Fallbrook Sanitary Dist. v. San Diego Local Agency Formation Com., D007718

• Decision Date: 27 February 1989
• Docket Number: No. D007718,D007718
• Citation: 208 Cal.App.3d 753,256 Cal.Rptr. 590
• Court: California Court of Appeals Court of Appeals
• Parties: FALLBROOK SANITARY DISTRICT, Appellant, v. SAN DIEGO LOCAL AGENCY FORMATION COMMISSION et al., Respondents.

Page 590

256 Cal.Rptr. 590

208 Cal.App.3d 753

FALLBROOK SANITARY DISTRICT, Appellant, v. SAN DIEGO LOCAL AGENCY FORMATION COMMISSION et al., Respondents.

No. D007718.

Court of Appeal, Fourth District, Division 1, California.

Feb. 27, 1989.

As Modified March 13, 1989.

Review Denied May 18, 1989.

Behrens, Recht, Finley, Hanley & Holford, William B. Hanley and Janet R. Morningstar, Santa Ana, for appellant

Lagerlof, Senecal, Drescher & Swift, H. Jess Senecal, Los Angeles, and Jack T. Swafford, amicus curiae on behalf of appellant.

Lloyd M. Harmon, Jr., County Counsel, San Diego, Daniel J. Wallace, Chief Deputy, William D. Smith, Deputy, for respondents.

BENKE, Associate Justice.

FACTUAL SUMMARY

On December 15, 1986, the Fallbrook Public Utilities District (FPUD), pursuant to the Cortese/Knox Local Government Reorganization Act of 1985 (GOV.CODE, § 56000¹ et seq.), applied to the San Diego County Local Agency Formation Commission (LAFCO) for approval of a plan to incorporate the new city of Fallbrook.

The proposal FPUD made to LAFCO included dissolution of a number of county service areas and the partial detachment of one such service area. Under FPUD's proposal the service areas would be replaced with city improvement districts and park and recreation services provided by the new city. The boundaries of the new city encompassed entirely the territories of FPUD and the Fallbrook Sanitary District (FSD).

On December 9, 1987, LAFCO held a hearing on FPUD's proposal. At the hearing LAFCO approved the proposal but added to it a provision which would reorganize FSD and FPUD. Under the provision added by LAFCO, FSD and FPUD would have been transformed from independent special districts to subsidiary districts of the new city. As subsidiary districts they would be governed by the Fallbrook city council rather than their own independently elected board of directors. ( § 56078.)

FSD objected to LAFCO's proposal at the December 9, 1987, hearing. Later on January 11, 1988, LAFCO heard and denied FSD's request for reconsideration of LAFCO's earlier decision. On February 3, 1988, the Board of Supervisors of San Diego County conducted a protest hearing, determined that there was not a majority protest to the incorporation proposal approved by LAFCO and called an election on the proposal for June 7, 1988.

FSD filed a petition for a peremptory writ of mandate in the superior court on February 11, 1988. FSD's petition asked that LAFCO be ordered to delete that portion of the proposed Fallbrook incorporation plan which would make FSD a subsidiary district of the new city. After briefing by FSD and LAFCO, the petition was heard on February 29, 1988. The superior court entered an order denying the petition on March 1, 1988, and FSD filed a timely notice of appeal.

On June 7, 1988, a majority of the voters in the proposed city of Fallbrook rejected the incorporation proposal put before them.

ISSUES ON APPEAL

On appeal we are asked to determine whether FSD's objections to the incorporation proposal are now moot. If those objections are not moot, we are asked to determine whether LAFCO had the power to make additions to FPUD's incorporation proposal.

DISCUSSION

I While Moot, The Issues Presented Should Be Addressed

In light of the fact the Fallbrook incorporation proposal was not approved by the voters, LAFCO has moved to dismiss FSD's appeal as moot. Admittedly since FSD will not be made a subsidiary district, it is in no way aggrieved by the superior court's order denying its petition. "One who is not aggrieved by a decision of the lower court has no right of appeal therefrom. [Citations.] And of course an appeal which has become moot is subject to dismissal. [Citation.]" (People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 467, 89 Cal.Rptr. 290.)

However, where the issues raised on appeal affect the general public interest and there is a reasonable probability that the same questions will again be litigated, an appellate court may, although the appeal is subject to dismissal, adjudicate the issues involved. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717; People v. West Coast Shows, Inc., supra, 10 Cal.App.3d at p. 468, 89 Cal.Rptr. 290; see also Roe v. Wade (1973) 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147.) This rule has been applied where, as here, although an intervening election has resolved the parties' dispute, questions concerning the validity or interpretation of a statute remain unanswered. (County of Madera v. Gendron (1963) 59 Cal.2d 798, 804, 51 Cal.Rptr. 302, 382 P.2d 342 [validity of statute forbidding private practice of law by sitting district attorney question of public importance which should be decided even though defendant district attorney defeated at election held during pendency of appeal]; District Election Etc. Committee v. O'Connor (1978) 78 Cal.App.3d 261, 265, 144 Cal.Rptr. 442 [conflict between county charter requirements for initiative petition and Gov.Code requirements resolved by court even though initiative sponsors met requirements of both charter and code while case on appeal.] )

In this case FSD has argued that LAFCO does not have the power to make any material additions to government organization proposals which are brought before it. Because the questions FSD has raised about the scope of LAFCO's powers is a matter which affects 57 other local agency formation commissions in California (see § 56375), as well as the innumerable agencies which may be subject to substantial alteration by way of similar incorporation proposals, there is a public interest in resolving the questions FSD has raised. Moreover according to LAFCO's executive director, LAFCO has made additions to six other incorporation proposals in San Diego County. This fact suggests the issue is likely to arise again. Accordingly, while we must dismiss the appeal, we will nonetheless adjudicate the merits of FSD's contention that LAFCO did not have the power to make additions to FPUD's proposal. ² (See People v. West Coast Shows, Inc., supra, 10 Cal.App.3d 462, 469, 89 Cal.Rptr. 290.)

II LAFCO's Powers

In 1985, the Legislature repealed the Knox-Nisbet Act (former § 54773 et seq.), the District Reorganization Act of 1965 (former § 56000 et seq.) and the Municipal Organization Act of 1977 (former § 35000 et seq.), and replaced these laws with the Cortese-Knox Act (act). (Stats.1985, ch. 541, § 3, p. 1920.) The provisions of the new act, commencing with section 56000 became operative January 1, 1986. (Ibid.)

Section 56001 provides in part:

"The Legislature finds and declares that it is the policy of the state to encourage orderly growth and development which are essential to the social, fiscal, and economic well-being of the state. The Legislature recognizes that the logical formation and determination of local agency boundaries is an important factor in promoting orderly development. Therefore, the Legislature further finds and declares that this policy should be effected by the logical formation and modification of the boundaries of local agencies.

".... The Legislature also recognizes that when areas become urbanized to the extent that they need the full range of community services, priorities are required to be established regarding the type and levels of services that the residents of an urban community need and desire; ... The Legislature finds and declares that a single governmental agency, rather than several limited purpose agencies, is in many cases better able to assess and be accountable for community service needs and financial resources and, therefore, is the best mechanism for establishing community service priorities." (Emphasis added.)

Section 56107 in turn provides that the act "shall be liberally construed to effectuate its purposes."

Consistent with its stated purposes, the act is the "sole and exclusive authority and procedure" for making changes in local governmental organizations. ( § 56100.) Section 56325 requires that every county have a local agency formation commission. Commission members are appointed by local legislative bodies. ( § 56325.) Section 56375, subdivision (a), gives those commissions the following powers:

"To review and approve or disapprove with or without amendment, wholly, partially, or conditionally, proposals for changes of organization or reorganization...." ³

The commission has been described as the " 'watchdog' the Legislature established to guard against the wasteful duplication of services that result from indiscriminate formation of new local agencies or haphazard annexation of territory to existing local agencies." (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 884, 150 Cal.Rptr. 606, quoting City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545, 553, 79 Cal.Rptr. 168.)

After a change of organization or reorganization has been approved by a commission, the change must then be passed upon by a local conducting authority pursuant to the provisions of section 57000 et seq. A "conducting authority" is a local legislative body--usually a board of supervisors or city council. ( § 57075) A conducting authority may reject an incorporation of inhabited territory only when it has received signed protests from a majority of the voters in the territory. ( §§ 57077, subd. (a)(1), 57078, subd. (b).) Otherwise the conducting authority must either hold an election on the proposal or approve it without an election. ( § 57077, subd. (a)(2), (3).)

In this case FSD argues the powers described in section 56375, subdivision (a), only permit a commission to make its material additions a condition of approval. Under FSD's interpretation, LAFCO could make substantive additions to a proposal, but the initiators of the proposal would always be free to withdraw their proposal entirely if they found the conditions imposed by the commission unacceptable.

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