CITIZENS AGAINST FORCED ANNEXATION v. LOCAL AGENCY FORMATION COMMISSION OF LOS ANGELES COUNTY LAFCO (1981)

This action was commenced by two individual residents of the City of Rancho Palos Verdes, along with three homeowners' organizations (hereafter collectively referred to as plaintiffs) to prevent annexation of a certain unincorporated area to the City of Rancho Palos Verdes. The trial court issued a preliminary injunction prohibiting further action by way of effecting the annexation. The Local Agency Formation Commission of Los Angeles County and its executive officer (hereafter the Agency) have appealed.

Plaintiffs' attack on the proposed annexation is grounded on a claim that section 35228(b) of the California Government Code is unconstitutional. That section is part of the statutory scheme governing a territory's annexation to or detachment from an incorporated city and provides that an election to determine the issue of annexation shall be conducted among the voters of the territory to be annexed, if 25% or more of the voters or the owners of 25% or more of the assessed value of the land therein file written protests.

On the other hand Government Code section 35231 provides that residents in the annexing city may also vote on the issue if the annexation would increase either the voting population or the assessed value of land in that city by 50% or more.

In summary, the question of whether or not an area is to be annexed is generally determined by the residents of the territory to be annexed except in a relatively large annexation. Plaintiffs contend that such procedure denies equal protection of the law to the residents of the annexing city.

The City of Rancho Palos Verdes, a residential community located on the Palos Verdes Peninsula with a population of 40,000 and an area of 12.3 square miles, which was incorporated in 1973, was itself born out of litigation after the Supreme Court in Curtis v. Board of Supervisors, 7 Cal.3d 942, 104 Cal.Rptr. 297, 501 P.2d 537, struck down as unconstitutional and violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, certain provisions of the Government Code relating to the incorporation of cities.

Contiguous to the City of Rancho Palos Verdes is an unincorporated area known as Eastview which has an area of 840 acres and a population of 9,055 persons. It also is a single family residential community but is more densely inhabited than is Rancho Palos Verdes. When Rancho Palos Verdes was incorporated, Eastview was specifically excluded from the incorporation.

Eastview now seeks to annex to the City of Rancho Palos Verdes, and if such annexation is effected, the population of Rancho Palos Verdes would be increased by 20%, and the area by 10%. At present all preliminary steps for annexation have been completed. The next and crucial step is the calling of an election among the residents of Eastview.

Plaintiffs concede in their brief that “The state in the exercise of its powers over the organization of its political subdivisions, is free to prescribe the procedures governing annexation of territory to municipalities, and may provide for annexation without any election whatsoever, ”

They contend, however, that having provided for an election, the state cannot improperly restrict the right to vote in such election to a limited class of voters, absent a compelling state interest which plaintiffs assert does not exist.

For its part, the Agency contends that geographic limits on the franchise are permissible if the limits have a reasonable relationship to the interests of persons affected by the election results, citing Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 and Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292. The Agency thus argues that limiting the vote to residents in the area to be annexed the persons most affected by the results of the election is a valid restriction in harmony with the Fourteenth Amendment to the United States Constitution.

In Curtis v. Board of Supervisors, supra, the court dealt with Government Code section 34311, which provided that in the case of a proposed incorporation a protest by owners of 51% of the assessed value of land in the area would block incorporation and prevent an election on the issue.

Since voting rights were involved the court subjected the statute in question to “strict scrutiny” and found a violation of the Fourteenth Amendment in that there was no compelling state interest in allocating power on the basis of assessed valuation and that allocating voting power on the basis of land without reference to improvements has no rational relationship to any state interest.

The “strict scrutiny” test places the burden on the state to establish the existence of a compelling state interest and to establish that the classification created by the statute is necessary to further that interest. (Westbrook v. Mihaly, 2 Cal.3d 765, 87 Cal.Rptr. 839, 471 P.2d 487, cited with approval in Curtis v. Board of Supervisors, supra.)

In Levinsohn v. City of San Rafael, 40 Cal.App.3d 656, 115 Cal.Rptr. 309, the Court of Appeal for the First District applied the rationale of Curtis to then Government Code section 35121, and found the statute unconstitutional for the reason that it gave non-resident land owners the power to block annexation in the same manner that they could block incorporation prior to the holding in Curtis.

“Incorporation and annexation are two different procedures to attain the same goal. The resulting benefits in such public services as police and fire protection, maintenance of streets and the development of parks, as well as the detriment resulting from the imposition of the taxes, are identical.” (Levinsohn, at 656, 115 Cal.Rptr. 309.)

Ironically, plaintiffs here rely heavily on Curtis and Levinsohn when, in our opinion, those cases argue against plaintiffs' position. We feel that the posture of plaintiffs here is analogous to that of the non-resident land owners in Curtis and Levinsohn. While unquestionably the residents of an annexing city have an interest in and are, to a degree, affected by an annexation, (the same could be said for the non-resident land owners in Curtis and Levinsohn) the interest of and effect on the residents of the territory to be annexed is infinitely greater and more direct.

There are constituencies other than those represented by plaintiffs, who could be said to have an interest in the matter similar to that of plaintiffs. For example, the remaining unincorporated county area will be reduced in size and population with the resultant effect on taxes and other considerations. Moreover other contiguous incorporated cities might also, for various reasons, desire to annex the area. (There are three other incorporated cities contiguous to Eastview.) To include in the election process all other constituencies with the same type of indirect interest in the annexation, would make it unwieldy and expensive.

In an election to approve annexation, the residents of the area proposed to be annexed are determining not just the question of future public services, they are determining their future form of government. For the residents of the annexing city, the form of government remains unchanged. The constituency is simply enlarged.

To be sure, it is conceivable that a proposed annexation may be of such a size that its impact on the citizens of the annexing city will be substantial and direct and result in an actual change in the character of the community and nature of the local government. Such an eventuality is addressed by Government Code section 35231. The “50% increase” condition strikes us as a reasonable solution. In an unincorporated area of a size equal to or greater than 50% of a contiguous city, incorporation is a viable option, while in a smaller area it probably is not.

What then is the compelling governmental interest served by the above described limitations and conditions? The goal of efficiently providing public services through a cohesive and logically structured local government is at the heart of the annexation process.

As communities grow, development usually radiates out from the hub and new neighborhoods arise in areas contiguous to existing improved areas. Annexation contemplates the absorption of those areas into the existing governmental organization. There is a compelling state interest in assuring that the residents of these areas, which lie outside of but contiguous to existing municipal boundaries, have the right of self-determination.

Where the population of the area to be annexed is less than one-half that of the annexing city, the balance of power rests heavily with the residents of the latter. To include them in the election on the issue of annexation would render the voting power of the smaller area ineffective. Like the non-resident land owners in Curtis, supra, they, as non-residents of the affected area, would hold a veto power over the aspirations of the residents of the area. The result could be the isolation of small inhabited areas.

In our view, Government Code section 35228(b), as modified by Government Code section 35231, serves a compelling state interest and is necessary to achieve that interest. In short, the statute survives “strict scrutiny” in terms of the Fourteenth Amendment.

The order is reversed and the matter is remanded to the trial court with directions to enter an order denying the preliminary injunction.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.