State AG Repudiates LAFCO For Facilitating Hostile Annexations

On June 1, California Attorney General Kamala Harris and her office issued a legal opinion which dealt a fatal blow to the current practice in San Bernardino County of allowing cities to undertake so-called “hostile annexations” of some properties lying at those cities’ peripheries.
Such hostile takeovers come about when cities annex pockets or islands of unincorporated county land where less than a majority of the landowners or residents are in favor of the takeover.
The San Bernardino County Local Agency Formation Commission is the local agency which hashes out border disputes and jurisdictional issues.  In recent years, the commission has construed specific portions of the government code pertaining to annexations, §§ 56300-57550, to facilitate the takeover agenda of local cities.
In the last decade, controversy has erupted over that policy, as some of the landowners who did not want to be annexed into cities claimed their rights under the law had been violated.
Three of the county’s cities in particular – Fontana, San Bernardino and Colton – have made aggressive efforts to annex, or attempt to annex, properties. There has been considerable opposition to annexation in all three places, and the tactics used by the cities in conjunction with LAFCO in those cases have been deemed by annexation opponents to be especially egregious.
Between 2000 and 2009, Fontana expanded its boundaries from 35 square miles to 42.4 square miles, in some cases over the vociferous opposition of those who did not want to become part of the city. Fontana had better luck in its expansionist drive than the city of Colton, where that city’s manifest destiny has stalled, and the city of San Bernardino, where the annexations were granted but then rescinded in the face of a court challenge.
In 2006, Colton tentatively planned to use a provision of state law that allows cities to annex without a vote unincorporated island areas of 150 acres or less that are substantially or totally surrounded by the annexing city to gobble up seven unincorporated county islands totaling 535 acres  north of Interstate 10 and in Reche Canyon. Before the city council acted on forwarding that request to San Bernardino County LAFCO, a significant portion of the roughly 2,000 county residents whose properties would have been brought into Colton protested to varying degrees, and the city council declined in September 2006 to follow through with the annexation filing. But the following year, then-assistant city manager Mark Nuami resurrected a version of the annexation request, which was never filed with LAFCO but which remains sitting on a shelf, ready for filing. This plan has greatly alarmed the residents potentially to be annexed.
In 2009, the city of San Bernardino, relying on the same provision of state law relating to the annexation of 150 acres or less, filed with LAFCO to annex six county islands at its periphery totaling 354 acres. But some of those annexation requests qualified as piecemeal takeovers that to some appeared to violate the law. In those cases, a. few of the islands were contiguous, such that if they had been considered together they would have totaled more than 150 acres. In November 2009, the LAFCO board approved the annexations without allowing the residents to be annexed to vote on the issue.
At that point, a resident of one of those islands, Sue Hulse, challenged the city and LAFCO, ultimately spending $100,000 in legal fees to have lawyers argue that the city’s annexation of all six pockets of unincorporated county property at once stretched that law unto breaking and that three spreads of land that were annexed were adjacent and together totaled more than 150 acres.
While Hulse’s challenge was pending in San Bernardino Superior Court, on February 22, 2010 the November 18, 2009 annexations were confirmed by LAFCO and responsibility for servicing those areas transferred from the county to the city.
On March 9, 2010, however, Judge Robert Fawke granted Hulse a stipulation that called for the city to discontinue all of its action with regard to the annexations. Subsequently, on a motion by the city, the case was transferred to the court of Judge Donald Alvarez.
Hulse asserted the city was cutting corners in more ways than one in that it shortchanged the impacted residents of their right to self determination and then forced the takeover to occur without having adequate financial resources to service the area. In the meantime, the county agreed to resume providing services to the area while the matter was being litigated. A stipulated judgment accepted by Judge Alvarez ended Hulse’s case on August 13, 2010. Under the terms of the judgment, LAFCO was to bear two thirds and the city of San Bernardino was to bear one third of Hulse’s $100,000 legal bill.
In the meantime, county residents alarmed at LAFCO’s annexation policy approached state senator Gloria Negrete-McLeod with their concerns. Negrete-McLeod in turn wrote to then-state attorney general Jerry Brown, requesting his office’s interpretation of the legal issues relating to hostile annexations. After Brown was elected governor, the matter was passed along to current State Attorney General Kamala Harris for her office’s legal opinion.
Many San Bernardino County cities, calculating that such resolve as was shown by Hulse in testing the issue is relatively rare, wanted LAFCO’s policy of facilitating hostile annexations to be perpetuated. While they were encouraging the county and LAFCO to do just that,  county chief administrative officer Greg Devereaux last year advised the county’s cities that the aggressive annexation of pockets of county land would be put on hold, at least temporarily.
In an interoffice memo with the subject heading “San Bernardino County Island Annexation Policies” dated May 4, 2011, Devereaux told LAFCO chief executive officer Kathleen Rollings-McDonald, “Through the San Bernardino County General Plan, San Bernardino County has adopted policies recognizing that cities are the logical service providers for municipal-level services and that unincorporated islands can be more effectively and efficiently served by surrounding cities. Although LAFCO has requested the county of San Bernardino to provide a definition of ‘entire island’, the county believes it prudent to await the California Attorney General’s  response to Senator Gloria Negrete-McLeod’s letter requesting a definition of ‘entire island.’
Earlier this month, on June 1, Harris and deputy attorney general Marc Nolan did just that, essentially repudiating LAFCO’s past practice of allowing cities to override the oppositional sentiment of those to be annexed by creating pockets smaller than 150 acres and annexing those without a vote.
With regard to “whether a LAFCO may split up an unincorporated island that exceeds 150 acres into smaller segments of 150 acres or less in order to use the section 56375.3 annexation procedures, and thereby avoid the landowner/voter protest proceedings that would otherwise be required,” Harris and Nolan wrote, “We conclude that it may not. To split an unincorporated island into smaller pieces for annexation is an action that simply may not be reconciled with the statutory requirement that, to utilize the protest-waiving procedures for island annexation under section 56375.3, a LAFCO must order the annexation of the entire island.
A LAFCO has no discretion to disregard this statutory mandate. The requirement is specifically designed to prevent piecemeal annexation as a means of circumventing the citizen participation in the annexation process.”
The attorney general’s office also said cities and local agency formation commissions are precluded from making creative use of the definition of an island and then splitting an island that is larger than 150 acres into a smaller piece to facilitate annexations.
Harris and Nolan wrote “an ‘island’ is an area of unincorporated territory that is (1) completely surrounded, or substantially surrounded—that is, to a large degree or in the main surrounded—by the city to which annexation is proposed or by the city and a county boundary or the Pacific Ocean, or (2) completely surrounded by the city to which annexation is proposed and adjacent cities. An island may not be a part of another island that is surrounded or substantially surrounded in this same manner.”
Furthermore, according to Harris and Nolan, “As to the question whether section 56375.3 requires the annexation of an ‘entire island’ or ‘entire unincorporated island’ as set forth, respectively, in subdivisions (b)(1) and (b)(2) of that statute, a straightforward reading of these provisions compels an affirmative response. Simply put, once the boundaries of an island are fixed, the question under section 56375.3(b)(1) becomes whether the island’s territory is 150 acres or less. If so, the territory is subject to annexation under the streamlined procedures of section 56375.3; if not, it is not subject to these procedures. A LAFCO lacks discretion or authority to use streamlined procedures to annex an island that exceeds 150 acres in area or that does not constitute the entirety of the island in question. Annexing part of a given island would run afoul of the command of section 56375.3(b)(1) and (b)(2).54 “
Rollings-McDonald acknowledged that LAFCO’s policy was at a variance with the definitions provided by the state attorney general’s office.
“The attorney general’s opinion does provide guidance on what constitutes an entire island and what is substantially surrounded,” Rollings-McDonald said. “We now intend to present to the commission an action for considering the modifying of its existing policy.“

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