by Joel Ellinwood, AICP

Peter Detwiler, chief consultant for the California State Senate’s Committee on Local Government and long-time legislative staffer on land use planning issues has a new theme. In talks at professional planning seminars around the state, he is warning of a potential new weapon in the litigation arsenal of those opposing development in areas being annexed to cities or special districts. Whether Detwiler is right, or merely singing another version of “the sky is falling,” his pitch is worth paying attention to. He recently presented it at the annual Land Use Conference sponsored by UCLA and at the Sacramento Chapter of the American Planning Association luncheon speaker series. It goes like this.

Local Agency Formation Commissions (LAFCos) must approve annexations or extensions of the service areas of special districts providing public services such as water, sewer, drainage and the like. LAFCos have a legislative mandate to update the “spheres of influence” of cities and special districts by January 1, 2006. A reorganization or boundary decision must include a finding that it is consistent with the approved sphere of influence. If spheres of influence are not updated as required, Detwiler argues, then the legality of any consistency finding made after January 1, 2006, is suspect and an open invitation for growth opponents to sue.

Detwiler makes an analogy. Zoning and permitting decisions made by cities and counties must be consistent with general plans. He says that similarly, LAFCos’ boundary decisions must be consistent with spheres of influence. The statutory basis for the consistency requirement between spheres of influence and reorganization or boundary decisions is Government Code section 56475.5. LAFCos are required to update spheres of influence on or before January 1, 2006, and every five years thereafter by Government Code section 56425 (f). This requirement was adopted with the last major overhaul of the LAFCo statute by AB 2838 (Hertzberg) in 2000.

A couple of 20-year old cases support Detwiler’s theory. Resource Defense Fund v. Local Agency Formation Commission (1983) 138 Cal.App.3d 987 held that a LAFCo can’t approve a boundary change if no sphere of influence has first been approved. Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334 ruled that a subdivision map approval is invalid if the general plan is legally inadequate because no finding of consistency can be made with an invalid document. It’s not much of a leap to argue that if after January 1, 2006, a LAFCo approves a boundary decision for a project without having first having brought the sphere of influence into compliance, that the boundary decision is subject to challenge.

The best defense to the possibility of a LAFCo bomb in the hands of no-growthers is obviously to meet the deadline. LAFCos are generally behind in making the revisions, in part because they were waiting for the Governor’s Office of Planning and Research (OPR) to adopt Guidelines for Municipal Service Reviews, a process that is a prerequisite for sphere of influence revisions. OPR missed its legislative mandated deadline for preparing the MSR Guidelines by 25 months. Detwiler indicated that there is some sympathy in the legislature for the notion of extending the initial deadline for sphere of influence updates to make up for the delay, but no legislation has yet been introduced for this purpose. Meanwhile, heads up if a project you are working on requires annexation to a city or special district for the provision of public services.

Joel Ellinwood is a senior associate with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.