The San Antonio Heights Association has filed suit against the San Bernardino Local Agency Commission, the County of San Bernardino and the City of Upland in an effort to contest the intended closure of the 111-year-old Upland municipal fire department and its replacement by the county fire division under an arrangement that imposes on Upland and neighboring San Antonio Heights an unwanted annexation into a distant district together with a special tax without a vote of the electorate, in violation of the California Constitution.
The City of Upland moved toward making that takeover last November with a unanimous vote by the city council to look into such an arrangement. On December 5, 2016, interim Upland City Manager Martin Thouvenell signed the documents with the Local Agency Formation Commission (LAFCO) to make that application. In March, over the substantial opposition of Upland residents and the even more substantial protest of San Antonio Heights residents, the LAFCO board approved a plan to combine San Antonio Heights, which was previously provided fire protection service by the county through its Valley Service Zone, with Upland and then place them in FP-5 [Fire Protection Zone 5], which was formed more than a decade ago to provide county fire service to the communities of Silverlakes and Helendale, which are located in the Mojave Desert, 64 miles driving distance or 49 miles as the crow flies from Upland.
Despite the fact that previously the fire protection provided to both Upland and San Antonio Heights was defrayed by the property tax residents in those communities pay, an assessment of $152.68 per year is to be levied on all property owners to cover a portion of the county fire district’s operations in Upland and San Antonio Heights going forward.
According to the suit, which was filed on behalf of the San Antonio Heights Association by attorneys Cory Briggs and Anthony Kim, “For all intents and purposes, the levy of the special tax has been authorized without a vote of the electorate and this lawsuit challenges any and all future levies of the special tax without a vote of the electorate. Plaintiff has no plain, speedy, adequate remedy in the ordinary course of law, since its members and other members of the public will suffer irreparable harm as a result of defendants’ violations of the law, as alleged in this pleading. The approval of the annexation and the special tax without a vote of the electorate also rests on defendants’ failure to satisfy a clear, present, ministerial duty to act in accordance with those laws. Even when defendants are permitted or required by law to exercise their discretion in approving matters under those laws, they remain under a clear, present, ministerial duty to exercise their discretion within the limits of and in a manner consistent with those laws. Defendants have had and continue to have the capacity and ability to approve the annexation and special tax within the limits of and in a manner consistent with those laws, but defendants have failed and refuse to do so and have exercised their discretion beyond the limits of and in a manner consistent with those laws.”
The plaintiffs allege that they have been disenfranchised and their right to vote on special taxes has been usurped by an illegal annexation of the territories of Upland and San Antonio Heights into a fire protection zone located in a remote, discontiguous area of the desert where only the zone’s original residents were provided the opportunity to vote. The complaint describes the action by the City of Upland, LAFCO and the county as an “illegal annexation,” which entailed violations of law that are “fraudulent and/or an abuse of discretion intended to impose a special tax on residents of the City of Upland and San Antonio Heights without a vote.
To seal the deal, the San Bernardino County Local Agency Formation Commission scheduled a “protest vote” confirmation of the annexation and the assessment district formation – a mere formality – consisting of the San Bernardino County Local Agency Formation Commission’s invitation of property owners and voters within each of the jurisdictions to lodge letters of protest against the annexation. Each protest letter received was to be counted as a single vote against the annexation. Any resident or voter not lodging a letter of protest was to be presumed to have voted to accept the annexation. Nothing approaching sufficient opposition appeared to be manifesting in Upland or in San Antonio Heights to achieve the 25 percent protest threshold, which would have triggered a traditional vote at Upland and San Antonio precincts on the annexation and the inclusion of the two communities into the assessment district, let alone the majority vote against the annexation which would have nixed it outright. The protest period began on May 12 and was previously set to conclude on June 14. Because the San Bernardino County Local Agency Formation Commission staff failed in the comprehensiveness of its noticing of the protest process to invite all of the property owners in Upland and San Antonio to lodge letters of protest, an attorney, Joseph D. Farrell, threatened the San Bernardino County Local Agency Formation Commission with legal action. The San Bernardino County Local Agency Formation Commission capitulated and extended until July 11 the protest period for Upland and San Antonio Heights.
But that “protest vote” is not an actual vote, according to Briggs and Kim.
“The special tax is invalid because it is not first being voted on by the city’s and San Antonio Height’s registered voters,” the suit states. “The county is authorizing the levy of the special tax without first submitting the tax for a vote by the general electorate. To the extent the county is requiring the property owners to lodge a formal protest before exercising its right to the franchise, such requirement unlawfully abridges the electorate’s right to vote on the special tax.”
Further, according to the suit, a “zone” of a district or special district, such as FP-5 is expressly excluded from the definition of a district or special district into which a city can be annexed into as per Government Code Section 56036(b)(10). “LAFCO is attempting to annex the city and San Antonio Heights into a zone of a special district without any legal authority to do so. Government Code Section 56119 requires that ‘any territory annexed to a district shall be contiguous to the district…’ Government Code Section 56031(a) defines ‘contiguous’ as ‘territory adjacent to territory within the local agency.’ Neither the city nor San Antonio Heights is contiguous to the unincorporated community of Helendale, where the Valley Service Zone and Service Zone FP-5 originated,” according to the suit. “The protest notice issued by LAFCO is misleading because it falsely states that the annexation will result in the transfer of all city fire employees to the county fire department and/or its Valley Service Zone. This defect in notice is material and violates plaintiff’s, its members’, and the public’s right to due process.”
Thouvenell, in signing the assessment district formation application with the Local Agency Formation Commission in his capacity as city manager on December 5 represented himself as the “proponent.” In connection with the application he signed a document which states: “As the proponent, I acknowledge that annexation to the San Bernardino County Fire Protection District may result in the imposition of taxes, fees, and assessments existing within the city or district on the effective date of the change of organization. I hereby waive any rights I may have under Articles XIII C and XIII D of the state constitution (Proposition 218) to a hearing, assessment ballot processing or an election on those existing taxes, fees and assessments.”
Thus, Thouvenell, on behalf of the taxpayers of Upland, signed away the rights the residents of Upland are accorded under the California Constitution in those articles and he directly and indirectly assumed all liability for violations of the Constitution, even as, in his capacity as city manager, he is indemnified by the residents of the city under the terms of his contract. By his action in signing the waiver, Thouvenell preempted, or sought to preempt, forever the ability of Upland’s residents to assert those Constitutional rights.
According to Briggs and Kim, this was a gross overstepping of the city’s authority.
“To the extent Upland’s city manager attempted to waive the electorate’s constitutional right to vote on the special tax by substituting the certification with the city’s application to LAFCO, such act was ultra vires as the Constitution does not allow for a public official to waive the electorate’s right to vote on a tax,” suit states.
Ultra vires is a Latin phrase meaning “beyond the powers.”
Briggs and Kim then quote a ruling in the case of Bear River Sand & Gravel Corp. v. Placer County, which states, “No government, whether state or local, is bound to any extant by an officer acting in excess of his authority even though it has received substantial benefits deriving from the ultra vires act.”
The lawsuit seeks “a judgment determining or declaring that the special tax and assessment do not comply with all applicable laws in at some respect, rendering either or both of them null and void, invalid, or otherwise without legal effect,” as well as “a writ of mandate ordering the defendants to rescind all approvals made in violation of the applicable laws” and “injunctive relief prohibiting the defendants from taking any of the actions relating to imposing the special tax and /or annexing the city and San Antonio Heights until the defendants comply with all applicable legal requirements as determined by the court.”
In addition, Briggs and Kim applied for a restraining order calling for “preventing the defendants/respondents from taking any further action related to the implementation of a protest procedure as a prerequisite to the electorate’s right to vote on the proposed special tax.”
The hearing on the restraining order is set to be heard by Judge David Cohn in Department S-26 at the San Bernardino Justice Center at 247 West Third Street in San Bernardino at 8 a.m. Monday July 10. –Mark Gutglueck