The hopes of hundreds of San Antonio Heights residents that the court system, to which they had turned as a final refuge, would undo their consignment last year into a fire service taxing arrangement they were not permitted to vote upon were dashed this week. On Tuesday, Superior Court Judge David Cohn offered his tentative ruling that the City of Upland, the County of San Bernardino and the county agency that hashes out jurisdictional disputes followed the proper internal governmental procedures in shutting down Upland’s municipal fire department last year and brokering a shotgun marriage by which all of Upland and the neighboring community of San Antonio Heights were wedded to a fire protection zone formed more than a decade previously by the desert communities of Helendale and Silverlakes.
San Antonio Heights is some 47 miles distant as the crow flies or at least 64 miles away in terms of driving distance from Helendale and Silverlakes and separated from those communities lying between Victorville and Barstow by both the San Gabriel Mountain Range and a considerable expanse of desert.
The placement of all of the landowners in San Antonio Heights into that fire protection zone entailed the rerouting of the property tax already being paid by that community’s residents and property owners which covered the cost of the fire protection service they were previously receiving to other governmental uses and imposed on them a $153-per year per parcel assessment by which the county fire department’s operations are now being defrayed.
In Upland, the municipal fire department, which had existed from shortly after the city’s 1906 incorporation, was shuttered and the county’s fire division took possession of the city’s fire equipment and vehicles, as well as its facilities, which included four fire stations within its 15.66 square miles. In San Antonio Heights, an unincorporated county area which had previously received its fire service from the county fire division, little appreciable difference in how the county operated its fire division within its 2.619 square mile confines occurred, although some of the equipment, vehicles and personnel which had been previously staged at the San Antonio Heights Fire Station and devoted for what were more or less exclusive operations in that community are now also used to cover the northeastern quadrant of Upland, where one of the city’s former fire stations has been closed. San Antonio Heights residents contend that change has made their community less safe than it had been before it was forced into the takeover arrangement with the Helendale/Silverlakes fire protection service zone, known by the county’s nomenclature as Fire Protection Zone Five or FP-5, for short.
Neither Upland’s residents nor those living in San Antonio Heights were given the opportunity to approve the arrangement. Rather, at the behest of the Upland City Council and the San Bernardino County Board of Supervisors, which serves as the county’s fire board, that matter was entrusted to the San Bernardino County Local Agency Formation Commission, the department of county government which oversees jurisdictional issues, agency formations, boundary disputes and annexations. The Local Agency Formation Commission, referred to by its acronym LAFCO, conducted a so-called protest procedure to ratify the imposition of the service zone and accompanying assessments.
This protest procedure consisted of the San Bernardino County Local Agency Formation Commission’s inviting property owners and voters within each of the jurisdictions – Upland and San Antonio Heights – 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 presumed to have voted to accept the annexation. Under the protest procedure rules, if 25 to 50 percent of the voters or land owners within the combined jurisdictions protested the annexation, a traditional vote using ballots by which those supporting the annexation would vote yes and those opposing it would vote no would be staged. If more than 50 percent had registered protests, then the annexation would have failed outright. If fewer than 25 percent lodged protests, the annexation was deemed valid. While more than 25 percent of the residents/landowners in San Antonio Heights registered objections to the annexation, no opposition approaching that number manifested in 76,000 population Upland. LAFCO refused to allow the protest tally to be bifurcated between San Antonio Heights and Upland, and with the total protest letters for the combined communities falling below the 25 percent threshold, the annexation was declared to have been ratified, such that the inclusion of the two communities into Zone FP-5 and its accompanying assessment district was allowed to proceed.
A critical mass of San Antonio Heights 3,370 residents, resentful of what was being foisted upon them after they had rallied what they had been led to believe was a sufficient expression of protest among their numbers to force government officials to provide them with the opportunity to have a straightforward up and down vote on whether they were to be annexed into FP-5, under the auspices of the San Antonio Heights Homeowners Association involving over 400 San Antonio Heights residents, retained Upland-based attorney Cory Briggs. Briggs filed suit on the association’s behalf in an effort to prevent the annexation from proceeding.
Purposefully, the lawsuit was filed prior to the completion of the processing of the annexation application and LAFCO’s ratification of it to foreclose any argument that the effort to prevent the service responsibility transition had come about too late and would impose an unacceptable hardship on either or both the city and the county to undo the closure of the Upland Fire Department and the transition of that entity’s fire protection service to the county fire division. The plaintiffs therefore asked that the court enjoin the city and county from actuating the shutdown of the city department and the takeover by the county. In response, the three separate legal teams representing the county, city and the Local Agency Formation Commission asked the judge hearing the case, San Bernardino County Superior Court Judge David Cohn, to allow the annexation to proceed, expressing doubt that the plaintiffs would prevail but offering assurances that if the plaintiffs successfully contested the takeover, that refunds of the collected assessments could be made at that time, the City of Upland could simply resume operation of its fire department and the county would return to its previous arrangement of offering service to the San Antonio Heights community outside of the rubric of the fire service zone associated with Helendale and Silverlakes. Judge Cohn acceded to the position of the county, city and LAFCO, and did not block the closure of the Upland Department or the annexation.
Briggs proceeded with the suit, asserting that the annexation of both the city and San Antonio Heights into FS-5 was an illegal ploy intended to allow the city and county to impose what was tantamount to a new tax on their residents without having to meet the requirement of allowing those upon whom the tax was to be imposed an opportunity approve the assessment, as is normally required under California law and the California Constitution. The “protest vote” is not an actual vote, according to Briggs. “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 Writ of Mandate filed by Briggs on behalf of the homeowners association stated. “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.”
The Local Agency Formation Commission disregarded the legal action and imposed the FP-5 zone on Upland and San Antonio Heights, interpreting the percentage of dissenters in San Antonio Heights and Upland to be insufficient to prevent the annexation from occurring.
In response to the suit, the city, represented by attorneys James Markman and Ginetta L. Giovinco, the county, represented by Laura L. Crane, and the Local Agency Formation Commission, represented by Jeffrey Dunn, 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 the Sunset Beach case, 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, the Orange County Local Agency Formation Commission 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. Briggs sought to make an issue of the consideration that Upland and San Antonio Heights were not immediately adjacent to either Silverlakes and Helendale, a distinguishing characteristic from the Sunset Beach case. Furthermore, Briggs maintains, the FP-5 assessments are not being levied to create improvements but rather to fund the operation of the fire department.
Judge Cohn last year ruled that the proximity of the original district to the area annexed was not a decisive factor in determining the legitimacy of the annexation and Briggs was unable convince the Fourth District Court of Appeal to reverse Cohn with regard to that issue.
There were yet, however, principles in the legal action larger than those pertaining strictly to San Antonio Heights, Upland, the county fire department, LAFCO and the county at play in the suit, in particular, whether the governing body of a separate entity, such as in this case the Upland City Council, could initiate an annexation process that had a direct impact on an entity over which it otherwise had no authority, as in this case San Antonio Heights, and could imposed on that entity an outcome inimical to the wishes of the vast majority of those who make up the second entity, as in this case the residents of San Antonio Heights. Moreover, there were technical issues with regard to the way in which the city, the county and the Local Agency Formation Commission had undertaken the annexation, such as utilizing governmental authority normally reserved for creating or expanding an assessment district to undertake improvements such as the construction of capital projects to instead pay for the provision of services which are normally defrayed through the operating budget of the governmental authority of that particular jurisdiction.
Relatively early on the San Antonio Heights Association suit survived three attempts by the county, the city and LAFCO to have it dismissed. A significant cross section of San Antonio Heights residents along with many Upland residents, many of whom were equally resentful of the manner in which the assessment had been imposed upon each of them without an actual vote, looked forward to the case going to trial. That trial has been delayed by legal sparring with regard to a number of the issues raised by the case, including an appeal to the appellate court.
In the meantime, on another level, the political one, events played out. Three of the four members of the Upland City Council who voted to proceed with the application to close the fire department and initiate the annexation of the city into Fire Protection Zone Five are no longer on the city council, two having been voted out of office by Upland’s voters last month and the third having opted out of running.
This week, on Tuesday morning, a merits hearing was held in which Judge Cohn was essentially being called upon to determine whether the matter will go to trial. Cohn’s courtroom on the eighth floor of the 11-story San Bernardino Justice Center in downtown San Bernardino was filled to capacity, primarily with San Antonio Heights residents and a handful of Uplanders.
Representing the San Antonio Heights Homeowners association at the hearing were Briggs and his law partner, Anthony Kim. Representing the Local Agency Formation Commission were Jeffrey Dunn and Daniel Lee Richards. Representing San Bernardino County and its fire division was Laura Crane. Representing Upland was Ginetta Gionvinco.
Shortly after the hearing began, Judge Cohn gave indication that his tentative decision weighed fully against the homeowners association, such that the annexation of the city and San Antonio Heights into Fire Protection Zone Five will be allowed to stand along with the wholesale dissolution of the Upland Fire Department.
Under the California Government Code, Cohn said, LAFCO has “broad discretion” in determining the validity of assessment zones. “The plaintiff has failed to demonstrate this was an invalid statutory scheme,” Judge Cohn said.
Cohn opined that the levying of a “relatively small” assessment had led to “the rallying cry of ‘No Taxation Without Representation’ by the people of San Antonio Heights, who didn’t get an opportunity to vote on this tax.”
Though Cohn said such a sentiment is a legitimate one with an obvious historical and Constitutional import, those considerations are trumped by the consideration that the county, the city and the Local Agency Formation Commission abode by all of the proper procedural protocols. “The Sunset Beach case is the guiding law here,” said Judge Cohn. “It provides that when this annexation occurred a tax that was already imposed on a geographically larger area [into which the land in question was absorbed] it became valid.”
Briggs, however, asserted that “Under Health and Safety Code Section 13952, LAFCO has no authority to approve a proposal to create a service zone or change boundaries or dissolve a zone.”
In San Antonio Heights, Briggs said, there were a sufficient number of residents protesting the annexation to either prevent the annexation from taking place or to force a vote where the annexation would have been voted down. By combining San Antonio Heights into the FP-5 zone with Upland simultaneously and requiring that the sufficient number of protest votes emanating in San Antonio Heights be tallied into the mix with the insufficient number of protest votes originating out of Upland, Briggs said, the defendants had cheated the residents of San Antonio Heights out of a fair and democratic process. “That is putting your finger on the scale,” he said. “That’s not good government. That’s engaging in a dilution of the vote. That is in a sense gerrymandering.” LAFCO, the county and the City had thus loaded the dice to ensure that the protest effort in San Antonio Heights did not succeed, he said.
Briggs told Judge Cohn that his analysis blurred the distinction between improvement districts and service zones and that assessments of the sort approved by the Local Agency Formation Commission using the procedure last year was intended for paying for tangible items such as capital improvements, structures or infrastructure. The proceeds from such assessments could not be used to pay for services, Briggs said.
“Even if the annexation into the district is proper, LAFCO has no authority to do an annexation into a zone. A zone is excluded from the definition of a district,” Briggs said. He then read the applicable definitions of the terms.
“The court could rule that annexation [of San Antonio Heights] into the district is not illegal but the court cannot on the a plain reading [of the applicable case law] think that LAFCO had the authority to apply a tax that was levied in some other zone,” Briggs said. “LAFCO does not have that authority on the basis of Cortese-Knox.”
The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 is the section of the State Government Code (Government Code §§ 56000 et sequitar) that provides a Local Agency Formation Commission with its authority, procedures and functions.
The county, city and LAFCO had assembled a “Frankenstein” of inconsistent entities and governmental functions – zones, districts and assessments – “to accomplish a zone that does not have taxing authority,” Briggs said.
When Judge Cohn suggested that the residents of San Antonio Heights were merely seeking to get out from underneath the financial burden of having to pay a paltry $150 per year for fire protection, Briggs objected to that characterization. He then endeavored to remind the judge that the residents of San Antonio Heights had already been paying for fire service through property taxes they paid annually. In actuality, Briggs suggested, the county was now charging them double for the fire service they had been receiving, but had not improved it, and in fact lessened it. The substance of this claim consisted of the consideration that the county fire station that had previously been in operation at the top of Euclid Avenue near 25th Street at the southern entrance into San Antonio Heights had operations previously devoted in their entirety to serving San Antonio Heights. Now, that station is used to provide service to the northwest quadrant of Upland, effectively reducing the level of coverage the county was previously providing to San Antonio Heights. This was unfair, Briggs said, in that the residents of San Antonio Heights are not only paying twice for the same thing, they are actually paying more for less service. They weren’t objecting to paying the assessment as much as they were objecting to being fleeced while seeing their service level diminished, he said. “It isn’t fair to say these are a bunch of people too cheap to pay 150 bucks,” Briggs said, adding that they are now going along with paying the assessments on their property tax bills. “But that doesn’t mean you should get dinged twice to get less,” he said.
Cohn asked Briggs what would occur if he granted the San Antonio Heights Association’s request and that night a fire occurred in San Antonio Heights, implying by his question that the community would be left without firefighting protection.
Briggs asserted that a declaration that the assessment district was without validity would not result in the county withdrawing its service but merely direct that an orderly return to the earlier established arrangement take place.
Cohn said the city had moved toward the option of shuttering the fire department and being annexed into the fire service zone because it did not have the financial means to maintain its fire department otherwise.
Dunn, representing the Local Agency Formation Commission, said that Cohn had correctly analyzed the circumstance in his intended statement of decision and that the San Bernardino County Board of Supervisors, in its capacity as the county fire board, had the authority to organize the provision of fire service within the county. “The law gives the board the authority to effectuate services,” Dunn said.
Dunn also asserted that the assessments were being utilized for improvements, and he referenced the San Antonio Heights Fire Station in this context. This brought a sharp retort from Briggs, who noted the fire station has been in existence for 37 years.
Ginetta Gionvinco, representing Upland, said that at this point the city could not reestablish its fire department, as all of its assets and manpower are no longer in the possession of the city.
“The city does not have a way to go back,” she said. “It is not as simple as the city taking over the service. It has previously transferred the land, the vehicles, the equipment and everything else. The city was not able to continue to provide those services. To think the city is in a position to re-up and start anew is not realistic. To unwind this is not realistic. There is no going back on that.”
Taking the statements of all parties under submission, Judge Cohn indicated he would deliver his finalized decision in early January, the totality of his statements leaving the impression that San Antonio Heights will remain in the Fire Service Zone 5.
After the hearing, as the capacity crowd of San Antonio Heights residents filed into the hallway outside of Judge Cohn’s courtroom, several expressed dismay at the tenor of Cohn’s intended ruling. One said he found it particularly galling that the city, LAFCO and the county maintained last year that the annexation should be allowed to proceed at that time because if the court found against them, that fire department takeover could simply be reversed and that the city, using Gionvinco as a mouthpiece, is now maintaining that the difficulty of making that reversal is grounds for not rescinding the annexation.
-Mark Gutglueck