Tracy Rural County Fire etc. v. Local Agency Formation etc. ( 2022 )

Filed 10/13/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
TRACY RURAL COUNTY FIRE PROTECTION C095083
DISTRICT,
(Super. Ct. No. STK-CV-
Plaintiff and Appellant, UWM-2019-0009687)
v.
LOCAL AGENCY FORMATION COMMISSION
OF SAN JOAQUIN COUNTY,
Defendant and Respondent;
CITY OF TRACY,
Real Party in Interest.
APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P.
Holly, Judge. Reversed with directions.
Reed Smith, Raymond A. Cardozo; Bowman & Berreth, Mark Charles Bowman,
and Kevin J. Berreth for Plaintiff and Appellant.
Neumiller & Beardslee, Daniel S. Truax, and Rod A. Attebery for Defendant and
Respondent.
Gregory J. Rubens and Bijal Patel, City Attorneys; Colantuono, Highsmith &
Whatley, Michael G. Colantuono, and Jon R. di Cristina for Real Party in Interest.
1
In this appeal, arising under the Cortese-Knox-Hertzberg Local Government
Reorganization Act of 2000 (Act) (Gov. Code, § 56000 et seq.),1 Tracy Rural County
Fire Protection District (Tracy Rural), joined by the City of Tracy (City), challenges a
decision made by the Local Agency Formation Commission of San Joaquin County (San
Joaquin LAFCO or the Commission). The decision, resolution No. 1402, adopted a
governance model for fire services provided by the City and Tracy Rural “requiring that
future annexations to the City . . . will detach from [Tracy Rural].” Tracy Rural asserts:
(1) San Joaquin LAFCO does not possess the statutory authority to order detachment of
fire protection services from Tracy Rural in future annexations of territory by the City,
but rather must act on specific proposals for annexation or detachment, none of which
was presently pending before the Commission; and (2) even if the Commission possesses
the authority to order detachment sua sponte and in futuro, issuance of resolution
No. 1402 nevertheless amounted to a prejudicial abuse of discretion because it was not
supported by substantial evidence.
We conclude San Joaquin LAFCO did not have the statutory authority to issue
resolution No. 1402. As we shall explain, a local agency formation commission
(LAFCO) does not have the power to order a specific detachment outside of a proposal
for such a change of organization, and may not initiate such a proposal on its own. While
designated a “model,” and referred to by the Commission’s executive officer, James E.
Glaser, as a “plan,” resolution No. 1402 requires the City to include detachment in all
future annexation proposals in order for such a proposal to receive consideration from the
Commission. As Glaser explained, “in order for us to process an annexation,” that
annexation proposal “has to be consistent with this plan.” In other words, if the City
1 Undesignated statutory references are to the Government Code.
2
submits an annexation proposal with detachment, the proposal is considered on its merits.
If not, it is returned as not in compliance with resolution No. 1402. This effectively
decides the detachment issue ab initio regardless of the specific facts of the proposal then
pending before the Commission. A LAFCO “has only those express (or necessarily
implied) powers which are specifically granted to it by statute.” (City of Ceres v. City of
Modesto (1969) 274 Cal.App.2d 545, 550 (City of Ceres).) Contrary to San Joaquin
LAFCO’s position in this appeal, none of the provisions it relies upon authorized
resolution No. 1402. We therefore reverse the judgment entered in favor of San Joaquin
LAFCO and remand the matter to the trial court with directions to issue a peremptory
writ of mandate directing the Commission to vacate resolution No. 1402.
BACKGROUND
Statutory Framework
We begin with an overview of the statutory framework in order to place the
background facts and procedure in their proper context.
The Act “was enacted ‘to encourage “planned, well-ordered, efficient urban
development patterns with appropriate consideration of preserving open-space [and
agricultural] lands within those patterns” [citation], and to discourage urban sprawl and
encourage “the orderly formation and development of local agencies based upon local
conditions and circumstances.” ’ [Citation.] A LAFCO is the administrative body within
each county that oversees urban development.” (Community Water Coalition v. Santa
Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1323-1324.)
In section 56001, the Legislature recognized that, among other things, that “the
logical formation and determination of local agency boundaries is an important factor in
promoting orderly development and in balancing that development with sometimes
competing state interests of discouraging urban sprawl, preserving open-space and prime
agricultural lands, and efficiently extending government services.” (§ 56001.)
Recognizing that “urban population densities and intensive residential, commercial, and
3
industrial development necessitate a broad spectrum and high level of community
services and controls,” and that “priorities . . . regarding the type and levels of services
that the residents of an urban community need and desire” should be based on “weighing
the total community service needs against the total financial resources available for
securing community services,” the Legislature declared “that a single multipurpose
governmental agency [that] is accountable for community service needs and financial
resources . . . may be the best mechanism for establishing community service priorities
especially in urban areas.” (Ibid.) However, also recognizing “the critical role of many
limited purpose agencies, especially in rural communities,” the Legislature further found
“that, whether governmental services are proposed to be provided by a single-purpose
agency, several agencies, or a multipurpose agency, responsibility should be given to the
agency or agencies that can best provide government services.” (Ibid.)
“[B]eing a creature of the Legislature exercising legislative functions [citation], [a
LAFCO] has only such powers as are bestowed upon it by the Act.” (Timberidge
Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 883 (Timberidge
Enterprises).) Section 56375 is the principal statute granting power to LAFCO’s,
including the power “[t]o review and approve with or without amendment, wholly,
partially, or conditionally, or disapprove proposals for changes of organization or
reorganization, consistent with written policies, procedures, and guidelines adopted by
the commission.” (§ 56375, subd. (a)(1).) As relevant here, “ ‘[c]hange of
organization’ ” includes both “annexation [of territory] to a city” and “detachment [of
territory] from a district.” (§ 56021, subds. (c), (f); see also §§ 56017, 56033.) Section
56668 provides a list of factors to be considered in reviewing such a proposal.
“Either a public petition or an affected local agency’s legislative resolution is
required to request a change of organization.” (Board of Supervisors v. Local Agency
Formation Com. (1992) 3 Cal.4th 903, 910; see §§ 56650, 56069.) LAFCO’s may not
initiate a proposal for change of organization except as provided in section 56375,
4
subdivision (a)(2), which does not authorize LAFCO initiation of an annexation or
detachment. Subdivision (g) of that section, however, provides LAFCO’s with the power
to “adopt written procedures for the evaluation of proposals” and “adopt standards for
any of the factors enumerated in Section 56668.” (§ 56375, subd. (g).) Subdivision (h)
also provides LAFCO’s with the power to “adopt standards and procedures for the
evaluation of service plans submitted pursuant to Section 56653” (§ 56375, subd. (h)),
which requires the applicant of a proposal to “submit a plan for providing services within
the affected territory.” (§ 56653, subd. (a).)
These and other powers and duties possessed by LAFCO’s will be further
discussed later in this opinion. For now, we have provided enough statutory context for
San Joaquin LAFCO’s issuance of resolution No. 1402. We now provide the factual
context.
Provision of Fire Protection Services in the Tracy Area
The City’s fire department was established in 1910. In 1945, Tracy Rural was
established to provide fire protection services for, as the name implies, rural areas outside
the city limits. For many years, the City and Tracy Rural discussed consolidating their
fire protection services. As the City constructed new fire stations to meet the needs of a
rapidly growing population, Tracy Rural firefighters often found themselves driving
through parts of the City to reach a rural fire, passing City fire stations along the way.
Both entities recognized that consolidating services would lower response times and
eliminate the duplication of resources. By 1996, the City and Tracy Rural were in final
negotiations to consolidate, with the City relinquishing fire protection responsibilities to
Tracy Rural. This consolidation never occurred.
5
Instead, in 1999, the City and Tracy Rural formed the South County Fire
Authority (SCFA), a joint powers authority (JPA),2 to provide fire protection services
within their respective territories. As we describe in greater detail below, SCFA was
dissolved in 2018 and a new JPA was established, South San Joaquin County Fire
Authority (SSJCFA), to provide these services. Both JPA’s received funding from the
City’s general fund (derived from property taxes, sales tax, & user fees) and Tracy Rural
(derived from property taxes, a special assessment imposed for structures located within
the district, & user fees).
Prior Annexations to the City and the Issue of Detachment
Prior to the dispute in this case, San Joaquin LAFCO approved twelve proposals to
annex territory to the City without detaching that territory from Tracy Rural.3 The
Commission explained in an October 2011 municipal services review: “As annexations
to cities and detachments from the districts occur, the district’s physical boundary and
financial revenue shrink. Unfortunately, the district does not always experience a
corresponding reduction in service costs. The district must still maintain the same
number of stations, employ the same number of firefighters, and maintain the same
amount of equipment and do all of this with less revenue.” The review also noted that the
policy of not detaching newly annexed territory from Tracy Rural “maintains the
2 A “ ‘joint powers authority’ means an agency or entity formed pursuant to the
Joint Exercise of Powers Act (Article 1 (commencing with Section 6500) of Chapter 5 of
Division 7 of Title 1) that is formed for the local performance of governmental functions
that includes the provision of municipal services.” (§ 56047.7.) Section 6502 provides in
relevant part that “two or more public agencies by agreement may jointly exercise any
power common to the contracting parties . . . .”
3 In one case, the annexation of Tracy Hills, the portion of Tracy Hills territory that
was then within Tracy Rural was annexed to the City without detachment from Tracy
Rural, while another portion of the annexed territory, not then within Tracy Rural, was
fully annexed to the City.
6
necessary funding for the JPA to operate efficiently because it allows property tax
revenues as well as the special assessments to continue to fund the level of service that
has been calibrated for single fire protection services throughout the Tracy area and to
those revenues.”
However, in a section titled “Implementation Strategy,” the Commission directed
the City and Tracy Rural to “[c]omplete a plan regarding the governance model for [the
City’s] Fire Department and Tracy Rural . . . within 18 months . . . . All subsequent
annexation requests shall be consistent with the approved plan.” (Underscoring omitted.)
One reason for this directive was a concern that San Joaquin County (County) was losing
revenue due to annexations occurring without detaching from Tracy Rural.
SCFA prepared a governance report, titled “Fire Governance Implementation
Plan,” in August 2013. That report discussed four governance options and recommended
further evaluation of the following two: (1) strengthen the existing JPA; and (2) annex
the City’s territory into Tracy Rural for provision of fire protection services. The City
submitted this report to San Joaquin LAFCO. However, the Commission determined it
did not sufficiently address the fiscal and governance issues and returned the report to the
City for further study, including all four governance options.
In December 2013, the City informed San Joaquin LAFCO that a consultant,
Management Partners, had been hired to analyze these governance issues. At this
meeting, the Commission requested that the new governance report “ ‘include the
feasibility of detachment and no detachment of Tracy Rural . . . and the feasibility of a
full consolidation of Tracy Rural and the City Fire service.’ ”
After various continuances were granted, the requested governance report, titled
“Alternative Fire Governance Structures,” was submitted in September 2014. Three
options were analyzed in the report: (1) maintain the status quo (annexation of territory
to the City without detachment from Tracy Rural); (2) require existing and/or future
annexed territories to detach from Tracy Rural; and (3) annex the City into Tracy Rural.
7
However, because the City did not indicate which of the three options it preferred, the
Commission declined to determine whether future annexations to the City should detach
or not detach from Tracy Rural and returned the report to the City.
Formation of SSJCFA and New Proposed Annexations
In 2017, SCFA staff conducted a study evaluating three potential governance
options. The new study was prompted partly because of the LAFCO concerns noted
above and partly because “[Tracy Rural’s] Board was concerned that they did not have
the desired authority over fire protection policies and did not participate in financial,
administrative and operational policy development, and approval and implementation for
fire protection programs within their District boundaries.”4 The three options considered
were: (1) the City detach from Tracy Rural; (2) the City annex into Tracy Rural; and
(3) reconstitute and strengthen the JPA. SCFA staff concluded the third of these was the
best option.
In February 2018, the City and Tracy Rural dissolved SCFA and formed a new
JPA. The City and Tracy Rural agreed that this would allow them to resolve outstanding
financial and operational issues while also allowing them to continue to combine their
resources and personnel to continue providing fire protection services through a single
entity, the newly formed SSJCFA. For example, SSJCFA eliminated Tracy Rural’s $4.37
million obligation to the City, which was owed in connection with fire station 92, and
transferred ownership of that station to the City.
SSJCFA submitted a governance review in December 2018. This review
described in detail the three options analyzed by SCFA staff in the 2017 study. In
4 Under the SCFA agreements, authority of Tracy Rural’s board “was limited to
budget approval and budget allocations for capital expenditures and maintenance of
facilities within their District. Policy development, collective bargaining, personnel
management, risk management, selection of a Fire Chief, and service level
determinations were the responsibility of the City.”
8
connection with the option that was ultimately chosen, i.e., forming the new JPA, the
review noted: “One of the primary drivers of the creation of the JPA was the strategy for
the City to not detach from the District when annexations occurred. This allowed the
areas that were annexed by the City to maintain the District taxing authorities at their
current levels in perpetuity.” The review also identified two new annexation proposals,
the Avenues with 250 homes and Tracy Village with 575 homes, for which annexation
would be proposed without detachment from Tracy Rural, and stated that detachment
“could delay the opening of future fire stations and impact service levels.” The review
later noted that San Joaquin LAFCO had initiated the governance discussion in 2011,
specifically the detachment issue, in part because of the concern that the County was
losing revenue “ ‘due to a loss of opportunity for the County to redistribute (to itself) ad
valorem property taxes’ ” when an annexation occurs without detachment. The review
concluded that this concern “does not fall within LAFCO’s purview.” The review further
concluded that a second concern of the Commission, that the City was not providing full
municipal services to its residents unless detachment occurred, was also not “within their
purpose, authority, or purview.”
On March 14, 2019, San Joaquin LAFCO held a board meeting during which the
Commission stated it would not hold an April meeting, SSJCFA’s governance review
would be discussed at its May meeting, and the Commission would establish an ad hoc
committee or workshop to address annexations.
Five days later, San Joaquin LAFCO wrote a letter to the City responding to the
City’s annexation proposal for Tracy Village and requiring the City to “complete a plan
regarding the governance for the [City’s] Fire Department and Tracy Rural . . . (‘PLAN’)
subject to the approval of [the Commission]” and further requiring that “all subsequent
annexations requests must be consistent with that PLAN.” The Commission continued:
“This step will determine if future annexations to the City . . . will detach or not detach
from [Tracy Rural]. Although a document entitled Governance Review has been
9
received by this office, this PLAN has not been considered nor adopted by [the
Commission]. As such, [the Commission] cannot make a consistency determination.
The PLAN needs to be completed prior to accepting the annexation application as
complete. This PLAN is anticipated to be considered by the Commission at its May
meeting.”
On April 15, 2019, county administrator, Monica Nino, wrote a letter to San
Joaquin LAFCO’s executive officer, responding to SSJCFA’s governance review.
Administrator Nino explained that annexations of territory to a city require an existing
agreement “between the requesting city and the county to specify how the existing
property tax in the area to be annexed will be redistributed.” The City and County
entered into a master agreement in November 2012 that provided: “[F]or annexations
that involve detachment from a fire district, reallocated property taxes are shared in the
ratio of 80% for the County and 20% for the City. For annexations that do not involve
detachment from a fire district, reallocated property taxes are shared in the ratio of 85%
for the County and 15% for the City for consolidated fire districts established between
June 15, 1996 and June 15, 2003. For consolidated fire districts established subsequent
to June 15, 2003, reallocated property taxes are shared in the ratio of 90% for the County
and 10% for the City.” With respect to the twelve previous annexations to the City
without detachment from Tracy Rural, Nino stated: “The reason provided for not
detaching from the fire district was that the City and Tracy Rural anticipated the
formation of a consolidated district where the fire district would be responsible for fire
protection services in both the City and the District[;] however, to date, this consolidation
has not occurred,” resulting in “a significant loss of revenue for the County . . .
approximately $74.2 million in revenue due to annexation without detachment for the
twelve existing annexations.” Referring to the two proposed annexations mentioned in
the review, Nino urged the Commission to require “annexation with detachment” for all
10
future annexations to the City in order to “ensure the County is provided necessary
funding for increased demand on County services.”
Special Meeting on the Detachment Issue
On April 22, 2019, San Joaquin LAFCO held a special meeting on the detachment
issue. The same day, Executive Officer Glaser submitted a report to the commissioners.
He presented this report at the special meeting. We describe that presentation in some
detail.
Executive Officer Glaser began by explaining that the matter before San Joaquin
LAFCO was “to satisfy a requirement that was imposed by this Commission in October
of 2011,” specifically, to determine whether future annexations to the City should be
detached from Tracy Rural. Glaser then explained that the 2011 municipal services
review not only required completion of a plan for a governance model, but also required
subsequent annexation proposals to be consistent with that plan. Glaser interpreted this
to mean that the Commission had to decide the detachment issue in general before it
could “process” or “consider” any specific annexation proposals.
Before specifically addressing the detachment issue, Glaser provided a brief
summary of the background facts, including a description of the various governance
reviews that were submitted following the 2011 municipal services review. Explaining
the policy of “ ‘no detachment,’ ” Glaser stated that Tracy Rural “continues to receive its
share of property tax, which is about 11.6 percent of the tax increment,” and also
continues to collect its special assessment of “three cents a square-foot.” After describing
Proposition 13 (as approved by voters, Primary Elec. (June 6, 1978)), Glaser
characterized the no detachment policy as “essentially an archaic tax rate system
developed in 1979 that they’re applying today, so there is [sic] large amounts of monies
that are achieved through the fire district when you had this situation without
detachment.” Glaser also stated that the City benefits from the no detachment policy
because it is not obligated to provide fire services in the annexed territory.
11
Turning to detachment as a model, Glaser explained that Tracy Rural’s share of
the property taxes would be divided between the City and the County under a tax sharing
agreement. Glaser argued that the County needed that share of the property taxes: “The
County still has increased service needs as a result of development. The County provides
a lot of services, of health services, social services, all the different services related to --
to enforcement of all the different things, Parks and Recreation and everything else, so
there’s still a need for additional monies to the County as a result of development.” He
further stated that detachment was the model used by Stockton, Lodi, and Manteca.
Glaser then argued that cities, not special districts, are “clearly” the most capable
of providing funding for fire protection services because they “have more financial
resources available” to devote to fire protection. He further argued that there should not
be “overlapping spheres of influence,” but rather the Act “declares that a single
multipurpose agency is accountable for government services in a better manner and
especially for -- for urban areas, again pointing to the fact, cities ought to be doing
this . . . .” Addressing the potential counterargument that a single entity does provide fire
protection services for both the City and Tracy Rural, i.e., SSJCFA, Glaser stated “that’s
the way in which the delivery of services” is provided, but “the responsibility for services
is still two agencies.” Glaser further argued that “Tracy Rural has not been financially
successful” and “we’re supposed to be . . . looking at the financial ability of agencies to
provide the service, it’s been a failure.”
Finally, and importantly, Glaser noted “past annexations wouldn’t be affected”
because the Commission “cannot initiate detachments.” Instead, the Commission would
require future annexation proposals to include detachment in order to be considered by
the Commission.
After Glaser and two County officials took follow-up questions from the
commissioners, the City’s finance director, Karen Schneider, addressed the Commission.
Schneider began by noting that the City had “predicated most of [its] financial analysis
12
based on the non-detachment model.” She noted the detachment policy the Commission
was being asked to approve sought to “take cash, fiscal resources from one agency and
give it to another” and asked the Commission “to not make that decision today,” but
rather allow the City “to continue working in the proper avenue of tax sharing agreements
with the County.” With respect to the no detachment model, Schneider argued the City
and Tracy Rural had “created a financially stable model that will see us into the future,
and . . . we can show that we are providing better fire services year after year . . . .”
Acknowledging “some bad history,” she nevertheless argued the current model provided
“the best fire service in the County” and asked the Commission to move forward on the
two annexation proposals, which she characterized as being held for “ransom” until there
was “some type of agreement with Mr. Glaser” regarding detachment. Schneider urged
the Commission to “continue allowing the annexations to move forward . . . because our
model is fiscally sound and we believe we can work with the County” concerning “the
right tax sharing agreement with the County.” She further pointed out that the
Commission’s primary focus should be on fire service and concluded: “Again postpone
this policy. It has long-term effects that nobody has been able to vet out. . . . Please
don’t do that today. Don’t force us into a model that I can’t say I can now support fire
stations.”
During questioning, one of the commissioners asked Schneider why the City
“thought that it could play by different rules than other cities,” i.e., Lodi, Stockton, and
Manteca, with respect to detachment. Schneider answered that cities are unique and the
City and Tracy Rural “have been able to show that we’ve been able to provide better fire
services as a result of non-detachment, and so we ask that you keep that moving
forward.” The commissioner followed up by suggesting “that would be true with any
agency that had more tax money” because it was “taking more County tax dollars.”
Schneider responded: “[T]here are two revenues at stake here that we forget. It’s not just
the property tax -- tax sharing agreement. . . . But you’re also talking about the additional
13
assessment district that would be lost. So it’s two sources of revenue that has supported
fire services for decades, and it’s those revenues and those losses of revenue that we’re
talking about. [¶] What this model[,] providing . . . excellent fire services to the
residents[,] is the most important. What we’re talking about again on the -- only on the
property tax side is splitting that 11 percent. You’re talking about taking 11 percent from
[Tracy Rural] and splitting it between the [the City and the County], but you’re also
talking about losing that 3 percent assessment district.”
The City’s fire chief, Randall Bradley, also addressed the Commission. He stated:
“This is a very high-performing model. So – so as far as a service delivery perspective,
you’re not going to find a better model than this. We have strategically located fire
stations that are well-staffed and well-equipped. [¶] And when we talk economic
development, the reason we can recruit some of these different entities into our
jurisdiction is because we -- we provide a high level of fire pro[t]ection, and -- and we’re
able to do that because of -- of this model. [¶] So when -- when the Teslas of the world
are looking at us and -- and Amazon puts one of their first fulfillment centers in our
community, we’re able to show that we can put 16 firefighters on-scene within three
minutes . . . in order to stop loss quickly, in order to ensure that we do not interrupt
international commerce. [¶] And so that’s the model that we’ve created where we’re
able to attract businesses, and it’s not only because of fire protection, but it’s partly
because of fire protection, so that’s a piece of it.”
In response, one of the commissioners stated: “I just want to be real clear that I
don’t think anybody here, at least from my perspective, is disputing the quality of fire
protection service that Tracy has.”
After further discussion between the commissioners and County officials about
financial losses to the County because of nondetachment, versus additional money
received by the County when new development occurs, the Commission heard from the
City’s mayor, Robert Rickman, Tracy Rural’s attorney, Mark Bowman, the developer of
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one of the two annexations being proposed by the City, and a representative from the
local firefighters union.
The commissioners then made comments before voting on the matter. One of the
commissioners stated: “[I]n this particular case, we’re being asked to move a project
forward, and to be able to move that project forward, from my perspective, it needs to be
detached.” Another commissioner concluded his comments with: “I support the
detachment.”
Resolution No. 1402 passed by unanimous vote. As previously stated, it provides
in relevant part that San Joaquin LAFCO “[a]dopts the model requiring that future
annexations to the City of Tracy will detach from the Tracy Rural Fire Protection
District.”
Trial Court Proceedings
In July 2019, Tracy Rural filed a petition for writs of ordinary and administrative
mandate, and complaint for declaratory relief. The petition sought, among other things, a
peremptory writ of mandate directing San Joaquin LAFCO to vacate resolution No. 1402.
The trial court considered briefing filed by Tracy Rural and San Joaquin LAFCO, as well
as a joinder in Tracy Rural’s briefing filed by the City, heard oral argument on March 4,
2021, and took the matter under submission. The trial court denied the petition. The trial
court concluded San Joaquin LAFCO “had authority to adopt Resolution [No.] 1402 as
part of its expansive powers to establish and adopt resolutions, written policies,
procedures, standards, guidelines and statements and to exercise its powers consistent
with those resolutions, written policies, procedures, standards, guidelines and statements
in conducting its business in an orderly and efficient manner and encouraging the
efficient provision of government services.” Judgment was entered on June 4, 2021.
This appeal followed.
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DISCUSSION
I
Standard of Review
We begin with the standard of review. As Tracy Rural correctly points out, “a
LAFCO annexation determination is a quasi-legislative act that may be challenged by a
petition for writ of ordinary mandamus,” citing Protect Agricultural Land v. Stanislaus
County Local Agency Formation Com. (2014) 223 Cal.App.4th 550, 558 (Protect
Agricultural Land).) “Ordinary mandate under Code of Civil Procedure section 1085 is
used to review ministerial acts, quasi-legislative acts, and quasi-judicial decisions which
do not meet the requirements for review under Code of Civil Procedure section 1094.5.
[Citations.] In such cases, the appropriate standard is whether the agency’s action was
arbitrary, capricious, entirely lacking in evidentiary support, or failed to follow the
procedure required by law.” (Martis Camp Community Assn. v. County of Placer (2020)
53 Cal.App.5th 569, 593-594, italics added; see also San Miguel Consolidated Fire
Protection Dist. v. Davis (1994) 25 Cal.App.4th 134, 152 [LAFCO “decisions are
reviewed by ordinary mandamus rather than administrative mandamus”]; San Joaquin
County Local Agency Formation Com. v. Superior Court (2008) 162 Cal.App.4th 159,
167 [same].)
Section 56107 also provides in relevant part: “In any action or proceeding to
attack, review, set aside, void, or annul a determination by a commission on grounds of
noncompliance with this division, any inquiry shall extend only to whether there was
fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if
the court finds that the determination or decision is not supported by substantial evidence
in light of the whole record.” (§ 56107, subd. (c).) There is no assertion of fraud, so we
confine our analysis to whether there was a prejudicial abuse of discretion.
The main thrust of Tracy Rural’s challenge to resolution No. 1402 is that San
Joaquin LAFCO did not possess the statutory authority to issue such a resolution. This is
16
a pure question of law, subject to de novo review on appeal.5 (See Lindelli v. Town of
San Anselmo (2003) 111 Cal.App.4th 1099, 1104.)
II
Statutory Authority to Issue Resolution No. 1402
Tracy Rural contends San Joaquin LAFCO does not possess the statutory authority
to order detachment of fire protection services from Tracy Rural in future annexations of
territory by the City, but rather must act on specific proposals for annexation and/or
detachment, none of which was presently pending before the Commission. The City
joins in this contention. We agree.
5 Tracy Rural’s appellate briefing also claims, in the standard of review section, that
it “has standing to challenge the validity of Resolution [No.] 1402 under the validation
statute,” citing section 56103 and Code of Civil Procedure section 860. This assertion is
somewhat strange since the latter section requires a validation action to be brought within
60 days of the action sought to be validated. (Code Civ. Proc., § 860.) Resolution
No. 1402 was adopted on April 22, 2019. Tracy Rural’s writ petition was filed on July
26, 2019, more than 60 days later. Tracy Rural, of course, is not seeking to validate
resolution No. 1402, but rather to invalidate it. Code of Civil Procedure section 863
applies to reverse validation actions and requires such an action be brought “within the
time . . . specified by Section 860.” Other jurisdictional requirements are also set forth in
Code of Civil Procedure sections 861, 861.1, and 862, none of which are claimed to have
been satisfied by Tracy Rural. Thus, this action is neither designated as a reverse
validation action, nor would it have been timely or properly filed as such an action.
However, since Tracy Rural has drawn our attention both to section 56103 and to Protect
Agricultural Land, supra, 223 Cal.App.4th 550, we note that section 56103 requires all
challenges to a LAFCO’s completed annexation determination be made “only [in] an in
rem proceeding under the validating statutes or by a quo warranto proceeding filed by the
Attorney General.” (Protect Agricultural Land, at p. 558; see also Hills for Everyone v.
Local Agency Formation Com. (1980) 105 Cal.App.3d 461, 466.) Accordingly, if
resolution No. 1402 amounts to a completed annexation determination, Tracy Rural
would have been required to challenge the resolution in a reverse validation proceeding;
“a third party cannot sidestep those proceedings by purporting to invoke a different
procedural vehicle, such as a writ of mandate . . . .” (Santa Clarita Organization for
Planning & Environment v. Castaic Lake Water Agency (2016) 1 Cal.App.5th 1084,
1097.) However, as we shall explain, resolution No. 1402 neither initiated nor completed
an annexation. Section 56103 does not apply.
17
San Joaquin LAFCO “has only those express (or necessarily implied) powers
which are specifically granted to it by statute.” (City of Ceres, supra, 274 Cal.App.2d at
p. 550.) In interpreting the Act, we employ the following well-settled rules of statutory
construction: “The primary goal in construing a statute is to ascertain legislative intent so
as to effectuate the purpose of the law. [Citation.] To do so, we first examine the
language of the statute, giving the words their ordinary, commonsense meaning and
according significance to all words used, if possible. [Citations.] ‘The statute’s words
generally provide the most reliable indicator of legislative intent; if they are clear and
unambiguous, “[t]here is no need for judicial construction and a court may not indulge in
it.” [Citation.]’ [Citations.] However, where ‘the statutory language is ambiguous on its
face or is shown to have a latent ambiguity such that it does not provide a definitive
answer, we may resort to extrinsic sources to determine legislative intent. [Citations.]’
[Citation.]” (Guillen v. Schwarzenegger (2007) 147 Cal.App.4th 929, 938-939.)
Section 56375 grants 18 specific powers to LAFCO’s. We need not delineate each
of them as many are obviously inapplicable. The most apposite here is the power “[t]o
review and approve with or without amendment, wholly, partially, or conditionally, or
disapprove proposals for changes of organization or reorganization, consistent with
written policies, procedures, and guidelines adopted by the commission.” (§ 56375,
subd. (a)(1), italics added.) As previously stated, “ ‘[c]hange of organization’ ” includes
both “annexation [of territory] to a city” and “detachment [of territory] from a district.”
(§ 56021, subds. (c), (f); see also §§ 56017, 56033.) “ ‘Proposal’ means a desired change
of organization or reorganization initiated by a petition or by resolution of application of
a legislative body or school district for which a certificate of filing has been issued.”
(§ 56069.) In other words, “[e]ither a public petition or an affected local agency’s
legislative resolution is required to request a change of organization.” (Board of
Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 910.)
18
While resolution No. 1402 was issued against the backdrop of the two annexation
proposals noted in SSJCFA’s 2018 governance review, i.e., annexation of the Avenues
and Tracy Village, San Joaquin LAFCO was not reviewing either of those proposals
when it issued the challenged resolution. Indeed, as Executive Officer Glaser made clear
at the special meeting, those proposals would not be “process[ed]” or “consider[ed]” until
a decision was made with respect to detachment. The proposals would then have to be
consistent with that decision, or they would not be considered at all.
Tracy Rural argues resolution No. 1402 therefore “initiated a change in
organization” by “purporting to declare the outcome on the issue of detachment of fire
protection services of all future annexations to the City.” Relying primarily on Fallbrook
Sanitary Dist. v. San Diego Local Agency Formation Com. (1989) 208 Cal.App.3d 753(Fallbrook Sanitary), Tracy Rural correctly observes that such a change in organization
may not be initiated by the Commission. In Fallbrook Sanitary, the Fallbrook Public
Utilities District (FPUD) proposed LAFCO approval of a plan to incorporate Fallbrook.
The San Diego LAFCO approved the proposal, but added to it a provision reorganizing
both FPUD and the Fallbrook Sanitary District (FSD). (Id. at pp. 755-756.) The Fourth
Appellate District concluded this fell within LAFCO’s power to review and approve a
proposal for a change of organization “ ‘with or without amendment’ . . . so long as the
general nature of the subject matter [of the proposal] is not changed.” (Id. at p. 760.)
Agreeing with FSD’s position that LAFCO’s “have no power to initiate changes in
organization or reorganization,” the court explained that FPUD, “an affected agency,”
proposed the incorporation of Fallbrook, and the amendment to that proposal made by the
LAFCO did “not involve a change in the general nature of [the] proposal” and therefore
did “not represent any initiation of a proposal.” (Id. at p. 764-765, fn. omitted.)
In so concluding, the Fallbrook Sanitary court distinguished City of Ceres, supra,
274 Cal.App.2d 545 and Timberidge Enterprises, supra, 86 Cal.App.3d 873 as involving
situations in which “no proposal had ever been made to either commission” and therefore
19
the LAFCO in each case “lacked any authority to act.” (Fallbrook Sanitary, supra, 208
Cal.App.3d at p. 761.) In City of Ceres, the Stanislaus LAFCO adopted a resolution
purporting to establish tentative future boundaries for two adjacent cities, Ceres and
Modesto. Thereafter, Modesto began preparing plans to install sewer lines in the
unincorporated area within Ceres’s tentative future boundaries. (City of Ceres, supra,
274 Cal.App.2d at pp. 548-549.) Ceres sought injunctive relief from what it considered
to be “a ‘wrongful and unlawful encroachment’ into territory designated by the [LAFCO]
‘to be within the sphere of influence of the City of Ceres.’ ” (Id. at p. 549.) The Fifth
Appellate District held the LAFCO had no power “to establish tentative boundaries for
local agencies in futuro,” explaining “the extent of LAFCO’s power is to approve or
disapprove ‘wholly, partially or conditionally’ actual and precise proposals which are
presented to it from time to time for its consideration.” (Id. at p. 553, italics & fn.
omitted; see also Timberidge Enterprises, supra, 86 Cal.App.3d at p. 885 [holding
LAFCO’s intervention in a lawsuit was “without statutory authorization, and otherwise
beyond its powers”].)
After Fallbrook Sanitary, City of Ceres, and Timberidge Enterprises were
decided, section 56375 was amended to allow a LAFCO to initiate certain changes of
organization. (See Assem. Bill No. 1335 (1993-1994 Reg. Sess.) § 4 [amending section
56375 to give a LAFCO “the authority to initiate a consolidation of districts, dissolution,
merger, establishment of a subsidiary district, or a reorganization that include any of
these changes of organization”].) The current version of the statute provides: “The
commission may initiate proposals by resolution of application for any of the following:
[¶] (A) The consolidation of a district, as defined in Section 56036. [¶] (B) The
dissolution of a district. [¶] (C) A merger. [¶] (D) The establishment of a subsidiary
district. [¶] (E) The formation of a new district or districts. [¶] (F) A reorganization that
includes any of the changes specified in subparagraph (A), (B), (C), (D), or (E). [¶]
(G) The dissolution of an inactive district pursuant to Section 56879.” (§ 56375, subd.
20
(a)(2).) Nothing in this subdivision authorizes LAFCO initiation of an annexation or
detachment.
Accordingly, Fallbrook Sanitary, City of Ceres, and Timberidge Enterprises
remain apt in the circumstances of this case. Viewed together, these cases establish that
San Joaquin LAFCO possesses the statutory authority to amend an annexation or
detachment proposal that is currently pending before it, and then approve the amended
proposal, so long as the amendment does not alter the general nature of the proposal, but
it does not have any authority to initiate and then approve its own proposal for annexation
or detachment.6
Here, the City initially proposed annexation of the Avenues and Tracy Village
without detachment from Tracy Rural. Had San Joaquin LAFCO accepted these
proposals for consideration, amended them to detach Tracy Rural, and approved the
amended proposals, we would have no difficulty affirming that decision, assuming, of
course, that it was supported by substantial evidence.7 But that is not what San Joaquin
LAFCO did. Instead, the Commission refused to consider either annexation proposal
until it decided whether or not all future annexations to the City should detach from
Tracy Rural, an issue it raised on its own in 2011. Resolution No. 1402 resolved this
issue in the affirmative and required the City to include detachment in any future
6 We also note that section 56375 was further amended, effective January 1, 2001,
to add the language relied upon by San Joaquin LAFCO, and our dissenting colleague, in
this case, “consistent with written policies, procedures, and guidelines adopted by the
commission.” (Assem. Bill No. 2838 (1999-2000 Reg. Sess.) § 67.) This addition to the
statute obviously does not authorize a LAFCO to initiate and approve its own proposal
for annexation or detachment and therefore does not cast doubt on the continuing validity
of these decisions. Whether this language nevertheless authorizes what San Joaquin
LAFCO did in this case is another matter, which we address below.
7 Because we conclude San Joaquin LAFCO did not possess the statutory authority
to issue resolution No. 1402, we need not determine whether it was supported by
substantial evidence.
21
annexation proposal in order for such a proposal to be considered by the Commission.
By itself, this resolution does not initiate a proposal for annexation or detachment. What
it does is establish a “policy” requiring the City to include detachment in any and all
future annexation proposals submitted to the Commission; failure to do so means the
proposal is not accepted for consideration. We conclude this is akin to the setting of
future boundaries at issue in City of Ceres because San Joaquin LAFCO did this action
on its own initiative, without any pending proposal before it, and the resolution operates
in futuro. Thus, unless San Joaquin LAFCO can point to specific statutory authority for
such an action, resolution No. 1402 exceeded its authority.
San Joaquin LAFCO argues “numerous other provisions” in the Act, set forth
immediately below, provide LAFCO’s with “expansive powers to adopt resolutions,
standards, procedures and guidelines and to establish written policies and procedures and
exercise its powers consistent with those policies and procedures.” The first indication of
such broad authority, the Commission argues, is in section 56375, subdivision (a), itself.
As already stated, this subdivision provides LAFCO’s with the power “[t]o review and
approve with or without amendment, wholly, partially, or conditionally, or disapprove
proposals for changes of organization or reorganization, consistent with written policies,
procedures, and guidelines adopted by the commission.” (§ 56375, subd. (a)(1), italics
added.) Subdivision (g) of that section also provides LAFCO’s with the power to “adopt
written procedures for the evaluation of proposals” and “adopt standards for any of the
factors enumerated in Section 56668.” (§ 56375, subd. (g), italics added.) As mentioned,
section 56668 provides a list of factors to be considered in reviewing a proposal for
change of organization or reorganization. (§ 56668.) Section 56375, subdivision (h) also
provides LAFCO’s with the power to “adopt standards and procedures for the evaluation
of service plans submitted pursuant to Section 56653” (§ 56375, subd. (h), italics added),
which requires the applicant of a proposal to “submit a plan for providing services within
the affected territory.” (§ 56653, subd. (a).) Section 56375, subdivision (i) grants the
22
authority to “make and enforce regulations for the orderly and fair conduct of hearings by
the commission.” (§ 56375, subd. (i), italics added.)
We conclude none of these provisions, either alone or in conjunction, authorized
the challenged resolution. Reliance on section 56375, subdivision (i) is obviously
misplaced. Resolution No. 1402 has nothing to do with the orderly and fair conduct of
hearings by the Commission. Nor can it be fairly characterized as a “procedure” within
the meaning of section 56375, subdivisions (a) and (g). Black’s Law Dictionary defines
“procedure” to mean “1. A specific method or course of action. 2. The judicial rule or
manner for carrying on a civil lawsuit or criminal prosecution.” (Black’s Law Dict. (8th
ed. 2004) p. 1241, col. 1; see also Merriam-Webster’s Collegiate Dict. (10th ed. 2000)
p. 926, col. 2 [“a particular way of accomplishing something”].) Resolution No. 1402
does not set forth any rules of procedure for bringing or presenting an annexation
proposal to the Commission; it dictates the substance of that proposal.
The best argument for the existence of authority to adopt resolution No. 1402 is
that it amounts to a written policy or guideline with which any annexation approval must
be consistent. (See § 56375, subd. (a).) Returning to Black’s Law Dictionary, as relevant
here, “policy” means “[t]he general principles by which a government is guided in its
management of public affairs.” (Black’s Law Dict., supra, at p. 1196, col. 1; see also
Merriam-Webster’s Collegiate Dict., supra, at p. 898, col. 2 [“a high-level overall plan
embracing the general goals and acceptable procedures esp. of a governmental body”].)
Merriam-Webster defines “guideline” to mean “an indication or outline of policy or
conduct.” (Merriam-Webster’s Collegiate Dict., supra, at p. 516, col. 2.)
Resolution No. 1402 is not a statement of general principles, e.g., “San Joaquin
LAFCO views detachment as the best model for providing fire protection services where
new territory is annexed to a city because cities are generally more capable of providing
funding for fire protection services than fire protection districts and overlapping spheres
of influence are to be discouraged.” Such a policy statement is consistent with Executive
23
Officer Glaser’s presentation at the special meeting. Resolution No. 1402 also goes
beyond a statement of general goals or outline of policy or conduct. It specifically
precludes consideration of annexation proposals that do not include detachment.
Nevertheless, we acknowledge that more specific and directive “policies” appear
to have been contemplated by the Legislature when it amended section 56375 to require
approval, amendment, or disapproval of proposals for changes of organization or
reorganization to be consistent with such policies or guidelines. For example, as the
Legislative Counsel’s Digest to Assembly Bill No. 2838 notes, apparently referring to
section 56100.1, the amendment “require[s] the policies and procedures [established by
each LAFCO] to include lobbying disclosure and reporting requirements . . . .” (Legis.
Counsel’s Dig., Assem. Bill No. 2838 (1999-2000 Reg. Sess.) 6 Stats. 2000, Summary
Dig., p. 337, par. (7); see Assem. Bill No. 2838, § 21.5 [adding § 56100.1].) The
Legislative Counsel’s Digest also notes, referring to section 56375, that existing law
allowed a LAFCO to “require as a condition to annexation that a city prezone the
territory to be annexed,” and the amendments to the section would “require that
prezoning, and would require that approval of the annexation be consistent with the
planned and probable use of the property based upon the review of the general plan and
prezoning designations.” (Legis. Counsel’s Dig., supra, at p. 337, par. (10); see Assem.
Bill No. 2838, § 67 [amending § 56375, former subd. (a), now subd. (a)(7)].) Thus, it
appears that specific requirements can be included as a LAFCO “policy,” and specific
conditions may be placed on annexation approvals.
But can a LAFCO institute a “policy” refusing to consider annexation proposals
that do not include detachment? We conclude the answer is no. The problem is not that
a specific condition is placed on approval of an annexation proposal, but rather that
resolution No. 1402 places a condition on the City’s submission of all such proposals in
the future, and that condition is itself a change of organization. In other words,
resolution No. 1402 cannot require all future proposals for annexation to include
24
detachment because detachment is defined as a change in organization that cannot be
initiated by a LAFCO. Here, when the City proposes annexation with detachment for any
proposals submitted after resolution No. 1402, the detachment component of those
proposals is required by San Joaquin LAFCO. It would be pure sophistry to say the
LAFCO did not initiate that particular change of organization by requiring it as a
condition, not only of approval of the proposed annexations, but of accepting and
reviewing those annexation proposals at all.
We further conclude resolution No. 1402 runs contrary to section 56001. As
stated previously, in section 56001, the Legislature declared not only “that a single
multipurpose governmental agency,” such as a city, “may be the best mechanism for
establishing community service priorities especially in urban areas,” but also that many
limited purpose agencies, such as fire protection districts, play a “critical role . . .
especially in rural communities,” and therefore, “whether governmental services are
proposed to be provided by a single-purpose agency, several agencies, or a multipurpose
agency, responsibility should be given to the agency or agencies that can best provide
government services.” (§ 56001, italics added.) This section makes clear that the
dispositive issue to be decided is what agency or agencies can best provide the services.
Preventing, from the outset, the City from proposing what it considers to be the best
model for fire protection services, i.e., nondetachment from Tracy Rural, improperly
limits San Joaquin LAFCO’s consideration of that dispositive issue in the context of the
specific annexation being proposed.
Nor is resolution No. 1402 a “standard,” either for assessing “the factors
enumerated in Section 56668,” or “for the evaluation of service plans submitted pursuant
to Section 56653.” (§ 56375, subds. (g), (h).) As relevant here, a “standard” is
“something established by authority, custom, or general consent as a model or example.”
(Merriam-Webster’s Collegiate Dict., supra, at p. 1142, col. 1.) Resolution No. 1402
does not purport to operate as a model or example against which aspects of a proposal or
25
service plan may be judged. For example, one of the factors to be considered in
reviewing a proposal is “[t]he need for organized community services; the present cost
and adequacy of governmental services and controls in the area; probable future needs for
those services and controls; and probable effect of the proposed incorporation, formation,
annexation, or exclusion and of alternative courses of action on the cost and adequacy of
services and controls in the area and adjacent areas.” (§ 56668, subd. (b)(1).) Resolution
No. 1402 does not set up the detachment model as the standard against which an
annexation proposal shall be compared in assessing the foregoing factors. It instead
requires detachment in the proposal itself.
Finally, the remaining provisions cited by San Joaquin LAFCO are even less
convincing with respect to providing it with the authority it claims in this appeal.
LAFCO’s have the power to “initiate and make studies of existing governmental
agencies,” which “shall include . . . inventorying those agencies and determining their
maximum service area and service capacities.” (§ 56378, subd. (a).) Section 56425
requires LAFCO’s to “develop and determine the sphere of influence of each city and
each special district . . . and enact policies designed to promote the logical and orderly
development of areas within the sphere.” (§ 56425, subd. (a).) In order to do so,
LAFCO’s are required to conduct service reviews of municipal services provided in the
county. (§ 56430, subd. (a).) San Joaquin LAFCO does not argue that resolution
No. 1402 is a study of an existing governmental agency, i.e., Tracy Rural, or a
determination as to Tracy Rural’s sphere of influence. Instead, the Commission argues
“many of the factors considered when adopting Resolution [No.] 1402” are also
considered when making such a determination. We assume, without deciding, that this is
true. However, the fact that San Joaquin LAFCO based resolution No. 1402 on
considerations that would have allowed it to make a sphere of influence determination
does not mean it could therefore do something entirely different, i.e., order detachment
for all future annexation proposals. And while section 56425, subdivision (a), authorizes
26
“policies designed to promote the logical and orderly development of areas within the
sphere” (§ 56425, subd. (a)), resolution No. 1402 does more than that. It effectively
initiates future changes of organization by requiring detachment as a condition of
submitting any future annexation proposal. For reasons already expressed, we conclude
San Joaquin LAFCO had no authority to adopt such a requirement.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with
directions to (1) enter a judgment granting Tracy Rural’s petition for writ of mandate, and
(2) issue a peremptory writ of mandate directing San Joaquin LAFCO to vacate
resolution No. 1402. Tracy Rural is entitled to costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1), (2).)
/s/
HOCH, Acting P. J.
I concur:
/s/
EARL, J.
27
Renner, J., Dissenting.
I dissent from the majority’s conclusion that the Local Agency Formation
Commission of San Joaquin County (San Joaquin LAFCO) did not have the statutory
authority to issue resolution No. 1402.
Government Code section 56375 authorizes a local agency formation commission
(LAFCO) to review and approve “proposals for changes of organization or
reorganization, consistent with written policies, procedures, and guidelines adopted by
the commission.”1 (§ 56375, subd. (a)(1).) The italicized language was added to the
statute in 2001 and not discussed in any of the authorities relied upon by the majority.
(Stats. 2000, ch. 761, § 67.) The majority acknowledges the plain meaning of
“guideline” is “an indication or outline of policy or conduct.” (Merriam-Webster’s
Collegiate Dict. (10th ed. 2000) p. 516, col. 2.; see Maj. opn. ante, at p. 23.) A “policy”
is “a high-level overall plan embracing the general goals and acceptable procedures esp.
of a governmental body.” (Merriam-Webster’s Collegiate Dict., supra, at p. 898, col. 2.)
Resolution No. 1402 provides, in relevant part, that San Joaquin LAFCO “[a]dopts the
model requiring that future annexations to the City of Tracy will detach from the Tracy
Rural Fire Protection District.” The majority’s assertion that the resolution “goes beyond
a statement of general goals or outline of policy or conduct” is unpersuasive. (Maj. opn.
ante, at p. 24.) Section 56375, subdivision (a)(1) does not limit the subject matter that
can be covered by policies or guidelines. Further, the statutory framework does not
suggest a limit on this authority that would apply to resolution No. 1402. Section 56375,
subdivision (a)(2) lists the proposals a commission may initiate—none of which is a
proposal for annexation or attachment. I agree with the majority’s implicit conclusion
1 Further undesignated statutory references are to the Government code.
1
that a LAFCO’s power to issue guidelines and policies cannot include the power to
initiate proposals it otherwise lacks the authority to initiate. (Maj. opn. ante, at p. 25.)
But I disagree with the majority’s conclusion that resolution No. 1402 is itself a change
of organization. (Maj. opn. ante, at pp. 24-25.) This conclusion ignores the fact that the
resolution does not initiate any changes in organization. Rather, the resolution requires
that if an annexation to the City of Tracy is proposed, that future proposal must include
detachment from the county fire protection district. For this reason, this case is
distinguishable from City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545, in
which a LAFCO adopted a resolution establishing tentative future boundaries. (Id. at p.
549.) Here, no tentative boundaries have been set. The requirement to detach will not be
triggered unless and until a proposal for attachment to the City of Tracy is considered and
accepted. I am not persuaded that the relevant case law or the plain language of section
56375 render resolution No. 1402 unauthorized.
Accordingly, I would address the issue of whether resolution No. 1402 was
supported by substantial evidence.
/s/
RENNER, J.
2