BILL ANALYSIS Ó
AB 402
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
402 (Dodd)
As Amended August 26, 2015
Majority vote
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|ASSEMBLY: | |(May 28, 2015) |SENATE: |39-0 |(September 1, |
| |54-23 | | | |2015) |
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Original Committee Reference: L. GOV.
SUMMARY: Establishes a pilot program, until January 1, 2021,
for Napa 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.
The Senate amendments:
1)Remove Sonoma LAFCO from the pilot program established by this
bill.
2)Define "planned use" to mean any project that is included in
an approved specific plan as of July 1, 2015.
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3)Specify that the extension of services outside of boundaries
will not result in either a) adverse impacts of open space or
agricultural lands or b) growth inducing impacts.
4)Require the Napa and San Bernardino LAFCOs to submit the
specified report before January 1, 2020.
5)Require the pilot program established pursuant to this bill to
be consistent with existing law regarding just compensation
for the takings of private utilities.
6)Add chaptering out language to avoid conflicts with SB 239
(Hertzberg) of the current legislative session, currently
pending in the Assembly.
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.
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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 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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AS PASSED BY THE ASSEMBLY, this bill:
1)Allowed 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 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)Defined planned use to mean any project that is included in an
approved specific plan.
3)Required 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.
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4)Declared 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)Provided that existing law, which allows LAFCO to authorize a
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)Made other technical and conforming changes.
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
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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 Napa
and San Bernardino LAFCOs, until January 1, 2021, to allow
service extensions outside spheres of influence and
jurisdictional boundaries, beyond health and safety issues.
Under this bill, Napa 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 either adverse impacts
on open space or agricultural lands, or growth inducing
impacts; and, c) a later sphere of influence change 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 two LAFCOs submit a
report, before January 1, 2020, 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. Unfortunately,
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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."
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.
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.
7)Arguments in Opposition. California Building Industry
Association, opposed unless amended, argues that LAFCO's do
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not have unlimited resources, therefore, some LAFCOS do not
conduct MSR on areas outside a sphere of influence. However,
this bill requires that the extension of service or services
deficiency was identified and evaluated in a MSR.
Analysis Prepared by:
Misa Lennox / L. GOV. / (916) 319-3958 FN:
0001933