By William W. Abbott
In order to promote more logical urban development pattern, the extension of city services and to avoid underserved populations surrounded by more intense development typically with higher level of services, the legislature has periodically tinkered with the island annexation provisions. In 2000, the legislature created a streamlining provision for unincorporated islands of 75 acres or less, subsequently increased to 150 acres. Pursuant to Government Code section 56375.3, local agency formation commissions (LAFCos) may exercise a more streamlined annexation approval process and can waive the protest proceeding if an annexation is initiated by a city, and the property consists of an island of less than 150 areas. In 2010, Senator Gloria McLeod requested an opinion from the California Attorney General regarding administration of this code section. In July of 2012, the Attorney General weighed in with a formal opinion. While these opinions are not binding on courts or agencies, they are normally afforded great weight in terms of statutory interpretation. In other words, best to pay attention.
The Attorney General considered three issues. The first is, what is an island? Curiously, the term is not defined by statute. Recognizing that an island can be created when it is substantially surrounded by a city, the AG declined to suggest a precise mathematical formula as satisfying the "substantially surrounded’ requirement, recognizing that the determination of a LAFCo as to this question would be based upon substantial evidence. The AG then turned to LAFCo’s authority once it has determined that it was processing a request to annex an island of less than 150 areas. As to this issue, the AG concluded that the entire area is subject to annexation as a unit, precluding approval of annexation of only a portion of an annexation area. The final issue addressed by the AG was whether or not an area in excess of 150 acres could be broken apart and processed as multiple sequential annexations, each less than 150 acre units. The AG rejected that strategy, saying that a LAFCo could not divide up a large island into several 150 acre or less annexations for purpose of utilizing the expedited “no protest” provisions of section 56375.3.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.