A nine-month running lawsuit brought by the San Antonio Heights Association against the City of Upland and San Bernardino County over the move last year to force more than 77,000 residents of Upland and San Antonio Heights into a fire service zone is persisting despite repeated failed efforts by government officials to smother it. As the matter gallops toward an August trial date, the prospect looms ever larger that the lawsuit will not resolve without significant impact legally, procedurally and politically.
In an effort to generate needed revenue, cash-strapped Upland last year arranged to shutter its 111-year-old fire department and annex the entirety of the 15.66 square miles within its city limits into one of the county’s fire service zones, simultaneously having the county’s fire department replace the municipal fire department, and imposing on its residences and businesses a per-parcel assessment of $152.68. In that process, the county agency charged with overseeing jurisdictional issues, the Local Agency Formation Commission, signed off on making the changes and further arranged for Upland’s northerly unincorporated county area neighbor, 2.62-square mile San Antonio Heights, to be absorbed into the county service area as well and likewise be assessed the $152.68 per year. That ploy essentially allowed the city to impose what was tantamount to a new tax on its residents without having to meet the requirement of holding a citywide vote to approve the tax, as is normally required under California law. Instead, the assessment was scheduled for ratification by a so-called protest vote, by which the Local Agency Formation Commission, known by its acronym LAFCO, offered to receive protest letters from those to be impacted by the annexation during a specified one-month period. Anyone who did not mail to LAFCO a letter objecting to being brought into the assessment district was presumed to have supported the annexation. Apathy and a lack of public awareness about the significance or very existence of such protest opportunities doom all such protest votes to failure. Historically in California, such protest votes never succeed.
The San Antonio Heights Association, encouraged and supported by a number of Upland residents, retained attorney Cory Briggs to initiate legal action to challenge the annexation. In the lawsuit Briggs and his law partner Anthony Kim drew up, they asserted that the “protest vote” is not an actual vote.
The city, represented by attorneys James Markman and Donald Wagner, the county, represented by Laura L. Crane, and LAFCO, represented by Ginetta L. Giovinco, have staked their assertion of the legality and enforceability of the assessment district on the precedent-setting case of Sunset Beach v. Orange County LAFCO, in which an appellate court ruled against a small population of residents living in Sunset Beach, an unincorporated county area in Orange County adjoining and partially surrounded by the City of Huntington Beach. Those citizens objected to being annexed to the city with the requirement that they also pay preexisting Huntington Beach special assessment district taxes. Those Sunset Beach residents maintained they had not voted on the assessments and therefore should not be forced to pay them. After the trial court agreed with the plaintiffs on the grounds that Proposition 218 protected them against taxes that they had not voted on, 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.
In the Sunset Beach case, the property was annexed into a nearby and adjacent jurisdiction and the appellate court held that Proposition 218’s protection does not apply to improvement assessments already in place. In the case of Upland and San Antonio Heights, however, they were annexed into the county’s Fire Protection Zone 5, which is neither adjacent to nor near them. Rather, Fire Protection Zone 5 provides county fire service to the communities of Silverlakes and Helendale, which are located in the Mojave Desert south of Barstow, 64 miles driving distance or 49 miles as the crow flies from Upland and 47 miles from San Antonio Heights.
Moreover, according to Briggs, Proposition 26 offers even more comprehensive protection against any new taxes not approved by a vote than does Proposition 218. Proposition 26 was passed in 2010, the same year that the Sunset Beach case was ruled upon, and was not yet in effect when the Sunset Beach case was considered and a decision on it rendered.
The San Antonio Heights Association suit has survived not one but three attempts by the county, the city and LAFCO to have it dismissed, and the judge hearing the case, David Cohn, has indicated he sees merit in some of the issues Briggs and Kim have raised. Trial is set to begin on August 22.
At stake in the case is a principle that is larger than San Antonio Heights, Upland, the county fire department, LAFCO and the county. While any ruling by Cohn in this case at the trial court level is not binding beyond the immediate matter being litigated, were he to rule that the assessment district was not properly imposed without an actual vote, that could resonate throughout the state if the governmental entities seek to appeal such a ruling and it is upheld. Such an eventuality would have serious procedural consequences on other cities, counties or jurisdictions that have relied on protest votes to usher new taxes in the side or back door. Such a ruling in favor of San Antonio Heights in the immediate case would dissolve the assessment district at the very least and likely result in the City of Upland having to put its now dismantled fire department Humpty Dumpty-like back together again.
On another level, the political one, the continuation of the lawsuit at this time, which in any event is unlikely to be resolved prior to the June 5, 2018 Primary Election, will most assuredly have an impact on Second District Supervisor Janice Rutherford’s effort to gain reelection for the second time. Rutherford, despite importuning from many of her constituents in Upland and San Antonio Heights for her to take a stand against the annexation and the imposition of the assessments, backed the City of Upland and LAFCO in proceeding with the annexation. Previously, Ken Petschow, the president of the San Antonio Heights Association, took out papers to run against Rutherford, citing her unwillingness to use her authority on the board to attempt to countermand the annexation. Petschow, however, decided against filing his candidacy application when Marc Steinorth, the incumbent assemblyman in the 40th District declared his candidacy in opposition to Rutherford, who was first elected in 2010. Steinorth has latched onto Rutherford’s support of the fire annexation as an issue in the head-to-head contest, which will be decided in June. Some 19,000 voters in Upland and San Antonio Heights are impacted by the assessments, and a good number of them are madder than wet hornets over the fashion in which the board of supervisors in general and Rutherford as their representative on the board disregarded their wishes. The unresolved lawsuit and the continuance of the assessments might prove a deciding factor in the race.
-Mark Gutglueck