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

Nelson E. WEBER and Dorothy B. Weber, Petitioners and Appellants, v. CITY COUNCIL OF THOUSAND OAKS, COUNTY OF VENTURA, State of California, and Velma S. Quinn, City Clerk of the City of Thousand Oaks, County of Ventura, State of California, Respondents.

Civ. 39337.

Decided: September 29, 1972

Christen Brun Henrichsen, Thousand Oaks, for petitioners and appellants. Raymond C. Clayton, City Atty., City of Thousand Oaks, for respondents.

Acting on petition by a landowner, the City of Thousand Oaks passed a resolution asserting its intention to annex territory comprising both the landowner's and appellants' adjoining property. (Gov.Code, § 35305.) Treating the territory as uninhabited (Gov.Code, § 35303), appellants being the only two registered voters residing there, the city proceeded in the manner prescribed by the Annexation of Uninhabited Territory Act of 1939 (Gov.Code, §§ 35300–35326). After hearing and rejecting protests by appellants,1 the city enacted and filed with both the secretary of state and the Ventura County recorder an ordinance annexing the territory. Before the ordinance either became effective or was filed with the secretary of state,2 appellants petitioned for writ of mandate (Code Civ.Proc. § 1085). Their petition being denied, they appealed to this court.


Appellants' sole contention on appeal is that the Annexation of Uninhabited Territory Act of 1939 unconstitutionally denies inhabitants of so-called uninhabited territory (i. e., territory in which fewer than twelve registered voters reside; see Gov. Code, § 35303) the equal protection of the laws because, in contrast to inhabitants of inhabited territory, the former are not permitted to vote on proposed annexation of their lands.

Respondents, the city council and clerk of Thousand Oaks, join issue on the constitutional question and further challenge appellants' standing before this court, arguing (1) since the annexation proceedings are now completed, the annexation can be challenged only in a quo warranto proceeding, (2) appellants failed to exhaust their administrative remedies and (3) appellants failed to raise before the city council, and therefore waived, their constitutional objection.


The procedural barriers respondents seek to erect are insubstantial. Respondents may not block appellants' right to appeal by merely completing the annexation proceedings following denial of appellants'; petition for writ of mandate. A mandamus action begun before the proceedings are final is timely and proper, even though the annexation proceedings are completed before an appeal from the denial of the writ can be perfected. (Amer. Distl. Co. v. City Council, of City of Sausalito (1950) 34 Cal.2d 660, 213 P.2d 704; City of Anaheim v. City of Fullerton (1951) 102 Cal.App.2d 395, 227 P.2d 494.)

Respondents' exhaustion of remedies argument is based on appellants' failure to appear before the Local Agency Formation Commission (‘LAFCO’; see Gov.Code, § 54773 et seq.) or to petition the city council for reconsideration of its the city council for reconsideration of its decision to annex. While the validity of the proposed annexation depended on approval by LAFCO (Gov.Code, § 35002) as being consistent with orderly urban development, the initial decision to annex was made by the city council and any duty of opposition appellants may have had did not require appearance at the ancillary commission proceeding. Appellants did appear before the city council and respondents have cited no case in which a motion for reconsideration of a decision, already objected to, was held necessary to satisfy the exhaustion of remedies requirement.

As to the failure to raise the precise constitutional question argued here before the city council, we think it dispositive that the city council was sitting essentially as a legislative body in deliberating on the annexation proposal (25 Ops.Atty. Gen. 107), not as a quasi-judicial administrative body.

Appellants' claim that the Annexation of Uninhabited Territory Act of 1939 is unconstitutional is well taken, but not for the reasons advanced.

Appellants point to inequality of treatment between residents of uninhabited territory and those of inhabited territory, maintaining that since relections are held on the question of proposed annexation of inhabited territory, why should they not also be held respecting annexation of uninhabited territory. While appellants can prevail on that issue, it is not the ultimate one here.

Appellants do not contend the Equal Protection Clause is violated in the sense that some interested persons have the right to vote on the annexation of a particular uninhabited territory while others equally qualified to vote are denied that right. Rather, they maintain it is a violation of equal protection for affected residents to be able to vote for or against annexation of inhabited territory when there is no such right in proposed annexation of uninhabited territory. Thus, the constitutionality of treating residents of inhabited and uninhabited territories differently presents an equal protection issue to be resolved by application of the ‘economic regulation’ test. Any disparity in the treatment of the two classes is consonant with the Constitution if it is intended to achieve a legitimate objective and there is some rational basis for it. We are not confronted (at this stage of the inquiry) with the issue to which Kramer v. Union Free School Dist. No. 15 (1969) 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 and Cipriano v. City of Houma (1969) 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 were addressed, and the stricter ‘fundamental right’ equal protection test applied there is not applicable to this issue. Those cases involved discriminations among otherwise eligible voters by which some were denied the right to vote in certain elections while others were permitted to vote. (See Adams v. City of Colorado Springs (D.Col., 1970) 308 F.Supp. 1397; aff. 399 U.S. 901, 90 S.Ct. 2197, 26 L.Ed.2d 555.)

Both sides rely on Adams v. City of Colorado Springs, supra. Adams involved a Colorado annexation statute which established two different annexation procedures, requiring an election in a territory proposed for annexation when at least one-sixth but not more than two-thirds of the territory's perimeter was contiguous to the boundary of the annexing city. The court in Adams analyzed the problem as follows:

We must also recognize that there is no absolute constitutional right under the due process clause of the Fourteenth Amendment to vote on a proposed annexation. See Sailors v. Board of Ed., etc., 387 U.S. 105, 87 S.Ct. 1549, 18 L. Ed.2d 650 (1967); Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). This long standing undisturbed body of low, holding that the state legislature has the ultimate control of the method of annexing by its agency cities allows the legislature to grant the right to vote in some types of annexation and to deny it in others, provided that there is some rational basis for the distinction. [¶] The equal protection clause does not preclude creation of distinct classes. It does require that such classifications be reasonably related to some legitimate state interest. It also demands the all those within the class created be treated equally. Within each of the present classes all persons residing within the territory to be annexed are treated equally with respect to the right to exercise the franchise. The sole question is then whether the classification is rational.

In Adams, the court upheld the classification because the ‘inter-relationship’ between a city and an unincorporated area is logically much greater where the latter is in effect an island within the city, and because residents of the unincorporated area, although benefitting from proximity to the city, would be unlikely to vote to surrender their tax exempt status.

The rational basis found in Adams does not exist here, A so-called uninhabited territory is unlikely to be a ‘tax colony’ where persons who earn their livings in, and enjoy the services of, a neighboring city take shelter from municipal taxation (see Adams, 308 F.Supp. p. 1404), for an uninhabited territory which offered the advantages of a tax colony would not long remain uninhabited. We can see no reason why residents of an uninhabited area should be more inclined than those of an inhabited one to veto proposed annexation. Mor do we find a more compelling economic basis for municipalities to annex uninhabited areas than inhabited ones. While situations might occur where it would be reasonable to permit a city to annex sparsely inhabited territory without allowing residents to vote, the statute is not limited to those situations. As written, the act may be used for any conceivable reason to annex territory of any size or population density so long as no more than eleven registered voters reside there. (See City of Anaheim v. City of Fullerton, supra, 102 Cal.App.2d 395, 227 P.2d 494.)

If we are correct in concluding there is no rational basis for denying residents of an uninhabited area the right to vote on proposed annexation, we must consider a further question. Although there are formal differences, the protest provisions of the act (Gov.Code, §§ 35312–35313.6), by permitting owners of over half the assessed value of all property in the territory to halt an annexation, in effect give all affected landowners the right to vote. If this form of franchise stands constitutional muster, then appellants cannot prevail.

But the protest provisions cannot be sustained as affording a constitutionally sufficient right to vote. They permit a conceivably small numerical minority among the residents of a territory, or even (as here) a single nonresident, to outvote a numerical majority, some of whom (lessees) are not even permitted a voice. As to some protesting residents, this is a violation of the ‘one man, one vote’ principle announced in Reynolds v. Sims (1964) 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; as to others, it is a violation of the principles stated in Kramer and Cipriano, supra, and Phoenix v. Kolodziejski (1970) 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523.

A threshold issue respecting the rule of Reynolds v. Sims, supra, is whether an annexation election in an ‘uninhabited territory’ is subject to the ‘one man, one vote’ principle. Heretofore, that rule has been applied by the United States Supreme Court to state and federal governmental elections (Reynolds v. Sims, supra), to elections of officers of local governmental units having general governmental powers over a geographic area (Avery v. Midland County, Tex. (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45), and to elections of officers to governmental boards performing important functions within a district (Hadley v. Junior College District (1970) 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45).

Because of the manner and contexts in which the test of the applicability of the Reynolds v. Sims rule has developed, we have difficulty determining whether the test is satisfied here. For where so-called uninhabited territory is concerned, the geographic area and the number of people involved are generally quite small, seemingly too small to statisfy the notion expressed in both Hadley and Avery that the election should have a potential impact on a substantial number of persons living in an area of substantial size. (See also Burrey v. Embarcadero Mun. Improvement Dist. (1971) 5 Cal.3d 671, 97 Cal.Rptr. 203, 488 P.2d 395.) Nonetheless, we think the substantial effect annexation has on all people within the annexed area, even though they be relatively few and the area relatively small, brings this case within the spirit of Sims, Hadley and Avery, requiring application of the ‘one man, one vote’ rule. (See County of Riverside v. Whitlock (1972) 22 Cal.App.3d 863, 99 Cal.Rptr. 710.)

The failure of the protest procedure here in question to satisfy the ‘one man, one vote’ rule is established by Burrey v. Embarcadero Mun. Improvement Dist. supra. Burrey holds that even though Reynolds v. Sims and its progeny deal with district malapportionment which dilutes the votes of some voters, the equality principle of Reynolds v. Sims is applicable when the vote is weighted on the basis of property value. To quote from Burrey:

From an individual viewpoint, it hardly matters to the voter whether it is his next-door neighbor, a stranger in another district, or a nonresident land developer whose vote is assigned substantially more weight than his own: the disparity dilutes his voting strength and makes of his attempt to affect the court of his local government through the ballot box a bootless and empty gesture. [5 Cal.3d p. 678, 97 Cal.Rptr. p. 208, 488 P.2d p. 400]

Further, the Kramer, Cipriano and Kolodziejski cases are violated when nonowner residents of the territory to be annexed are denied the right to vote.

In Kramer, the United States Supreme Court stated:

Statutes granting franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. [395 U.S. at pp. 626–627, 89 S.Ct. at p. 1889.]

In Cipriano, the court held that the validity of a statute limiting the franchise to ‘specially interested’ voters ‘depends on ‘whether all those excluded are in fact substantially less interested or affected than those the statute includes.’' (395 U.S. at p. 704, 89 S.Ct. at p. 1900.)

Kolodziejski invalidated a voting scheme which allowed only landowners to vote on the issuance of city general-obligation bonds. The court pointed out that although property owners and nonowners have different interests, nonowners were not substantially less interested in the issuance of bonds. All residents stood to benefit from funds derived from the bonds and even though the bonds were to be repaid from real property taxes, the burden would ultimately fall on owners would pass the cost on to lessees and consumers.

Obviously, the decision whether a particular territory is to remain under county government, or is to be brought under the governance of a municipality, substantially affects the lives of all residents of the territory proposed for annexation. The quality and variety of services provided by the city and by the county may differ markedly, and greater taxation is inevitable for those brought within the new city limits. Economic considerations aside, the rural resident may justly ask if the social costs of being urbanized do not outweigh the benefits to be derived. Clearly, nonowner residents are not substantially less affected by annexation than owner residents or nonresident owners, but may be even more affected than the latter. (Cf. County of Riverside v. Whitlock, supra, 22 Cal.App.3d 863, 99 Cal.Rptr. 710.) Since there is no compelling governmental interest which justifies denying the franchise to be excluded residents, the protest provision is patently inadequate as a substitute for resident voting.

Our Supreme Court in Curtis v. Board of Supervisors of Los Angeles County (1972), California Supreme Court, 104 Cal.Rptr. 297, 501 P.2d 537, held invalid a statutory protest provision allowing frustration of a proposed incorporation by owners of fifty percent of the assessed value of the affected land (exclusive of improvements) on the ground that the protest provision constituted an impermissible burden on the right of affected electors to vote on the incorporation question. The court pointed out that the landowner protest provision favored landowners (residents or not) over nonowner residents, owners of unimproved land over owners of improved land, and owners of valuable land over owners of less valuable land, and it found no compelling state interest to the furtherance of which the provision was necessary.

Virtually the same forms of discrimination exist in the protest provision under examination3 and, while, the question here is not whether the protest provision burdens an existing right of affected voters to approve or disapprove an annexation, but rather whether the protest provision is an adequate substitute for voting Curtis compels the result we reach here.

The judgment is reversed. The cause is remanded with instructions to the trial court that the writ prayed for issue.


1.  The value of appellants' land was less than half the total assessed value of the area to be annexed; see Gov.Code, § 35312.

2.  The annexation would not be complete until both events had occurred; see Guerrieri v. City of Fontana (1965) 232 Cal.App.2d 417, 42 Cal.Rptr. 781.

3.  The only significant difference is that for annexation purposes the valuation of both land and improvements is considered. (Gov.Code, § 35313, subd. (c).) This being the case, there is no discrimination in favor of owners of unimproved land against owners of improved land.

CLARK, Associate Justice.

LILLIE, Acting P. J., and THOMPSON, J., concur. Hearing granted; SCHAUER, J., sitting in place of BURKE, J., who deemed himself disqualified.

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Docket No: Civ. 39337.

Decided: September 29, 1972

Court: Court of Appeal, Second District, Division 1, California.

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