BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |AB 402 |Hearing | 6/24/15 |
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|Author: |Dodd |Tax Levy: |No |
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|Version: |6/16/15 |Fiscal: |No |
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|Consultant|Favorini-Csorba |
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LOCAL AGENCY SERVICES: CONTRACTS
Establishes a pilot program to allow local agency formation
commissions in Napa and San Bernardino counties to authorize
extensions of service to areas outside of a local agency's
sphere of influence to support existing or planned uses.
Background and Existing Law
The Planning and Zoning Law requires every county and city to
adopt a general plan that sets out planned uses for all of the
area covered by the plan. Cities' and counties' major land use
decisions-including development permitting-must be consistent
with their general plans. In this way, the general plan is a
blueprint for future development. The general plan must cover
all of the area within a city or county's boundaries and can
include areas outside of the agency's boundaries that, in the
judgment of local planners, relate to the planning effort. This
can include planning development in areas that may become the
future boundaries of the agency. Local agencies may also adopt
specific plans that provide for the systematic implementation of
a general plan in a particular area.
The Cortese-Knox-Hertzberg Local Government Reorganization Act
(Act) delegates the Legislature's power to control the
boundaries of cities and special districts to local agency
formation commissions (LAFCOs). Each county has a LAFCO, which
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is governed by a board of elected officials-including city
council members and county supervisors-and at least one member
of the public appointed by the other members. About half of
LAFCO boards have representatives from special districts.
Controlling boundaries means LAFCOs control the timing and
location of development, because they determine the type of
services that are available to support development-and those
that aren't. 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. LAFCOs must adopt written policies to further these
goals.
LAFCOs also implement these goals by determining a "sphere of
influence" for each local agency in its county. A sphere of
influence designates an agency's probable future physical
boundary and service area. It is territory that a city or
special district will annex in the future. It's also the area
where the local government will build facilities and deliver
services sometime in the future. Importantly, an agency's
sphere must be contiguous with its current boundaries, and
LAFCOs may recommend boundary changes based on spheres of
influence. LAFCOs must consider these factors when determining
spheres of influence:
Present and planned land uses;
Present and probable need for public facilities and
services;
Present and probable future capacity of public
facilities and services; and
Existence of any social or economic communities of
interest, if relevant.
Before a commission revises cities and special districts'
spheres of influence, a municipal service review (MSR) must be
prepared. In conducting an MSR, LAFCOs must review all of the
agencies that provide the public services within the study area.
LAFCOs must revise the spheres of influence every five years.
LAFCOs must also revise the MSRs every five years - some time
before revising a sphere of influence.
The Act also requires cities and districts to get a LAFCO's
written approval before they can serve territory outside their
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boundaries. 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. However, the
Legislature recognized the need to accommodate unexpected local
conditions and several exemptions were established. 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.
When a city or special district requests to extend services
outside of its boundaries, the LAFCO must follow certain
procedures and deadlines to determine whether the application is
complete and then approve, disapprove, or conditionally approve
the extension of service.
Some local officials want to expand the range of circumstances
under which they can extend services outside of their agencies'
spheres of influence.
Proposed Law
AB 402 establishes a pilot program that allows the Napa and San
Bernardino LAFCOs to authorize a city or special district to
extend services outside its sphere of influence to support
existing or planned uses, if that extension is consistent with
the LAFCOs policies (such as those that encourage orderly
development). The bill defines "planned use" to mean any
project that is included in a local agency's specific plan.
This pilot program sunsets on January 1, 2021.
Under AB 402, in order to approve an extension of service to an
area outside of a local agency's sphere of influence, the LAFCO
must find that:
A municipal service review has identified and evaluated
a services deficiency or the proposed extension of
services;
The extension of service will not result in adverse
impacts on open space or agricultural lands or have growth
inducing impacts; and
A later change of organization involving the subject
territory and its affected agency is not feasible under
this division or desirable based on the adopted policies of
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the commission.
AB 402 requires the Commission, when reviewing a request to
extend services outside of a local agency's sphere of influence,
to follow the same process for ensuring completion of the
application and deadlines as apply to other requests to extend
services.
AB 402 requires the Napa and San Bernardino LAFCOs to submit a
report to the Legislature on their participation in the pilot
program that includes the number of requests were received under
the program and the actions that the LAFCOs took.
AB 402 also makes technical changes to the existing code
sections that govern extension of services.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . AB 402 provides 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. Under current law, an agency's
sphere must be extended to contiguous territory. Thus, if an
agency wants to serve an area outside its sphere for purposes
other than health and safety, its sphere must be extended all
the way to that area. This can lead to illogical and
inefficient development patterns if a city wants to serve an
existing development. For example, Whetstone winery in Napa is
an existing development that 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 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, potentially allowing future development in
all of the territory between the city's current sphere and the
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winery. 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.
2. Sphere of impotence . AB 402 cuts two ways when it comes to
the intent of the Cortese-Knox-Hertzberg Act to promote orderly
development and efficient service delivery. While allowing
extensions of service to existing uses might avoid some sprawl,
the inclusion of planned uses in AB 402 undermines a key tool
for LAFCOs-the sphere of influence. Since spheres of influence
are supposed to take into account the planned uses within an
area, extending service to an area outside an agency's sphere of
influence means that at some previous point, the LAFCO should
have considered and rejected an action to include that area in
the local agency's sphere. Thus, allowing extensions of service
to areas outside a sphere of influence for a planned use could
render the established spheres meaningless. In addition, some
local officials that sit on a LAFCO's board also control updates
to the general and specific plans. This leaves open the
potential for a planned use to be designated for a given area,
which could then receive a service extension under AB 402. In
this way, AB 402 might enable "leapfrog development" in remote
areas that would not otherwise be supported. In order to
protect the intent of the Act, the Committee may wish to
consider amending AB 402 to remove "planned use" as a basis for
extending service.
3. Let's get specific . AB 402 does not specify a date by which
the report on the pilot program must be completed. The
Committee may wish to consider amending AB 402 to require the
report to be submitted by January 1, 2020 to allow the
Legislature time to evaluate the effects of the pilot program
before considering whether to extend or discontinue it.
4. Let's be clear . Two sections of AB 402 are unclear. The
Committee may wish to consider the following amendments to
clarify that:
The extension of service will not result in either (1)
adverse impacts on open space or agricultural lands, or (2)
growth inducing impacts. As written, there is some
ambiguity as to whether a LAFCO could find that an
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extension of service will not meet one of those conditions
while remaining silent on the other.
A sphere of influence change involving the territory is
not feasible (instead of a later change of organization, as
written). Because changes of organizations must follow a
sphere of influence change, under AB 402 a change of
organization would never be feasible when an agency
requests to extend service outside of its sphere, making
the finding redundant.
5. Special legislation . The California Constitution prohibits
special legislation when a general law can apply (Article IV,
§16). AB 402 contains findings and declarations stating that a
general law cannot be made because of the unique circumstances
in Napa County and San Bernardino County.
6. Related legislation . SB 1498 (Emmerson, 2012) would have
given LAFCOs in counties statewide authority similar to the
authority that AB 402 gives to Napa and San Bernardino counties.
It also would have repealed a prohibition on annexations where
a disadvantaged, unincorporated community is contiguous to the
proposed annexation. SB 1498 was never heard in the Senate
Governance and Finance Committee.
Earlier this year, the Senate Governance & Finance Committee
voted 5-2 to approve SB 239 (Hertzberg, 2015), which would
require a public agency to obtain a LAFCO's approval to provide
new or extended services under a fire protection reorganization
contract, pursuant to a specified approval process. Because AB
402 and SB 239 amend the same code sections in different ways,
if both bills are signed into law the changes made by the bill
that is chaptered first will get wiped out by the changes made
by the bill that is chaptered last. To prevent one bill from
"chaptering-out" the other, the Committee may wish to consider
adopting technical "double-jointing" amendments that allow both
bill's provisions to become law regardless of the order in which
they are chaptered.
7. Technical amendment . The Committee may wish to consider a
technical amendment to correct a cross-reference for the
definition of "local publicly owned electric utility." The bill
references Section 9604 of the Public Utilities Code, but
Chapter 558, Statutes of 2008 amended the Public Utilities Code
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and moved the definition to Section 224.3.
Assembly Actions
Assembly Local Government Committee: 6-3
Assembly Floor: 54-23
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Support and
Opposition (6/18/15)
Support : Napa County LAFCO; Napa County Board of Supervisors;
San Bernardino LAFCO.
Oppose Unless Amended: California Building Industry
Association; California Farm Bureau Federation.
Opposition : California Farm Bureau Federation; Napa County Farm
Bureau; California Building Industry Association.
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