LOCAL AGENCY FORMATION COMMISSION (LAFCo) (Fresno County, California) MINUTES REGULAR LAFCo MEETING MARCH 16, 2005 Call to order: Chairman Victor Lopez called the meeting to order at 1:39 p.m. Members Present: Commissioners Trinidad Rodriguez, Susan Anderson, Larry Fortune, Bob Waterston and Victor Lopez. Alternate Commissioner Sandra Neri and Alternate Public Member, Joe Chaidez were also present. Members Absent: None Staff Present: Mike Waiczis, Executive Officer Susan Coberly, LAFCo Counsel Candie Fleming, Clerk to the Commission Samantha Hendricks, Secretary APPROVAL OF MINUTES The Minutes for the February 9, 2005, regular meeting were unanimously approved. COMMENTS FROM THE PUBLIC Barbara Hunt, asked some questions and commented about the City of Fresno s sphere of influence. CONSENT AGENDA There were no items on the consent agenda. PUBLIC HEARINGS Requests for Reconsideration of Resolution RSOI-136 Making Determinations and Conditionally Approving a Revision to the City of Fresno Sphere of Influence RSOI-136. Executive Officer Waiczis reported that the City of Fresno had indicated to staff that they would be interested in considering a continuance of this item to review all information that has surfaced in the past month and return later to better address the issues, however, LAFCo Counsel felt that the 35-day limit on a continuance is mandatory and not advisory because the issue involves the entire community. Executive Officer Waiczis recapped LAFCo s January 12, 2005 hearing and reported that staff had since received four written requests to reconsider the resolution approving the City of Fresno s sphere of influence revision. Mr. Waiczis said that the Commission s approval was based largely on the assertion that the City of Fresno would lose their ability to obtain a water contract with the Bureau of Reclamation if the sphere revision was not approved. 1
Executive Officer Waiczis reported that through staff s analysis and meetings with the Bureau of Reclamation, it was determined that on January 12 th there were some misstated facts that led the Commission to make their decision to approve the sphere revision because of what appeared to be a crisis, and made that decision for the good of the public s health, safety and welfare. Executive Officer Waiczis said that the Commission would have to make some findings in order to either uphold the approval of the January 12 th resolution or look at approving a reconsideration that would lead to an amended or conditioned approval of the SOI. Executive Officer Waiczis recommended two motions that would either warrant reconsideration or not warrant reconsideration. Executive Officer Waiczis reported that there have recently been three major SOI updates for cities that included Clovis, Selma, and Sanger. Mr. Waiczis said the Clovis and Selma SOI updates were done under the old Act that had less stringent requirements, however all three cities had provided the necessary documentation for an update. Mr. Waiczis said the City of Fresno had been asked to provide similar documentation, but in many cases were unable to because of the need to expedite their update due to the water issue. Executive Officer Waiczis suggested that if the Commission did decide to reconsider their January 12 th decision, the City of Fresno should be required to do a Municipal Service Review and provide all advanced planning documents necessary for which to make a decision. Mr. Waiczis also suggested that if the City wanted to update their SOI based on the 2025 General Plan, additional territory should be included. Executive Officer Waiczis recommended that the Commission consider reconsideration based on the written requests. The Commission asked LAFCo Counsel to clarify the law concerning reconsideration. Commissioner Fortune said he was uncomfortable with the fact that LAFCo Counsel wrote the resolution which is being challenged, wrote the letters challenging the resolution and then gave advice on how to handle those letters. Mr. Fortune said maybe LAFCo should get some outside advice on how the request for reconsideration should be handled. Commissioner Anderson said is was proper for County Counsel, acting as LAFCo s attorney, to do what she did. Commissioner Waterston said he didn t want to continue the item and drag it on for another 35 days. Commissioner Fortune said he had been under the impression that if the Commission voted to reconsider their resolution of approval, the City of Fresno would then be allowed to return to the Commission with their sphere revision request, but that it now appeared that voting for the reconsideration was tantamount to killing their request for an SOI revision. Commissioner Anderson said she wouldn t object to giving the City of Fresno more time but felt that there was no evidence in the EIR to make the required findings by law to support the revision. She said everybody got caught up in the water issue. Commissioner Anderson said 2
that normal procedures were not followed because everyone was convinced that there was a crisis, that did not exist, and that it is the Commission s responsibility to get back on track by making sure there was integrity in the process. Commissioner Fortune said he agreed but thought if the Commission voted to reconsider their decision, the Commission would have an opportunity to hear what the City of Fresno had to say. Alternate Commissioner Neri said she filled in for Commissioner Lopez at the January hearing and brought up a lot of issues to the City of Fresno and found out after doing some checking afterwards that some of there statements were not entirely true. She said she called Executive Officer Waiczis to ask him what she needed to do to have the sphere revision reconsidered by the Commission and was told that some requests had already been filed by other Commissioners. Alternate Commissioner Neri said she felt the Commission should not allow the City of Fresno s revision, but allow them to come back later with all of the correct information. Alternate Commissioner Neri said that the City of Sanger just updated their sphere of influence and was required to provide LAFCo with all of the required documents. Andy Souza, Fresno City Manager, said that because it was pretty apparent that the Commission was not comfortable sustaining its previous decision, he said the City wanted to withdraw their application. Mr. Souza said that the revision was too important to the City s General Plan and plan for making the downtown work. He said that in fairness to the Commission and the City, they wanted to present a case that would rise to the level the Commission thinks is appropriate. Mr. Souza withdrew the City s application for the sphere of influence revision. Commissioner Anderson told Mr. Souza how much she appreciated what she thought was a very noble reaction by the City of Fresno. Ms. Anderson said that both the City and LAFCo made mistakes. Barbara Hunt, a private citizen, felt LAFCo was not protecting agricultural land and illegally expanded the City of Fresno s sphere of influence in 1984. Harley Turner, a private citizen, said the Executive Officer was pressured by the City of Fresno to accept an application for a sphere revision without the usual documents and the application was incomplete, Susan Coberly said the Commission had to make a determination that there are new facts even though the City of Fresno withdrew its application. Commissioner Rodriguez asked if there was already a resolution approving the revision, would it be proper to disapprove the existing resolution. Susan Coberly said the Commission needed to open the reconsideration and direct staff to come back with the resolution making determinations which would reflect that the City of Fresno withdrew its application, and on that that basis, denied the previous resolution. Commissioner Anderson made a motion to approve the request submitted by herself and Bob Waterston for reconsideration and accept the City Manager s verbal statement that the City intended to withdraw its application and directed staff to bring back to the next regular LAFCo hearing the necessary documents to finalize the resolution. 3
The motion was seconded and approved. Frankwood-Olson Reorganization Annexation No. 2004-2 Executive Officer Waiczis, said the Director of Development for the City of Reedley had just provided him with necessary original signatures from all agencies and the item would no longer need to be scheduled for a protest hearing since all property owners and agencies have consented to the annexation. Fred Brusuelas, Community Director for the City of Reedley asked for the Commission s favorable consideration. The item was unanimously approved with conditions as recommended by staff. South Avenue Reorganization Annexation No. 2004-3 Executive Officer Waiczis gave his report. Fred Brusuelas asked for the Commission s favorable consideration. The item was unanimously approved with conditions and directed staff to set a protest hearing. Church Avenue Reorganization Annexation No. 2004-4 Executive Officer Waiczis gave his report and said all necessary consent forms were given to him at the beginning of the hearing. Mr. Waiczis changed his recommendation to approve the proposal and waive the protest procedures. Fred Brusuelas said the City agreed with the conditions and asked for a favorable consideration. The Commission unanimously approved the proposal. Fred Brusuelas said he accepted a position with the City of Visalia and this would be his last presentation as representative for the City of Reedley and thanked the Commission. Fiscal Year 2005-2006 Preliminary LAFCo Budget Executive Officer Waiczis gave a status report on the current budget and reported that the 2005-2006 budget would need to be increased due to costs associated with increases in application activity and upgrading LAFCo s office space. Commissioner Waterston said that Executive Officer Waiczis needed to fill the vacant position. Commissioner Anderson said that she felt the Commission should look at obtaining private counsel because of the perception that somehow the County is controlling what is happening and was creating some problems for the County. 4
Executive Officer Waiczis said this issue had been brought up in the past and at that time it was decided to let the issue float for a time. Mr. Waiczis said he could bring back some proposals at the next hearing. Commissioner Fortune made a motion to set April 13 th as the hearing date for the Commission s consideration for the proposed budget and to direct staff to provide a proposed budget that would include the cost of private counsel. There was a consensus to the motion. Protest Hearing Newman-Boyd Reorganization, Phase B Executive Officer Waiczis gave staff s report and summarized the resolution of determination. Joe Boyd, property owner, asked the Commission to approve the reorganization. Executive Officer Waiczis said that since there were no protests, the Commission s original resolution would stand. Bretz Mountain Village Annexation Executive Officer Waiczis said that the County had already approved entitlements for tract maps in this area and were about to go to the Board of Supervisors for final approval when it was realized that one of the conditions of approval was that the area needed to be annexed to County Service Area No. 31 first. Mr. Waiczis said the reason for the annexation to CSA No. 31 is so that water would be provided to the area. He said one of the reasons this item was continued from the last meeting was because staff was not satisfied that all the information about water related to this item was made available. Mr. Waiczis said that the Board of Supervisors and Planning Commission approved tract maps based on the condition that water will be provided by the County Service Area. Executive Officer Waiczis said staff did receive letters between the County and State Health Department and the State was satisfied that the County could provide proof that water could be served and would not object to this development. Mr. Waiczis said that approving this proposal would really be a recommendation to the Board of Supervisors and would then allow the Board to make the final consideration on whether or not this area can be annexed in to CSA No. 31. Commissioner Waterston said that a document dated 1981 said that water was available to serve approximately 135 dwelling units and should not exceed that number and also left the water supply to chance and said Sierra Cedars had no other possible source for new well drilling activity. Mr. Waterston asked how that report relates to the current proposal. Executive Officer Waiczis said more recent correspondence from the Health Department saying that if a developer can prove that the County can provide water, then the State would not object. Commissioner Waterston asked if that has been proven. Executive Officer Waiczis responded that it has not been proven yet but the County Board of Supervisors would make the final decision to allow the development or not. 5
Commissioner Anderson asked, Shouldn t the LAFCo Board take responsibility too by approving the application conditioned on proof of an adequate water supply? Executive Officer Waiczis responded that a condition similar to the one for Sierra Cedars that said the applicant would have to provide verification, i.e. a letter from the State Health Department or another source saying that water was available. Dirk Poeschel, representing applicants James Bratton and San Jacinto Equities, responded to Commissioner Waterston s questions about the correspondence written in 1981. He said he felt those letters had to do with conversations with Sierra Cedars Mutual Water District joining the County Service Area. He said Sierra Cedars did not want to join the CSA. Mr. Poeschel said the County offered them the opportunity to join the CSA because they felt there were substantial advantages in being involved with the CSA. Commissioner Waterston asked who wrote the Environmental Impact Report. Dirk Poeschel responded that the County wrote the EIR but what Mr. Waterston was probably referring to was a response to the DEIR. Mr. Poeschel said much has changed since 1981. He said the County is very much involved in making sure that there is adequate water for these projects. He said that Mr. Bratton has been involved with the County Health Department and Resources staff and believes that supplemental water could be brought in to help with systemwide deficiencies but could not occur unless the proposal area is within the County Service Area. Commissioner Anderson asked what would be a reasonable way for the applicant to prove that there was adequate water supply. Executive Officer Waiczis responded that verification from the County Resources Division that there was water would be adequate proof. The Commission unanimously approved the proposal with conditions. Sphere of Influence (SOI) Revision and CSA No. 34 Annexation No. 4 for County Service Area No. 34 Executive Officer Waiczis gave his report. Mr. Waiczis said there is no verification that water can be served in the area but in order to find out the territory would need to be included in the CSA. Commissioner Waterston said that even if the Commission approved the proposal it is all predicated on the water problem and that the Federal and State governments would ultimately say whether the annexation could occur. Bruce O Neal, representing the Clarksfield Company and Ben Ewell, concurred with staff s recommendation and Commissioner Waterston s comment that this is a procedural step required by the Millerton Specific Plan. He said the Bureau is petitioning the State to include properties within the place of use. Mr. O Neal said once that is resolved properties must be within CSA No. 34 to be served. The proposal was unanimously approved by the Commission. 6
Westlands Water District Sphere of Influence Amendment and Broadview Water District Annexation Executive Officer Waiczis gave staff s report. Orval McKinnis, Resource Analyst for Westlands Water District, said they didn t know there were Federal lands that were unaccounted for and would be unable to speak to that. Executive Officer Waiczis asked if Westlands had acquired all the property in the area. Mr. McKinnis said they do own all of the land and to the best of their knowledge there were no other properties unaccounted for. Susan Coberly said the item could be continued to the next hearing to allow staff to provide the information. Mr. McKinnis said that if the properties they just purchased are not annexed expediently, Westlands Water District would then be assessed property taxes on the properties and would therefore like to have a resolution today. The Commission decided to move ahead on the agenda and table this item to give Mr. McKinnis the opportunity to review the Assessor s report and reconvene later at this meeting. Information and Recommendations Regarding LAFCo Policies for the Selection of the LAFCo Public Member and Alternate Public Member. Commissioner Waterston asked what the term was for the Board of Supervisor members and what the term was for the Public Member. Susan Coberly responded that the terms by law were four-year terms but the Commission has limited the Public Member to two terms. Commissioner Waterston asked what would happen if the terms were only for one year. Commissioner Fortune said serving on the Commission was not a simple job and only serving a one year term would not do the public any favors. Commissioner Anderson said the term is four years by State law and the Commission could only change the number of four-year terms or remove the limitation of terms. The Commission could allow the Public Member to reapply and be reappointed. Joe Chaidez, Alternate Public Member suggested having four consecutive one-year terms where the voting member would have to reapply after their first year and limit them to four years. Commissioner Anderson said that would violate State law. Commissioner Fortune said that in memorable history, the Public Member has never received three votes and that s why they used to draw straws. 7
Commissioner Anderson asked what would happen if Larry Fortune resigned. Susan Coberly said then Mr. Chaidez would serve until a replacement was selected. Commissioner Rodriguez said that if the Commission was agreeable to keep Larry Fortune, then all they would need to do is change their policy. Susan Coberly said that LAFCo s up and down the State have deadlocked on this issue. Executive Officer Waiczis suggested the Commission could direct staff to prepare an amendment to the LAFCo policies and bring back to the April 13 th hearing for adoption. He said the policy could be written so that the public member joins the pool with everybody else. Commissioner Lopez said there could be two choices, reappoint the Public Member or appoint the Alternate Public Member. The Commission directed staff to come back with wording to amend LAFCo s policy to remove the two term limit. Westlands Water District Sphere of Influence Amendment and Broadview Water District Annexation (Continued) Orval McKinnis, Westlands Water District, reported that the territory belonging to the Federal Government appeared to be the right-of-way easements originally given to the Government to construct the delivery canals. He said they suspected that the right-of-way easements would transfer to Westlands when the water contracts are reassigned from Broadview to Westlands. Commissioner Anderson asked if they could approve it conditioned on staff confirming that they are right-away easements. Executive Officer Waiczis said that if it is confirmed before the 30-day reconsideration period was up it would not have to go to a protest hearing The Commission unanimously approved the Broadview Water District Annexation with the condition that the territory in question is part of the right-of-way easement and will be transferred to the Westlands Water District at the time the water contracts are reassigned. Administrative Report Executive Officer Waiczis reported on how LAFCo processes applications on the agenda. Mr. Waiczis said LAFCo historically has tried to process 100% consent applications within 30 days and applications that need a 21-day notice, within 50 days. Mr. Waiczis said because of the volume of applications, the necessity to rely on obtaining information from County departments that are also short-handed, and a greater amount of information necessary to meet State law he suggested that LAFCo could eliminate the 30-day and 50-day cut-off periods because those cutoffs force staff to operate in advance of getting the necessary information. 8
Executive Officer Waiczis reported that staff would require all of the information be submitted before a Certificate of Filing could be issued. Mr. Waiczis said staff planned to do an outreach program that would include a workshop on how the annexation process works for all 15 cities, interested districts and interested parties. Commissioner Fortune introduced his daughter, Katherine Fortune. COMMENTS FROM THE PUBLIC There were no comments from the public and the meeting was adjourned at 4:00 p.m. The Meeting was adjourned at 4:00 p.m. Michael R. Waicizis \\pacific\4370\lafco WORKING FILES\MARCH 16, 2005\Minutes-March 16, 2005.doc 9