then being imposed on the residents of Sunset Beach did not require ratification in a traditional ballot election but could be confirmed with a protest vote. Lawyers connected with the annexation opponents in Upland and San Antonio Heights, however, have taken stock that Upland and San Antonio Heights are not unincorporated county areas being absorbed into an existing municipality. Rather, in the case of Upland, it is an existing municipality being absorbed into a service area originally created for an unincorporated county area, a significant difference. A properly lodged challenge could lead to a determination that the annexation is legally invalid, those lawyers have theorized.
John T. Goss Jr., a San Antonio Heights resident and the chairman of LAFCO Protest Sub-Committee, this week told the Sentinel, “There are significant issues at stake with the implementation of the LAFCO 3216 annexation proposal. Upland and San Antonio Heights homeowners will be saddled with an unconstitutional tax of $152.63 per year, with annual increases of 3% each subsequent year forever. LAFCO has clearly attempted to establish as many roadblocks as possible in front of affected residents who are demanding a voice on this tax. Residents should not have to jump through hoops to exercise our Constitutional Right to a vote on any new tax.”
Continuing, Goss said, “San Antonio Heights residents, who are already serviced by San Bernardino County Fire are being sucked into the FP-5 tax zone purely because the County of San Bernardino Fire District needs the San Antonio Heights Station No. 12, to service the northwest portion of Upland, which has no coverage due to the fact that the City of Upland and San Bernardino County Fire are shutting down Station 162, located on San Antonio Avenue and 20th Street. The County of San Bernardino County Fire Division/City of Upland’s plan falls apart without Station No 12 being annexed into FP-5. The city management has sold the people of Upland down the river, again. For years, city management has failed to adhere to sound financial procedures and now they find themselves in yet another financial mess and are trying to solve their mismanagement on the backs of the taxpayers. The city of Upland’s actions will result in the residents of San Antonio Heights being dragged into this without our consent. We are joining with citizens of Upland who are likewise opposed to the additional, unconstitutional tax forced upon them.”
Goss intoned, “It is time that this playground politics stops, and that the City of Upland get a real city manager with financial background, to run the City of Upland the way it should be run. The City of Upland is in trouble and needs strong, educated, and responsible leaders to bring the city out of this extreme financial situation that the current and past leaders have put this city into.”  -Mark Gutglueck