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Home My WebLink About26-City Administrator C I T Y 0 F SAN B ERN A R DIN 0 INTEROFFICE MEMORANDUM 8601-607 TO: John Matzer, Jr., City Administrator FRml: Raymond D. Schweitzer, Deputy City Administrator SUBJECT: Annexation Notification DATE: January 14, 1986 (6589) COPIES: - - - - - _. _.. - ~. . ~ ~ . . . . . . . . . . . . - . . . . , ' At the last regularly scheduled meeting, the Mayor and Common Council referred the matter of notification of affected parties and surrounding communities of the proposed annexa- tion into the City to ....staff and the City Administrator's Office for a report back to Council on January 21, 1986." I have taken the lead in your absence to meet with representa- tives of the Public Works Department, City Attorney's Office, the Mayor's staff and the City Clerk. The following report is written after a very thorough, comprehensive study and discussion by those representatives mentioned in the previous paragraph. In view of the fact that the CQ~t~~~~EnQz_F~9J9~njzation Act has set forth a very specific process of notification for cities to follow; and, as you are aware, the law just became effective January 1, 1986, in all probability, the City of San Bernardino will be the first Charter City to use this law and, perhaps, the very first City to annex under it. In 1984, during the Highlant annexation, the City of San Bernardino was accused of using public funds to disseminate information in favor of anne~ation. The issue on which a legal opinion was requested was whether or not the City is capable of providing 'fair anc unbiased information.' There are many methods of ad.ertising including newspaper, mail, radio, CATV (community access channel), brochures, sound trucks and other media. None of the above methods used singularly are cost prohibitive with the highest single item being the direct mail brochur~ at approximately $4,000. The consensus of tb~ staff and my recommendation is that having been accused of not being capable of disseminating "fair and unbiased information", that it is not advisable for the City to deviate from the process set out in the newly enacted State law. Further, because there are no precedents nor cases pending concerning the issues of notification, it -~ /; I ", / / , ";/--- ''-- '- INTEROFFICE MEMORANDml: 8601-607 Annexation Notification January 14, 1986 Page 2 j.s, .I~~.QI!)Jll.eI1.9.e.!'t _ j;j!Sl.Lj;~L_ 9.Y.Q.i.I'L_~1.L~ball enge.s_Q.L lInI'.IQI'r i ety . tl1.e, , S::.i.ty, _ JlJ1.O.u.ld "strictJy ,adhere _ tp, , .tl1.e___~.iaL... Other municipalities could be watching the San Bernardino experience and there [,},ouJ 0 not be Cl.ny dangerous precedents set in the first time use of the ~.e~~Ql'_Re.9J':.99.D.ization AQL. The above recommendation certainly does not preclude private parties nor organizations from disseminating inforn~tion nor the City staff fro~ responding to inquiries. If the proper number of protests are received placing the matter on the ballot, ample opportunity ~ill be given to both the pros and cons to respond on the sample ballot that is mailed to each registered voter. RDS/~d - ':ITY OF SAN JEJ.. ~ARDINO - .JlEMORANDU._~ To JOHN MATZER, JR. City Administrator Subject Proposed Annexation of Nine Separate Areas Between Waterman Avenue and Boulder Avenue From WILLIAM SABOURIN Assistant City Attorney Date January 15, 1986 Approved OQ.n. No. 86-3 Date 1U.47, 14.994 In connection with the subject annexation, the following questions have been raised. 1. When must the protest be signed to be effective? 2. Are each of the separate areas severable in the annexation process? :~.-) ~-:--. '.~-,' n " 3. What constitutes a protest and what matters must be contained in a protest? 4. Are there any limitations on funds when the proposed annexation is at the protest stage? ,~ --.! "'J DISCUSSION. ~ --'" 1. Government Code Section 57051 provides in pertinent part: "At any time prior to the time specified for commencement of the hearing in the notice given by the clerk but not thereafter, any owner of land or any registered voter within inhabited territory proposed to be annexed . . . may file a written protest against the annexation . . . . Each written protest shall show the date that each signature was affixed to the protest; all signatures without a date or bearing a date prior to the date of publication of the notice shall be disregarded for purposes of ascertaining the value of any written protests." Pursuant to the provisions of said Section 57051, it is concluded that written protests may only be filed with the Clerk between the date of publication of the notice and the time specified for commencement of the hearing. In the subject proposed annexation process, the protest period is scheduled from the date of publication, February 20, 1986, to March 7, 1986, the time set for commencement of the hearing. t ," ~ '" II 2., :)c'overnment Code Section 56046 provides in pertinent part U 'tllat":J; , "_' _",ijtJ 'Inhabited territory' means territory within which ClrF Oil I'H.~l)V" -- January 15, 1986 John Matzer, Jr. Page Two there reside 12 or more registered voters. All other territories shall be deemed uninhabited. The proposed annexation includes areas which are inhabited and an area, the cemetery, which is deemed uninhabited. The nine separate areas are the subject of one proposed annexation. In accordance with interpretation of LAFCO staff, the annexation is being treated as if it were all inhabited territory because under the definition of "inhabited territory" there are more than 12 registered voters in the territory in one annexation. The LAFCO staff office indicated that, all such annexations are processed in this manner, and that this method is consistent throughout LAFCO agencies in California. It is our opinion that each of the separate areas is not severable from the other areas in the annexation process. 3. Government Code Section 57051 provides in pertinent part: "Each written protest shall state whether it is made by a landowner or registered voter and the name and address of the owner affected and the street address or other description sufficient to identify the location of the land or the name and address of the registered voter as it appears on the affidavit of registration. Protests may be made on behalf of an owner of land by an agent authorized in writing by the owner to act as agent with respect to that land. Protests may be made on behalf of a private corporation which is an owner of land by any officer or employee of the corporation without written authorization by the corporation to act as agent in making that protest. Each written protest shall show the date that each signature was affixed to the protest " In accordance with said Section 57051, the following must be stated in a protest: A. Whether the protest is made by a landowner or registered voter; B. The name and address of the owner of land affected, and the street address or other description sufficient to identify the location; or the name and address of the registered voter as it appears on the affidavit of registration; C. The date that each signature was affixed to the protest. January 15, 1986 John Matzer, Jr. Page Three In addition to Items 1-3, a protest must be in writing and ccntain a clear statement indicating an objection to the proposed annexation. 4. This office has issued an opinion with regard to the City's participation in annexation efforts. This opinion was prepared by Allen Briggs on May 4, 1984. A copy of the opinion has been given to the City Clerk and City Administrator. The information provided therein is still current. In the case of Stanton v. Mott (1976), 17 Cal.3d 206, 130 Cal.Rptr. 697, the California Supreme Court stated that in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign. With regard to the subject annexation and the protest by qualified voters and land owners there is no legislative provision accorded the City to promote a partisan position with regard to any such protests. As pointed out in our July 31, 1981 opinion, regarding the use of City personnel in elections, the California Supreme Court, in the Stanson v. Mott case, accepted as the ruling law the principles enunciated in the case of Citizens to Protect Public Funds v. The Board of Education. The California Supreme Court noted from ttat case that: " . . . while condemning the school board's use of public funds to advocate only one side of an election issue, at the same time emphatically affirmed the school board's implicit power to make 'reasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal.'" Based on the foregoing it is our op~n~on that the Mayor and Common Council may properly expend public funds for informational purposes in the protest stage of the proposed annexation so long as the information is presented in a fair and reasonable manner, and will be authorized so long as it constitutes a "fair presentation of the facts" including "all consequences, good 2nd bad, of the proposal." CONCLUSIONS 1. Written protests objecting to a proposed annexation, may only be filed with the Clerk between the date of publication of the notice and the time specified for commercement of the hearing. 2. Where the proposed annexation includes both separate January 15, 1986 John Matzer, Jr. Page Four areas of inhabited and uninhabited territory, the annexation is treated as an annexation of inhabited territory and such areas are not severable in the annexation process. 3. Each protest must be written and contain the following information: (a) The identification of the protestor as either a land owner or a registered voter; (b) the name and address of the owner of land affected, or the name and address of the registered voter as it appears on the affidavit of registration; and (c) the date that each signature was affixed to the protest. 4. The Mayor and Common Council may properly expend public funds for informational purposes in the protest stage of the proposed annexation so long as the information is presented in a fair and reasonable manner, and will be authorized so long as it constitutes a "fair presentation of the facts including all consequences, good and bad, of the proposed annexation. /;J~~ WILLIAM SABOURIN Assistant City Attorney WS:ca Concur: ~~~ Ci ty torney cc: Mayor City Clerk