MROSD opponents explain their appeal, list their accomplishments

In a letter to friends and supporters, the two property rights organizations fighting the expansion of the the expansion of the Midpeninsula Regional Open Space District have summarize their case, listed their accomplishments in the last two years, and announced some new directors. You can see the original documents by clicking on the link below.

Citizens for Responsible Open Space and Californians for Property Rights have announced there are four elements to their appeal.

• The trial court standard of review was too deferential to the Local Agency Formation Commission (LAFCO)
• LAFCO’s notice of public hearing was insufficient
• LAFCO didn’t properly respond challenges to maps and boundaries
• LAFCO used the wrong total for registered voters and was too strict in disqualifying petition signatures.

 

Californians for Property Rights, (CPR) an educational, tax exempt corporation and Citizens for a Responsible Open Space, (CROS), a Political Action Committee
 

CROS/CPR are seeking to protect the right to vote for over 16,000 registered voters who live on the San Mateo County Coast west of Skyline (as well as for representation for additional property owners that do not reside here), an area Midpeninsula Regional Open Space District, MROSD, seeks to annex through the Coastside Annexation Program.   

In addition, CROS/CPR is seeking to protect both private and public property rights (the annexation area has 38 public service agencies with public property rights).  To that end, CPR worked with La Honda Pescadero Unified School District, LHPUSD, to secure an agreement from MROSD to reimburse LHPUSD for lost property taxes when MROSD bought within the LHPUSD.  Unfortunately, other service districts for fire, water, schools, lighting, and health will also suffer diminished revenues when properties in their districts are taken off their tax rolls by acquisitions by MROSD, a state agency.

CROS/CPR Lawsuit and Appeal Status

Background—In June 2004 CROS/CPR submitted 5507 protests to the annexation of the San Mateo coast by MROSD, requesting a right to vote by registered voters within the annexation area before MROSD proceeds with acquiring nearly $100M of properties along the San Mateo Coast. Note: MROSD followed these voting procedures in 1972 and 1976, while providing details to those citizens, so why not for the San Mateo coast? On 8 July 2004, Warren Slocum certified 3443 net valid protests, but SMC Superior Court Judge Carl Holm found 64 more sufficient protests after a subsequent review from a lawsuit by the HMB Foundation. SMC LAFCO, in September 2004, issued Resolution 964 with 3507 net valid protests. 

Status—Judge Holm indicated that a validation lawsuit was the proper forum for this issue. Hence CROS/CPR filed a validation lawsuit in November 2004.  Judge Freeman presided over that lawsuit and in her findings on 30 Oct 2006 identified 288 additional valid protests, for a net total of 3795.  In the appeal filed in January 2007, CROS/CPR identified key issues on appeal: Standard of Review exercised by the trial court, Defects in the Public Notice in April 2004, ALL administrative remedies had been exhausted, and noted several protest counting issues with number of registered voters and with standards for determining valid protests.  

CROS/CPR Desired Outcome—CROS/CPR are seeking local control and a right to vote for the citizens of coastal San Mateo county, rights afforded citizens of Santa Clara county and Santa Cruz county during annexations by MROSD.  The outcome we seek is that EITHER we are afforded the right to vote on annexation in our local area OR MROSD must re-apply for the Coastal annexation and follow all appropriate government codes and processes.  
 
CPR Directors—Don Bacon, Mary Bordi, John Donovan, Dale Dunham, Terry Gossett, Judy Grote, George Muteff, Nina Pellegrini, Marta Sehnal, Ron Sturgeon, Veronica True

CITIZENS FOR RESPONSIBLE OPEN SPACE; CALIFORNIANS FOR PROPERTY RIGHTS

v.

SAN MATEO COUNTY LOCAL AGENCY FORMATION COMMISSION; SAN MATEO COUNTY;  and ALL PEOPLE INTERESTED IN THE ANNEXATION OF COASTAL SAN MATEO TO THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT

SUMMARY OF ISSUES ON APPEAL

1. Standard of Review Exercised by the Trial Court

The trial court adopted a very deferential standard of review for evaluating the Local Agency Formation Commission’s (LAFCO) determinations.  This played a significant role in the result reached by the trial court regarding LAFCO’s defective notice and its determination of the total amount of registered voters in the affected area.

Government Code section 56107 prescribes the standard of review to be applied by a trial court reviewing a LAFCO decision.  That section prescribes an "abuse of discretion" standard of review, a standard which affords much deference to the administrative agency. 

However, the trial court ignored the pertinent language in section 56107 that allows for invalidation of a LAFCO determination based upon a procedural defect adversely and substantially affecting the rights of affected persons.  That language is consistent with the remaining language of section 56107 prescribing a deferential standard of review, while not affording too much deference to LAFCO’s own defective processes substantially affecting individual rights.

Because the standard of review determines exactly how much deference the trial court will give to the agency, applying the correct standard will have significant impacts on the substantive challenges asserted in the appeal.

2. Notice Defects

The trial court concluded that LAFCO’s Notice of Public Hearing, although defective, substantially complied with the Cortese-Knox-Hertzberg Act (CKH Act). 

Government Code section 57026 clearly identifies the contents required in a notice of public hearing.  LAFCO’s notice included a vague and incomplete map of the affected area.  Because significant confusion existed throughout the protest proceedings as to exactly what territories were being annexed, the map provided by LAFCO failed to impart proper notice to those affected. 

Furthermore, LAFCO’s notice failed to provide a statement of the reasons for the proposed annexation.  Such a statement of reasons is plainly required by Government Code section 57026, subdivision (e).

The trial court, however, found that the defective notice provided by LAFCO was in "substantial compliance" with the specific legal requirements.  That determination completely disregards detrimental effect such defects had in failing to properly inform the public and hindering the ability of annexation opponents to gather sufficient protests.  But even more significantly, the trial court’s determination totally ignores the plain and unmistakable notice requirements set out by the relevant statutes. 

3. Exhaustion of Administrative Remedies

The trial found that challenges to various map and boundary issues were barred from litigation by the doctrine of exhaustion of administrative remedies.  That doctrine is rooted in the principle that an administrative agency should have the first opportunity to hear and respond to certain objections, and that where no such objections have been made, a court will not then entertain them.

The record evidences the various questions, concerns and objections to the map and boundary issues raised throughout the process.  Such questions, concerns and objections were sufficient enough to permit LAFCO an opportunity to respond to them.  However, LAFCO did not.

By finding that administrative remedies were not exhausted before LAFCO, the trial court was able to avoid addressing and resolving the many problems and inconsistencies with the various maps relied on throughout the administrative process.

4. Protest Counting Issues

    (a) Total Number of Registered Voters

The trial court, showing much deference, found no abuse of discretion in LAFCO’s determination that the total number of registered voters in the affected territory came to 16,284.  This number corresponds, according to LAFCO, to the number of registered voters residing in the affected territory at the close of the protest proceedings.  Finding no provision in the CKH Act regarding when the total number of registered voters must be determined, the trial court deferred to LAFCO’s determination.

Government Code section 56046 defines the term "inhabited territory" for purposes of the CKH Act.  Section 56046 also provides that "[t]he date on which the number of registered voters is determined is the date of the adoption of a resolution of application by the legislative body pursuant to Section 56654, if the legislative body has complied with subdivision (b) of that section, or the date a petition or other resolution of application is accepted for filing and a certificate of filing is issued by the executive officer."

A certificate of filing was issued by the Executive Director for LAFCO on January 9, 2004.  As of that date, the registered voter count totaled 16,077.  This number is also found in the Executive Director’s reports dated March 2 and April 2, 2004, both of which recommend adoption of the annexation application.

However, LAFCO and San Mateo Elections determined, after the close of the protest period, that the total number of registered voters in the affected area jumped to 16,284.  Neither LAFCO nor Elections has ever been able to substantiate this calculation.

    (b) Standards for Determining Value of Written Protests

The trial court explicitly found that both LAFCO and Elections applied erroneous legal standards when determining the value of written protests submitted.  The court then conducted its own review of the disputed protests.  This review turned up almost 300 additional protests as valid.

However, the trial court’s count failed in many respects for the same reasons as the original counts by Elections.  The trial court, like Elections, scrutinized the protests in such a manner that demanded perfection in every respect from dotting the "i’s" to crossing the "t’s," with the slightest imperfection rendering the protest invalid.  Such a scrutinizing review is without precedent, and effectively disenfranchised hundreds of voters and silenced the voices of

 

Californians for Property Rights, Box 282, Moss Beach, CA, 94038
Phone 650-563-9508         Email  [email protected], [email protected]
Website:   www.californiansforpropertyrights.org  or www.c4pr.org 

Dear Friend and Ally,

Your generous support to CPR has allowed us to continue our common fight FOR your right to vote on coastal annexation and for local representation, FOR your property rights with local, county and state agencies, FOR monitoring of public agencies for compliance with law as do we citizens, and FOR public notices and responses from public agencies.
 
This past year, with your help, we achieved:
 

• Final Judgment from Judge Freeman on our validation lawsuit
• Retained the Ron Zumbrun Law firm for our appeal of our validation lawsuit
• Hosted a Rock the Coast educational fundraising event at Cameron’s,
• Observed the recount of HMB CouncilMember McClung at SMC Elections
• Clarified growth rate proposals for HMB and Midcoast to refute false assertions
• Added Directors – Bacon, Sturgeon, Dunham, Donovan, and Muteff 

In 2004 and 2005 CPR attended scores of meetings to: 

• Assist SMC Board of Supervisors regarding vision for San Mateo County
• Participate in over 80 Meetings on HMB and Midcoast Local Coastal Programs
• Seek and receive public records on substandard lots in Midcoast and HMB
•   Request HMB Council to identify and maintain all stormdrains, rather than allowing city constructed drains to lapse into "habitats" with a 100’ buffer zone
• Clarify issues regarding Felton Water Bond processes and boundaries
• Clarify boundary issues regarding Montara Water and Sanitary District

With your continued support in 2007 we will
 

• Prevail in our validation lawsuit currently in appeal
• Monitor government agencies for compliance with the law
• Reach out to property owners and organizations in distress 

CPR is in great need of your aid in fighting for our rights. 
 
            Terry Gossett, President, Californians for Property Rights 
 

 

CPR Directors

Don Bacon, Mary Bordi, John Donovan, Dale Dunham, Terry Gossett, Judy Grote,
George Muteff, Nina Pellegrini, Marta Sehnal, Ron Sturgeon, Veronica True

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