A controversial 225-square-mile annexation of territory in San Mateo County by the Midpeninsula Regional Open Space District has been upheld by the First District Court of Appeal. The court rejected annexation opponents' arguments that the San Mateo County Local Agency Formation Commission's approval of the annexation was flawed.

The Midpeninsula Regional Open Space District covers portions of San Mateo and Santa Clara counties. Since its creation in 1972, the district has acquired more than 50,000 acres that are now protected in about two dozen preserves. The district's territory was centered in the hills between the coast and San Francisco Bay's urban areas. In 1998, however, San Mateo County coastal voters approved an advisory measure concerning district expansion.

The advisory vote commenced a five-year process that involved more than 40 public meetings and, in 2003, certification of an environmental impact report for the 144,000-acre annexation stretching along the coast from Pacifica to the Santa Cruz County line. In April 2004, the Local Agency Formation Commission (LAFCO) approved the annexation.

Under the Cortese-Knox-Hertzberg Act, voters may protest an annexation. If 50% of registered voters file valid written protests, the annexation is terminated. If 25% to 50% protest, there must be an election. If less than 25% protest, the annexation stands. The annexed territory had 16,284 registered voters, so opponents had to convince a little more than 4,000 registered voters to protest to force an election.

Although the San Mateo County Farm Bureau had led the fight against annexation, the organization dropped its opposition when state lawmakers approved a bill — sponsored by the open space district — to preclude the district from exercising eminent domain in the annexed territory. But property rights advocates persisted. They contended the district would create new parks that bring traffic and trespassers to rural areas. They contended the district's activities were incompatible with agriculture, and they worried that the district would both raise taxes and remove land from property tax roles.

The opponents rounded up 5,340 written protests. But the San Mateo County Elections Division determined that only 3,443 protests were valid, less than the 25% required to force an election. The LAFCO then ordered the annexation to become effective.

Multiple lawsuits were filed. In one, opponents challenged the protest verification process. That litigation resulted in a San Mateo County Superior Court judge ordering an addition 64 protests certified, which left opponents still well short of the 25% threshold. A separate lawsuit was filed by Citizens for Responsible Open Space over the LAFCO process. A Superior Court judge ruled LAFCO had improperly excluded another 288 valid protests — which still left opponents about 300 signatures shy of 25% — but otherwise conducted the annexation properly. The court upheld the annexation.

Both sides appealed and a unanimous three-judge panel of the First District, Division Three, ruled entirely for LAFCO.

Citizens argued that the court should invalidate the annexation because LAFCO did not include a statement of reasons for the annexation in a public notice of the protest hearing, relied on ambiguous maps, and improperly delegated statutory responsibilities to the Elections Division.

The court determined the public notice's lack of a statement of reasons was inconsequential. Following the advisory vote, there were many public meetings, newspaper coverage was extensive, and supporters and opponents debated frequently in public. "[A]s the trial court concluded, the overwhelming weight of evidence establishes that the public was aware of the arguments in favor and against the annexation and given a meaningful opportunity to participate in the protest process," Justice Stuart Pollak wrote for the court.

As for maps, opponents said LAFCO used at least three different versions. The court determined a 160-acre parcel that was within the pre-existing boundaries was misidentified, but the error was of no consequence. The court also found that LAFCO staff's reliance on Skyline Boulevard as the eastern boundary in reports and a public notice map, when in fact the annexation boundary was a jagged line near the road, was acceptable. "As LAFCO explains, the map ‘was not intended to be a precisely surveyed guide to the exact limit of that annexation area, but a description of its external boundaries in a manner that would effectively inform the reader,'" Pollak wrote, noting LAFCO's formal resolution contained the precise boundary.

On the issue of verifying protests, the court said LAFCO "appropriately delegated to the governmental division competent to perform the task."

The LAFCO appealed the trial court's decision to re-instate protests that lacked a protester's residence address. This involved about 288 protests. Noting that many voters in the area rely on post office boxes, the trial court allowed the protests. But the First District said no and overturned the lower court on this point.

"[W]hat ultimately determines the right of a registered voter to protest the acquisition is the individual's residence within the affected area," Pollak wrote. "Receipt of mail at a particular post office box does not necessarily establish one's residence."

Moreover, the court noted, "inclusion of the invalidated protests did not increase the number of protests to 25% of the registered voters and would not have affected the outcome of the protest."

The Case:
Citizens for Responsible Open Space v. San Mateo County Local Agency Formation Commission, No. A116825, 08 C.D.O.S. 1401, 2008 DJDAR 1708. Filed January 31, 2008.
The Lawyers:
For Citizens: Ronald Zumbrun, (916) 486-5900.
For LAFCO: Carol Woodward, San Mateo County counsel's office, (650) 363-4250.
For the Midpeninsula Regional Open Space District: Ellison Folk, Shute, Mihaly & Weinberger, (415) 552-7272.