Annexation

May 26, 2020June 1, 2020

MISDEEDS IN OUR LEGISLATURE

In August 2017 Raul Madrid, a developer who wishes to develop 13 lots he owns in Mentone, submitted to California Senator Mike Morrell a proposed bill containing two amendments to existing laws. One, concerning Government Code section 56133, prohibited cities from forcing annexation in exchange for water or other utilities; it would codify California Supreme Court case law already existing in 1996 [Ed.’s note: the year that Redlands enacted its ordinance that later became “Measure U,” a part of Redlands’ municipal law; it uses that “law” to “justify” demanding annexation to its city limits in exchange for water and, where available, sewer services].

The other proposed amendment concerned the reasonableness of “development impact fees,” concerning another Government Code section.

Madrid had worked with COMET’s counsel to prepare both amendments and is long-time friends with Senator Morrell.

In 2018 Morrell assigned the proposed amendments to an aide, Tess Scherkenback, who forwarded them to legislative counsel for review; that counsel added some language to the annexation portion and sent it back to Morrell’s office for submission to the Finance and Governance Committee, as SB 646. The Committee would review it before giving it to the entire Senate for approval.

Scherkenback communicated part of the legislative process to Madrid but failed to advise him that he and/or COMET’s counsel could appear before the Committee, to explain Mentone’s plight and why the bill was important to it and other similarly-situated unincorporated areas. [Ed.’s note: Some years ago, the Legislature excluded by law the shopping area around the intersection of Lugonia and Alabama Avenues from Redlands’ city limits.] No history or other information was submitted with the bill or solicited by Scherkenback.

In February 2019 Scherkenback e-mailed the entire bill to Madrid, as modified and approved by legislative counsel and then in purportedly the final form, the day before she was to submit it to the Finance and Governance Committee. However, Madrid only recently learned that the bill was actually missing the prohibition-of-demanded-annexation portion when she sent it to the Committee so the Committee never received it or voted on it.

In March 2019 Scherkenback told Madrid that Senator Mike McGuire, the chairman of the Senate Finance and Governance Committee, “didn’t like” the annexation portion of the bill. However, an aide in Senator Mike McGuire’s office recently confirmed that the annexation portion of SB 646 was removed before it was submitted to the Finance and Governance Committee, which would have reviewed, and possibly submitted, the bill to the full Legislature and the Governor.

Scherkenback also stated that CALAFCO was not in favor of the annexation portion, and that CALAFCO’s director had said the bill “would die in committee.” [Ed.’s note: CALAFCO is the 501c3 advisory, only, organization to which all county LAFCOs belong. LAFCO stands for “Local Area Formation COmmission”; it was set up by the Legislature in the 1960s to oversee property developments in all California counties, since cities oversee those projects within their city limits. The San Bernardino County LAFCO replaced the former Boundary Commission. According to the IRS’ website CALAFCO, as a tax-exempt 501c3 organization, is restricted in lobbying against proposed legislation and COMET’s counsel recalled that one of LAFCO’s agendas in the past had voiced its opinion in favor of annexation.] It is not yet clear what connection CALAFCO or its director, Pamela Miller, has with Redlands, said COMET’s counsel, or why Mentone’s protection would adversely impact LAFCO’s duties: LAFCO inquires about annexation but does not require it, for any purpose. COMET’s counsel added that CALAFCO, based in Sacramento, has ignored COMET’s service of the lawsuit.

In July of that year, a deputy legislative counsel wrote an opinion letter, which Scherkenback provided to Madrid; the opinion stated why, in the author’s opinion, forced annexation was proper. That letter, of course, contradicted the earlier, other legislative counsel’s opinion. Moreover, the later opinion did not address existing case law , nor an exception contained in Government Code Section 56133(e)(4), which states that, if the water customers were receiving water before January 1, 2001, section 56133 (a)’s mention of the “anticipation of a later change of annexation,” does not apply. [Ed.’s note: That exception was probably added because, beginning in 1915 the Supreme Court had repeatedly held that a city purchasing a water company must continue to provide water service to existing and new customers; there is no mention of a requirement of annexation.] However, adds COMET’s counsel, Redlands ignores that exception and the supporting case law – in Mentone’s favor, of course – and instead cites a lower case holding which appears to attempt to overturn the Supreme Court, which courts are not entitled to do. It is possible that – since earlier legislative counsel had approved the proposed amendment – Scherkenback may have requested the opinion so as to support her omission of the prohibition of forced annexation from the submitted SB 646.

It is not yet known how much territory Mentone has lost in the past 1 1/2 years due to CALAFCO’s interference and Scherkenback’s action. Since bills must be submitted to the Committee by late February each year, Madrid learned of this information too late to resubmit the proposed annexation prohibition for this year’s consideration by the Committee and the entire Legislature.

It is not clear whether Morrell knew of Scherkenback’s omission of the annexation portion of SB 646 until it came up for the Committee vote. Morrell told Madrid he is “terming out” this year, and presently does not know whether he will seek another legislative office in November.

Scherkenback, whose Linked-In page states she graduated summa cum laude from a private evangelical university and received various honors and awards, was awarded a fellowship in Morrell’s office, which position she held for a year and two months. Madrid said Morrell told him she is no longer working there; that is confirmed by Linked-In, which says she is a legislative aide in Sacramento, but not for whom.

The remainder of Senate Bill 646, concerning only the reasonableness of “development impact fees,” passed the Committee easily in May 2019 and was signed into law by the Governor. It clarifies another, similar law.

March 13, 2020July 21, 2020

COURT OF APPEAL DENIES WRIT PETITION; PETITION FOR REVIEW FILED

On February 26 the court denied COMET’s Petition for Writ of Mandate, which sought an Order to the Superior Court to reverse its denial of COMET’s request for leave from filing a late claim for damages. The Appellate Court did not specify its reasons for denying the Writ Petition (Ed.,’s note: that process is called a “summary denial”). According to lawyers’ blogs online, the court summarily denies most writ petitions.

COMET’s Writ Petition was based on the grounds that Mentonites did not know of Redlands’ annexations of their territory until long after they were concluded and therefore Mentonites could not have filed their protests or claims for damages within the 60-day time limitation; that when they learned of the completed annexations they did not know what to do about them except protest, which did not stop the annexations, until advised to file suit; and then could not find an attorney to take the case for what they could afford, until late 2018. The lawsuit was filed in Spring 2019.

On March 6 COMET’s pro bono (Ed.’s note: donating their professional time) counsel filed COMET’s Petition for Review with the California Supreme Court, requesting that the high court order the Fourth District Court of Appeals to consider the Writ Petition on its merits or on the grounds stated in it. One ground in the Petition for Review is that the 1997 Measure U, which Redlands utilizes to demand annexation in exchange for water and sewer service (where available) – after decades of allowing hookups for just a minimal cost for connection – was unauthorized by existing state Supreme Court law at the time: in 1915 and again in 1986, the high court held that a city purchasing a private water company was required to continue providing water to the customers, including any new customers who moved into the area. The Supreme Court cases were mentioned in a case decision supplied by Redlands’ and LAFCO’s counsel. A San Bernardino-based case also prohibited discrimination in the provision of water.

Another ground in the Petition for Review quoted a 1982 case which held that rules for LAFCO (Ed.’s note: Local Area Formation COmmission, which the Legislature set up to exist in every California county) did not allow a receiving city to vote on annexation, that the voting right belongs solely to the territory being annexed. The Petition for Review also raised constitutional issues with Measure U and reiterated its position that Measure U is extortionate (Ed.’s note: in other words, demanding something that it is not entitled to have).

The high court can either: grant the Petition and review the case itself; grant review and order the Appellate Court to reconsider its denial; or deny the Petition for Review, with or without comment. There is no time limit to do so.

The Superior Court also denied COMET’s earlier Motion for an Injunction against Redlands’ enforcement of Measure U; however, that Motion did not contain the law given in the Petition for Review, which was recently discovered by COMET’s counsel.

COMET stands for Community of Mentone Empowered Together and represents all Mentone residents and landowners who wish to be involved : of the respondents to a recent poll conducted by MM, almost all were against annexation. MM will report on developments as early as possible after they occur.

January 29, 2020March 28, 2020

UPDATE ON MENTONE VS. REDLANDS:

Counsel for C.O.M.E.T. (Community of Mentone Empowered Together) filed a Motion for six injunctions against future conduct before Superior Court Judge, the Honorable Donald Alvarez, in July; Redlands’ and LAFCO’s counsel opposed the Motion, on the basis that C.O.M.E.T. should have filed a “reverse validation” action challenging completed projects. Several weeks after the hearing on the Motion, Judge Alvarez, who ruled in Greenspot’s favor on the “Harmony” Project, denied it. C.O.M.E.T.’s counsel then filed a Petition for Writ of Mandate with the Fourth District, seeking an order of that Court that Judge Alvarez change his decision to comply with the law C.O.M.E.T. had provided.
The Injunctions sought Court orders that “1) Redlands cease demanding annexation of a new development to Redlands City Limits in exchange for water or sewer service, so as to take Mentone territory to itself, whether via its annexation “Agreements” or any other methods; 2) Redlands cease enforcement of all provisions of executed said annexation or “pre-annexation” “Agreements”; 3) Redlands cease requiring payment of “Development Impact Fees” (“DIFs”) for services it does not provide, such as fire, police, library, parks and others; 4) Redlands cease requiring payment of “Development Impact Fees” that exceed the reasonable cost of providing the services it does provide, which violates its own adopted professional development fee impact studies, in order to receive water and sewer service; 5) LAFCO cease its violation of Government Code §56133(e)(4); and 6) prohibited any lobbying or other interference by Redlands, LAFCO or any other party against passage of proposed legislation that would prohibit Redlands from demanding said forced annexation from Mentone.”  Early in 2019, Senator Mike Morrell had introduced a bill prohibiting governmental entities from demand No. 1 above, but it “died in committee.” LAFCO is alleged wrongfully to have approved Redlands’ alleged extortionate annexations.
Meanwhile, C.O.M.E.T.’s counsel had also filed a Motion for Relief from Government Code section 945.6.  The Motion for Relief requested that the Court allow late claims against Redlands for its annexations of Mentone territory, of which Mentone did not know until much later, and alleged compliance with a three-year statute of limitations, imposed for fraudulent transactions.  Redlands’ and LAFCO’s counsel opposed, and C.O.M.E.T.’s counsel filed a reply. Several weeks after the hearing Judge Alvarez denied that, as well.
C.O.M.E.T.’s counsel then filed a Petition for Writ of Mandate to the Fourth District Court of Appeal on Monday, January 27. The Writ Petition alleges that LAFCO’s rules, set down by the Legislature, prohibit a City from voting on annexation because the rules only provide for voting by the “affected territory,” i.e., an unincorporated area such as Mentone. This was held in the Supreme Court’s case of “Citizens Against Forced Annexation v. LOCAL AG. FORM., 32 Cal. 3d 816, 187 Cal. Rptr, 654 P. 2d 193 (Cal Supreme Court, 1982),” in which the situation was the reverse of Mentone’s: Eastview wanted to be annexed to Rancho Palos Verdes, which didn’t want the annexed territory but the Court held that it had no vote against annexation. Thus, the Petition states, Measure U, under which Redlands has demanded annexation for more than 19 years, was void from the beginning.
Moreover, the Petition states, the Supreme Court case of “Hansen v. City of San Buenaventura (1986) 42 Cal.3d 1172, 1188-1189, 233 Cal. Rptr. 22, 729 P.2d 186 [held] that a city acquiring the water system of another community was under the same obligation as the grantor to continue the service and supply water to all who may become entitled to it in the future.” Redlands’ and LAFCO’s Opposition argued that a First District case gave Redlands the right to demand annexation in exchange for water [Ed.’s note: Supreme Court law “trumps” a State’s District Court so it can’t be overturned, as Redlands seemed to be arguing and Judge Alvarez’s decision adopted].
The Fourth District’s reputation is that Writ Petitions are often denied summarily (without explanation); if they are not, the other parties have an opportunity to respond and then the Petitioner has another opportunity to argue their case. The decision may or may not be published, depending on the effect on established case law on the subject. If the Petitioner or Respondent is unsatisfied with the decision, they may appeal to the Supreme Court, which doesn’t take every case referred to it for review but often does if it involves conflicts in law between two or more District Court decisions. In the C.O.M.E.T. vs. Redlands case, there may be a conflict between the Supreme Court cases that C.O.M.E.T. relied on and the case Redlands’ and LAFCO’s counsel argued.
A Motion is a written document, filed and scheduled for hearing; oral argument is made at the hearing by the attorneys involved. A Petition for Writ of Mandate can be made to the Superior Court or the Fourth District Court of Appeals, who receives the case after it has been heard in the Superior Court, or it can be made to the Superior Court in the first place. There are strict deadlines for filing lawsuits, motions and writ petitions but the only deadline for the Superior Court Judges is 90 days for a motion. MM

January 21, 2020June 24, 2020

MACA news

Rachel Chilly, Sheriff’s Department spokesperson: In December there were 12 arrests: 3 good felonies. On December 30, there was a incident on the Boulevard at Chrysolite; a “man with a gun” = high priority for the Sheriff’s Department. There were several different versions, however. someone shot into the air but no one was hit, apparently [Ed.’s note: what goes up can come down and people have been shot a long ways away by gunshots up in the air]. Someone reported a suspicious person sitting in a car near a school, however, it turned out they were there legitimately. Audience members asked about mail theft: the Department says the problem is more prevalent during the holidays and tax season. By 9 p.m., it is suggested, make sure your mailbox is emptied, lock gates, lock your cars, turn on lights, put everything away. The U.S.P.S. has a program, called Informed Delivery, where they will e-mail you what they get for you. If you see someone stealing mail, take down the license number, get the make and model, a description of the vehicle they are driving and call the Sheriff. The Feds will prosecute large, documented cases, she said. Early in the month people are stealing money to buy drugs; at the end of the month they are seeking to replace their benefits, which have run out. Audience members also talked about people driving while on their phones; the Sheriff will ask for more CHP enforcement. MACA will apply to have the Second Annual Film Festival like the one last Fall. Adopt a highway is the First Saturday of February, meeting 7:00-7:30 at the Chamber office/Noteworthy Realty, on the Boulevard. Lloyd White, a Beaumont City Council member and Republican, is running for Senator Morrell’s seat, which he is losing because of term limits. As for the “pot shop” on the Boulevard, it alleges a religious base so the Department is still working on it. Counsel for COMET (Community of Mentone Empowered Together”) spoke for a few minutes, bringing everyone up to speed as to the progress of the case against Redlands for forcing annexation in exchange for water and – where available – sewer services to new developments. Counsel had filed a Motion for Injunction, which she explained is a document that is filed, opposed in writing and then a reply brief, then a hearing by Judge Donald Alvarez, the same judge who decided on the “Harmony Project” across the River. The Motion sought several injunctions – orders prohibiting Redlands from demanding the annexations, enforcing the annexation agreements already signed, and several others. The judge issued his decision later, denying the requested injunctions, which COMET’s counsel briefed to the Court of Appeal. The Court denied COMET’s request to waive fees. COMET’s counsel had also filed a Motion for Relief from the late filing of claims for damages to Redlands. Defendants Redlands and LAFCO (Local Area Formation Commission) opposed and COMET replied. The Judge also denied that Motion.

April 19, 2019June 24, 2020

Proposed Legislation to Protect Mentone – Update 2

Developer Raul Madrid tells Mentone Matters that the chair of the Governance and Finance Committee, Mike McGuire, “doesn’t like” our proposed amendment to SB 646, 56133(b)(2), which would protect Mentone from forced-annexations to the City of Redlands, so we have to do what we can to change his mind and influence the other Senators in our favor. We have a deadline of May 1, 2019 because, according to Madrid’s contact at Sen. Morrell’s office, the bill is going back to Committee then.

Mentone Matters urges its readers to download the attached sample letters, print or copy/paste them into a document, an email or use Senate Committee Members’ “Contact Me” forms, as provided in the last update, and mail or email the letter to the Committee members before the May 1 deadline. Be sure to include your name and address in the letter before sending it. Thank you.

SB 646 Draft Support Letter Download

Mentone Resident SB 646 Download

Mentone Property Owner SB 646 Download

April 16, 2019June 24, 2020

Updated Information on Proposed Legislation to Protect and Benefit Mentone

Developer Raul Madrid, who submitted the proposed legislative amendments that State Senator Mike Morrell introduced as SB 646 – one amendment that prohibits forced annexation in exchange for water and another that governs fees the City may charge, the latter of which was passed through Committee – contacted Senator John Moorlach’s office in regard to the previously-believed-dead amendment to Government Code Section 66013(b), added as (b)(2). Sen. Moorlach is a member of the Governance and Finance Committee which is considering SB 646 before it is forwarded to the entire Senate for passage.

Sen. Moorlach’s staff stated that 66013(b)(2) is not dead but is in limbo; it will be sent back to Legislative Counsel and then returned to the Governance and Finance Committee from which, if all goes well, it should go to the entire Senate. [Ed.’s note: Now MM knows why all of Section 56133 was crossed out as posted previously on MentoneMatters.org: so the amendment to section 66013(b) would be the only one enacted at that time.]

Various Redlands and LAFCO personnel have stated their belief that Mentone will be in Redlands someday. Now is a good opportunity for everyone in Mentone to contact the Senators on the Committee and ask them to vote in favor of the rest of SB 646.

As previously reported, the Committee members are:

Senator Mike McGuire, available at senator.mcguire@senate.ca.gov.

Senator Melissa Hurtado, available at senator.hurtado@senate.ca.gov.

Senator John M. W. Moorlach, available for contact through his official website, here.

Senator Jim Beall, available for contact through his official website, here.

Senator Jim Nielsen, available for contact through his official website, here.

Senator Scott D. Wiener, available for contact through his official website, here.

Senator Robert M. Hertzberg, available for contact through his official website, here.

Because these Senators are from all over California, be sure to explain why it is so important to us in Mentone. You are welcome to write your own letter or use the following, by either e-mail or snail mail:

“State of California Senatorial Governance and Finance Committee

Senator Mike McGuire

Senator John M. W. Moorlach

Senator Jim Beall

Senator Robert M. Hertzberg

Senator Melissa Hurtado

Senator Jim Nielsen

Senator Scott D. Wiener

State Capitol, Room 408

Sacramento, CA 95814

Re: SB 646

Dear Sirs and Mme:

I reside (or am a property owner) in Mentone, California, an unincorporated territory which has been forcibly taken over by Redlands, piece by piece, for many years. We in Mentone object to the forced annexation, which is required in exchange for water and – where it is available – sewer services to any new developments, and believe it violates the law prohibiting extortion. That is, although we are in Redlands’ sphere of influence, they have no right to demand that we give over governance of our area to Redlands, instead of the County.

We are aware that people from Redlands have been very influential against this bill, solely for their own interests, but that doesn’t make it right that the bill should die in committee. We have very few other resources with which to fight Redlands’ greedy takeover. Please pass this bill through your committee. Thank you.

Very truly yours,

[Your name]”

April 14, 2019June 24, 2020

ANTI-ANNEXATION AMENDMENT KILLED IN COMMITTEE

Text removed from SB 646 would have protected Mentonites from forced annexation.

State Senator Morrell’s SB 646 went to the Senate’s “Governance and Finance Committee” in March. MM’s readers may remember from the previous article that two provisions were involved: Government Code sections 56133(b)(2) and 66001. The Committee had until April 10 to amend the code sections, which it did as to Section 66001, adding that agencies that charge fees for one use are prohibited from using the money for another use. It amended that law on April 11.

However, 56133(b)(2), which stated, “The city or district providing the extended service… shall not deny the extension of a utility service to a property owner located within the extended service area based upon a property owner’s election not to participate in an annexation or preannexation proceeding,” was not passed through Committee and thus is “dead” for all intents and purposes for this year.

This follows what various local residents have been hearing and passing along to MM: that Redlands was certain that the amendment would not pass Committee.

As MM receives more information as to who was behind the killing of Mentone’s protection by the Legislature, it will pass that information along to its readers.