Annexation Leaps Over Procedural Hurdle; Legal Test Awaits

by Ruth Musser-Lopez
The City of Upland this week vaulted one procedural hurdle but now must confront a potentially more daunting legal one in its effort to divest itself of its municipal fire department and assign fire protection service in the city of 74,000 to the county. San Antonio Heights, which lies north of Upland, has been pulled into the circumstance with Upland. Now, a contingent of residents from both communities has been prompted to activism in resisting a takeover that was neither requested nor perceived as necessary.
At the July 11 hearing held within the meeting chambers at Upland City Hall, it was ascertained that those opposed to the annexation of Upland and San Antonio Heights into the county’s Fire Protection District 5 had achieved nowhere near the needed threshold of 25 percent of the Upland and San Antonio Heights voters or parcel owners to trigger an up-or-down vote on the annexation, let alone the 50 percent plus one threshold required to nix the annexation outright.
In November the Upland City Council had voted to look into the possible annexation of Upland into a county fire service zone, and in December, Upland’s interim city manager, Martin Thouvenell, had filed papers with the San Bernardino County Local Agency Formation Commission, to initiate such an annexation.
In March the San Bernardino County Local Agency Formation Commission (LAFCO) board had voted to accept the application and then augmented it with the addition of neighboring San Antonio Heights into the mix, such that Upland and San Antonio Heights are to be placed into Fire Protection District 5 and all of its landowners assessed $152.68 per year. As a consequence, the Upland Fire Department is to be shuttered and the San Bernardino County Fire Department will now serve as the city’s de facto fire department. The county fire department was previously serving San Antonio Heights. Now residents there will be consigned to pay $152.68 for that service.
The annexation was carried out essentially under the authority of the Upland City Council, the San Bernardino County Board of Supervisors and the LAFCO board. The only means Upland and San Antonio residents had of preventing the takeover was by means of the aforementioned protest vote. It is a peculiarity of California law that when annexations are effectuated, those to annexed are deemed to have voted in favor of the annexation unless they lodge a protest.
A number of Upland and San Antonio Heights residents who are opposed to the county placing their communities into the fire service zone in question, which lies more than 47 miles distant as the crow flies from Upland and some 65 miles diving distance away, retained Upland-based attorney Cory Briggs to legally contest the city’s, county’s and LAFCO’s action.
Briggs was in the San Bernardino courtroom of Judge David Cohn on Monday to seek a restraining order against those three entities while the lawsuit he filed last week is adjudicated. Cohn said at that point it was premature to grant the restraining order, as the tallying of the protest votes, which might have stopped the annexation, had not occurred. Briggs was back on Thursday and from here on out the matter is in Cohn’s hands.
The city, the county and LAFCO are relying on the authority of a case, Sunset Beach vs. Orange County LAFCO, in confidently pronouncing that the annexation of Upland and San Antonio Heights into Fire Protection Zone 5 is permitted. The Sunset Beach case involved some residents of Sunset Beach, which was an unincorporated county area in Orange County adjoining and partially surrounded by Huntington Beach, objecting to paying preexisting Huntington Beach assessments after Sunset Beach was annexed into Huntington Beach. Those Sunset Beach residents maintained they had not voted on those assessments and therefore should not be forced to pay them. After the trial court agreed with the plaintiffs, Orange County LAFCO appealed to an appellate court, which ruled that the Sunset Beach residents had to accept the assessments once they were a part of the city.
Briggs is prepared to argue that the circumstance involving Upland and San Antonio Heights is significantly different from that in Sunset Beach. In the first place, Sunset Beach was an unincorporated county area that was annexed into an existing municipality and Sunset Beach was logically within Huntington Beach’s sphere of influence.
In the case of Upland, it is not an unincorporated county area but an existing municipality. Furthermore, whereas Huntington Beach was immediately adjacent to Sunset Beach, both Upland and San Antonio Heights are far removed from Helendale and Silver Lakes, and are in no way adjacent or contiguous. Nor are San Antonio Heights and Upland in Helendale’s or Silver Lake’s sphere of influence.
At the hearing at the Upland City Council chambers on Tuesday night, Teri Lyn Whitfield asked LAFCO Executive Director Kathleen Rollings-McDonald, “So when I have a fire, where will a fire engine come from?”
Rollings-McDonald said, “Closest available. Mutual aid for fire will come from all around you.”
Most of the same objections were repeated in Upland as were heard in the other communities where forced annexations into county fire service areas occurred, pertaining mainly to the loss of local control, loss of the fire department and more taxes, taxes that the taxpayers never had a say in at the ballot box. “Its an unfair tax—those who live in a bungalow pay the same as a Super Walmart” John Goss a San Antonio Heights resident said.
After the hearing, Rollings-McDonald announced that LAFCO is “not validating any protest submission, just counting to get a raw count on how many registered voters and how many land owners voted.” She announced that 4,099 signatures were received at the hearing and 831 were received at the LAFCO office for a total of 4,930. Of that number 11.9% of the 41,301 registered voters protested, which included the 3044 signatures gathered at the hearing and 777 at the LAFCO office. Within the territory, 4,621 or 13.2% of the 35,526 property owners protested, thus “Neither category meets the 25% quota” she said, “as there were insufficient signatures.”
Anthony N.Kim, with Briggs Law Corporation representing the San Antonio Heights Association, stated in the opening brief on Thursday, “That [the Sunset Beach] case is distinguishable in several ways, the most important being that Sunset Beach deals with the island-annexation statute wherein 971 Sunset Beach residents were annexed by 190,000 Huntington Beach residents. By contrast, defendants/respondents are attempting to impose a special tax approved by I,022 voters in Helendale on the 80,000 residents of the City of Upland and San Antonio Heights.” Making things worse, Kim said, the narrow, specific purpose of the special tax approved by Helendale voters was “to convert the [County Service Area] Fire Station #4 from a paid-call fire station operation to a 24-hour per day full-time firefighters/paramedic-staffed fire station within the improvement zone. Common sense tells us that any attempt to impose this special tax – which was approved for a specific purpose not applicable to the City and San Antonio Heights and by voters approximately 70 miles away – is unquestionably illegal.”
In response to the plaintiffs, the county asserted through its attorneys that it had “nearly” no involvement in the process and pointed to the fire district, claiming it to be a separate agency from the county. However, the an Bernardino County Board of Supervisors on December 20, 2016 passed a resolution, “Resolution No. 2016-242,” “acting as the governing body of the San Bernardino County Fire Protection District.” That body recommended adopting Resolution No. 2016 242 requesting LAFCO to commence proceedings for the sphere of influence amendment and reorganization to annex the City of Upland fire services into San Bernardino County Fire Protection District, its Valley and FP-5 service zones.

Supporting the item were supervisors Robert Lovingood, Janice Rutherford, James Ramos and Curt Hagman. Supervisor Josie Gonzales was absent.
Despite the Rutherford’s approval of the annexation, Linda Cagle, a San Antonio Heights resident told those assembled at Upland City Hall on Tuesday night that Rutherford told her twice that she had nothing to do with the annexation.

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