BILL ANALYSIS Ó
AB 402
Page 1
ASSEMBLY THIRD READING
AB
402 (Dodd)
As Amended May 18, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+----------------------|
|Local |6-3 |Gonzalez, Alejo, |Maienschein, Linder, |
|Government | |Chiu, Cooley, |Waldron |
| | |Gordon, Holden | |
| | | | |
| | | | |
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SUMMARY: Establishes a pilot program, until January 1, 2021, for
the Napa, Sonoma, and San Bernardino local agency formation
commissions (LAFCOs) to authorize a city or district to extend
services outside of boundaries for additional purposes beyond
responding to a threat to public health or safety. Specifically,
this bill:
1)Allows the Napa, Sonoma, and San Bernardino LAFCOs, until
January 1, 2021, to authorize a city or district to provide new
or extended services outside its jurisdictional boundaries and
outside its sphere of influence, if consistent with adopted
policy, to support existing or planned uses involving public or
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private properties, subject to approval at a noticed public
hearing where LAFCO makes all of the following determinations:
a) The extension of service or services deficiency was
identified and evaluated in a review of municipal services
(MSR) prepared, pursuant to existing law;
b) The extension of service will not result in adverse
impacts on open space or agricultural lands, or have growth
inducing impacts; and,
c) A later change of organization involving the subject
territory and its affected agency is not feasible under
existing law or desirable based on the adopted policies of
LAFCO.
2)Defines planned use to mean any project that is included in an
approved specific plan.
3)Requires the Napa, Sonoma, and San Bernardino LAFCOs to submit a
report to the Legislature on their participation in the pilot
program, including how many requests for extension of services
were received pursuant to the authority granted by this bill,
and the action by the LAFCO to approve, disapprove, or approve
with conditions the extension of services.
4)Declares that a special law is necessary and that a general law
cannot be made applicable within the meaning of the California
Constitution because of the unique circumstances in Napa,
Sonoma, and San Bernardino.
5)Provides that existing law, which allows LAFCO to authorize a
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city or district to provide new or extended services outside it
jurisdictional boundary and outside its sphere of influence to
respond to an existing or impending threat of public health and
safety, must be consistent with adopted policy.
6)Makes other technical and conforming changes.
EXISTING LAW:
1)Establishes the Cortese-Knox-Hertzberg Local Government
Reorganization Act of 2000 (Cortese-Knox-Hertzberg Act), which
defines the procedures for the organization and reorganization
of cities, counties, and special districts.
2)Authorizes a city or district to provide new or extended
services by contract or agreement outside its jurisdictional
boundaries, if it requests and receives written approval from
the LAFCO in the affected county.
3)Allows a LAFCO to authorize a city or district to provide new or
extended services outside its boundaries, but within its sphere
of influence in anticipation of a later change of organization.
4)Allows a LAFCO to authorize a city or district to provide new or
extended services outside its boundaries and outside its sphere
of influence to respond to an existing or impending threat to
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the public health or safety of the residents of the affected
territory, if both of the following requirements are met:
a) The entity applying for the contract has provided LAFCO
with documentation of a threat to the health and safety of
the public or the affected residents; and,
b) The LAFCO has notified any alternate service providers,
including any water corporation or sewer system corporation
that has filed a map and statement of service capabilities
with the LAFCO.
5)Establishes requirements and a timeframe for an executive
officer, upon receipt of a request for approval by a city or
district of a contract to extend services outside boundaries.
Requires, upon receipt of a complete request, the request to be
placed on the agenda or a LAFCO meeting, unless the LAFCO has
delegated the approval of requests to the executive
commissioner.
6)Requires the LAFCO or executive officer to approve, disapprove,
or approve with conditions the contract for extended services.
Allows an applicant, if a contract is disapproved or approved
with conditions, to request reconsideration and cite the reasons
why.
7)Provides exemptions to the requirement in existing law for
specified contracts or agreements, including contracts or
agreements solely involving two or more public agencies,
contracts for the transfer of nonpotable or nontreated water,
and contracts or agreements solely involving the provision of
surplus water to agricultural lands and facilities.
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FISCAL EFFECT: None
COMMENTS:
1)Current Law. The Cortese-Knox-Hertzberg Act delegates the
Legislature's power to control the boundaries of cities and
special districts to LAFCOs. The Legislature created LAFCOs to
discourage urban sprawl, preserve open space and prime
agricultural lands, encourage the orderly formation and
development of local agencies, and to ensure the efficient
provision of government services.
The Cortese-Knox-Hertzberg Act requires that cities and
districts must get a LAFCO's written approval before they can
serve territory outside their boundaries pursuant to AB 1335
(Gotch), Chapter 1307, Statutes of 1993. This requirement was
established because of a concern that some cities and districts
might be circumventing LAFCO review by signing contracts to
provide services outside their boundaries without annexing the
territory. AB 1335, however, recognized the need to accommodate
unexpected local conditions and several exemptions were
established. LAFCO approval is not required for contracts or
agreements solely involving two or more public agencies where
the public service to be provided is an alternative to, or
substitute for, public services already being provided by an
existing public service provider and where the level of service
to be provided is consistent with the level of service
contemplated by the exiting service provider. In 1999, the
Legislature expanded these provisions to allow services outside
spheres of influence to correct public health and safety
problems, pointing to failing septic tanks and water wells to
exemplify the necessity for the change.
2)Bill Summary. This bill establishes a pilot program for the
Napa, Sonoma, and San Bernardino LAFCOs, until January 1, 2021,
to allow service extensions outside spheres of influence and
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jurisdictional boundaries, beyond health and safety issues.
Under this bill, Napa, Sonoma and San Bernardino LAFCOs may
authorize, if consistent with their adopted policies, a city or
district to extend services to support existing or planned uses,
as defined by this bill, involving public or private properties,
if the approval is done at a noticed public hearing where the
LAFCO makes specified determinations. The determinations must
include that: a) the extension of service or service deficiency
was identified and evaluated in an MSR; b) the extension of
service will not result in adverse impacts on open space or
agricultural lands, or have growth inducing impacts; and, c) a
later change of organization involving the subject territory and
its affected agency is not feasible, or desirable based on the
adopted policies of the LAFCO. Additionally, this bill requires
that the three LAFCOs submit a report to the Legislature on
their participation in the five-year pilot program.
This bill is sponsored by the author.
3)Author's Statement. According to the author, "There are
instances when existing or approved developments lie outside a
sphere of influence of a municipal service provider, and that
are in need of those municipal services. For example, the ABAG
[Association of Bay Area Governments] Regional Housing Needs
Allocation (RHNA) process may require the location of affordable
housing outside the City of Napa's sphere of influence.
Unfortunately, current law will not permit municipal services to
be extended outside the service provider's sphere of influence
unless a city or district receives written approval from the
LAFCO in the affected county pursuant to a very limited set of
special circumstances.
"An additional example would be Whetstone winery in Napa. This
existing development lies adjacent to a city water line and is
outside of the city's sphere of influence in an unincorporated
area surrounded by agricultural lands. When the property owner
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submitted the application for water service to be extended to
this property to allow for a fire hydrant to be serviced, the
extension was denied because this was not a residential property
and the health and safety exemption in [current law] could not
be applied. The only means to extend water to this property
would be to annex it into the city's sphere of influence. With
a city water line running adjacent to the property, allowing
Whetstone an exemption to access this city water rather than
annexing the property into the city's sphere of influence would
be a greater protection to the surrounding agricultural lands
than extending the sphere of influence into the unincorporated
area."
4)Policy Considerations. Proposed changes to the laws governing
outside service extensions have been debated among LAFCOs for
many years and have largely divided practitioners. On one hand,
some LAFCOs can provide examples where outside service
extensions seem to be the only option because of local
geography, politics, and other circumstances, so more
flexibility is appealing. On the other hand, some LAFCOs feel
that an expansion to this provision of law is fundamentally
against the core purpose and mission of LAFCOs and could impact
agricultural lands or have growth inducing effects.
a) Growth Inducing? In opposition to this bill, the
California Farm Bureau Federation argues "In order to carry
out these responsibilities for planning and shaping the local
and orderly development, LAFCOs must develop and determine a
[sphere of influence] SOI for each city and special district
and enact policies designed to promote logical and orderly
development of areas within the SOI. By providing
significantly broader authority for LAFCOs to approve service
extensions beyond SOIs in support of urban development, we
believe that [this bill] would render SOIs moot as probable
service area boundaries."
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b) Terminology. The Legislature may wish to ask the author
to strike out the term "existing or planned use" to be
consistent with the author's intent to address service
extensions to existing developments.
The Legislature may wish to consider whether it would be
possible for LAFCO to approve an extension of services for a
planned use that would not inherently have growth inducing
impacts. The Legislature may wish to consider if this bill
may lead to costly litigation for LAFCOs if this bill
requires substantive changes in LAFCO policies which will
influence growth patterns and affect land use, thus leading
to potential impacts to the environment that may be subject
to California Environmental Quality Act.
c) Impact on Voters. The Legislature may wish to consider if
this bill will result in more cities and districts extending
services outside their boundaries instead of annexing
territory into their boundaries. If more services are
extended outside of boundaries, instead of annexing territory
into a district, then voters within that territory cannot
vote in the elections that directly impact the service they
are receiving.
5)Related Legislation. This bill is substantially similar to SB
1498 (Emmerson) of 2012, which was never heard in the Senate
Governance and Finance Committee.
6)Arguments in Support. Napa County argues that this bill seeks
to provide LAFCOs with more flexibility to approve service
extensions outside of a sphere of influence without requiring
annexation of territories that might lead to unintended sprawl.
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7)Arguments in Opposition. The California Farm Bureau Federation
argues, "As amended in the Assembly Local Government Committee,
the damage caused by the bill would be limited to three
counties: Napa, Sonoma, and San Bernardino and for a period of 5
years. The specific plan requirement will do nothing to limit
the negative impacts of urban development outside a
jurisdiction's SOI while creating a huge loophole in the
landmark regional transportation planning, housing, and
greenhouse gas reduction measure: SB 375 (Steinberg) [Chapter
728, Statutes of 2008]."
Analysis Prepared by:
Misa Lennox / L. GOV. / (916) 319-3958 FN:
0000455