Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Thomas P. Anderle, Judge.
Dennis Marshall, County Counsel, County of Santa Barbara and William M. Dillon, Senior Deputy, for Santa Barbara Local Agency Formation Commission, Defendant and Appellant.
Richard, Watson & Gershon, a Professional Corporation; Steven H. Kaufmann and Ginetta L. Giovinco. C. E. Chip Wullbrandt and Susan M. Basham; Price, Postel & Parma. Frances Farina; De Lay & Laredo, for Goleta Water District, et al., Real Parties in Interest and Appellants.
Ellison Folk; Shute, Mihaly & Weinberger. Marc Chytilo and Ana Citrin, Law Offices of Marc Chytilo, for Gaviota Coast Conservancy and Surfrider Foundationl, Plaintiffs and Respondents.
YEGAN, Acting P.J.
Santa Barbara Local Agency Formation Commission (LAFCO), Goleta Water District (GWD), Makar Properties, L.L.C., and CPH Dos Pueblos Associates, L.L.C. appeal from a judgment invalidating the annexation of 130 acres of undeveloped land into the Goleta Water District. The trial court found that an annexation condition -- written consent by the landowner -- was not satisfied and that a 1998 resolution approving the annexation expired and was abandoned as a matter of law. Respondents, Gaviota Coast Conservancy (GCC) and Surfrider Foundation, were awarded $185,800+ attorney fees. We reverse the judgment and vacate the award for attorney fees. The annexation is valid.
1998 Resolution to Annex 130 Acres
This appeal arises out of a 1998 resolution (Resolution 98-11) by LAFCO approving the annexation of 130 acres into the GWD. The land is part of a 208 acre site on the Gaviota Coast, three miles west of Goleta. Formerly an oil and gas production facility, ARCO sold the property to CPH Dos Pueblos Associates LLC (CPH) to build a golf course with coastal trails (the Golf Links project). Makar Properties L.L.C. (Makar) purchased the property from CPH and is the current owner.
A local agency formation commission is an administrative body created pursuant to the Cortese-Knox Hertzberg Act Local Government Reorganization Act of 2000 (formerly the Cortese-Knox Local Government Reorganization Act of 1985) to approve or disapprove annexation requests. (Gov. Code, §§ 56000, 56375; Citizens For Responsible Open Space v. San Mateo County Local Agency Formation Com. (2008) 159 Cal.App.4th 717, 722.)
In 1993, County of Santa Barbara certified a Final Environment Impact Report (FEIR) for the Golf Links project and approved a conditional use permit. The FEIR stated that GWD would provide potable and reclaimed water to the project.
The conditional use permit was appealed to the California Coastal Commission. Coastal Commission denied the appeal and granted a coastal development permit, subject to the condition that 20+ antiquated lots (the Naples lots) be merged into two large parcels to prevent residential development. The Coastal Commission decision was upheld by the trial court and this Court in an unpublished opinion. (Surfrider Foundation v. California Coastal Commission, B101510.)
In July 1998, ARCO and CPH requested that GWD annex the 130 acres so there would be water for construction. The rest of the project site (78 acres) was already in the water district.
On July 28, 1998, the GWD Board of Directors adopted a resolution to initiate proceedings for annexation and consented to a waiver of conducting authority proceedings. (Former Gov. Code, 56029.) ARCO, CPH, and GWD entered into a Water User Agreement providing that CPH would pay GWD approximately $4.5 million for improvements to deliver reclaimed water to the golf course.
September 2, 1998 LAFCO Hearing
After GWD submitted the annexation application, LAFCO Executive Officer Bob Braitman prepared a staff report for a September 2, 1998 LAFCO hearing. This report stated: "To avoid including potentially buildable parcels within the GWD, the staff proposes that if the annexation is approved, it be conditioned on the concurrent merger of the[] lots. The annexation would, therefore, not be recorded until the merger of lots is also recorded." It also stated: "At the time of this writing not all of the property owners have given written consent to the annexation to [GWD], however such written consent is anticipated in the near future."
On September 2, 1998, Attorney David Fainer, Jr. sent a letter to LAFCO and Braitman stating that his clients, the "project sponsors, " consented to the annexation. Fainer and Whitt Hollis appeared on behalf of ARCO and CPH at the September 2, 1998 hearing and provided testimony expressing landowner support for the annexation.
At the conclusion of the hearing, LAFCO approved the annexation request and adopted Resolution No. 98-11 which stated in pertinent part: "If satisfactory proof is given to the Executive Officer that... all landowners within the affected territory have given their written consent to the proposal..., the conducting authority proceedings are waived, otherwise, the conducting authority [GWD] is authorized to proceed." The annexation was not conditioned on lot merger. (See infra, pp. 10-14.)
When Resolution 98-11 was adopted in 1998, the Cortese-Knox Act of 1985 controlled. (Gov. Code, § 56000 et seq.) To aid the reader, we provide the following definitions:
Project Time Extensions
Under the Cortese-Knox Act of 1985, the annexation was not effective until a certificate of completion was recorded. (Gov. Code, § 57202, subd. (c).) Braitman mistakenly believed that he was not to record the certificate of completion until the 20+ lots were merged and the lot merger was recorded. Based on Braitman's representation that the annexation was subject to a lot merger condition, GWD and CPH requested and were granted time extensions in 1999 and 2001 to address project delays involving permit review by other agencies and the discovery of red-legged frogs (a threatened species) at the project site.
In December 2002, Coastal Commission denied permit approval of the Golf Links project. CPH and its successor in interest, Makar, sued for mandamus relief and inverse condemnation. (CPH Dos Pueblos Associates, LLC, et al. v. California Coastal Commission, Santa Barbara County Sup. Ct., Case No. 01111661.)
In July 2003, GWD requested a third extension to complete the annexation. Braitman wrote back that the LAFCO Chair was not inclined to call a special LAFCO meeting until the Coastal Commission dispute was resolved. Braitman's letter stated: "If the approved reorganization lapses, it is the Chair's preference that it be resubmitted as a new project when the underlying permit issues are resolved."
`2007: Resubmitted Annexation Application
Following Braitman's instructions, GWD resubmitted the annexation application in 2007. The application stated that the Golf Links project was "on hold" because of litigation with the Coastal Commission. Makar [CPH's successor] had an alternative proposal to construct two single family homes on two parcels known as "the ranch lots, " measuring 77.65 and 65.01 acres respectively. GWD opined that Makar could, without amending the Water User Agreement, use the property for agricultural purposes and construct two single family homes and accessory structures incidental to the agricultural use.
In 2005, Makar and Coastal Commission entered into a "Standstill and Settlement Agreement" to stay Makar's lawsuit so that Makar could pursue a residential development proposal for the site. The settlement agreement provides that Makar may terminate the settlement and resume efforts on the Golf Links project if permit applications for the residential development proposal are denied by the County or Coastal Commission.
Surfrider Foundation claimed that the ranch lots proposal was a "new project" under CEQA and required an environmental impact report (EIR). It urged LAFCO not to consider the annexation application until County certified an EIR for the project.
GWD withdrew the application and requested that LAFCO record a certificate of completion based on Resolution 98-11 (Goleta Water District annexation) as adopted. In a June 30, 2008 letter to LAFCO, GWD stated the "District [GWD] and Makar's predecessor [CPH] followed Mr. Braitman's instructions for five years, requesting extensions of time to certify and record the annexation under a law that they discovered in 2003 was not even applicable. Neither the several requests for extension nor Mr. Braitman's refusal to grant another extension in 2003 have any legal significance, since no extension was required in the first place."
LAFCO Directive to Braitman
On August 7, 2008, LAFCO met in closed session, reviewed Resolution 98-11 and all of the evidence, and by unanimous vote approved the filing and recordation of a certificate of completion. The Commission found that "the 1998 [annexation] approval did not expire because LAFCO Resolution 98-11 waived the conducting authority proceedings...." It directed LAFCO Executive Officer Braitman to execute and record the certificate of completion which was done August 11, 2008.
Validation Action
Respondents Surfrider Foundation and Gaviota Coast Conservancy filed a validation action (Gov Code § 56103) and a mandamus petition alleging violation of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) After extensive briefing and argument, the trial court found there was no written landowner consent for the annexation, that conducting authority proceedings were not completed, and that "the annexation approval expired as a matter of law... and must legally be deemed abandoned." The trial court further found that the merger of the 20+ lots was a prerequisite to completion of the annexation and that the lots were never merged. The court declined to rule on the CEQA cause of action because it was mooted by the order invalidating the annexation.
Standard of Review
As a quasi-legislative administrative agency, LAFCO's decision to complete the annexation and record the certificate of completion is reviewed by ordinary mandamus. (Code Civ. Proc., § 1085; San Miguel Consolidated Fire Protection Dist. v. Davis (1994) 25 Cal.App.4th 134, 152.) "In any action or proceeding to review any determination made by a [LAFCO] commission or by a legislative body the sole inquiry shall be whether there was fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the court finds the determination or decision is not supported by substantial evidence in light of the whole record." (Morro Hills Community Services Dist. v. Board of Supervisors (1978) 78 Cal.App.3d 765, 779 [discussing former Gov. Code, § 56006]; Gov. Code, § 56107, subd. (c).) On review, all legitimate inferences are indulged to uphold the decision. We may not reweigh the evidence or substitute our judgment for that of LAFCO on any factual issue.
Waiver of Conducting Authority Proceedings
The heart of this appeal is whether LAFCO waived the conducting authority proceedings. When Resolution 98-11 was adopted, former Government Code section 56837, subdivision (c)(2) provided that conducting authority proceedings could be waived if the territory to be annexed was uninhabited, all landowners "within the affected territory have given their written consent to the change or organization or reorganization[, ]" and the agency gaining territory (i.e., GWD) consented in writing to a waiver of conducting authority proceedings.
Those conditions are set forth in Resolution 98-11 which declares that the affected territory (i.e., the 130 acres) is uninhabited and the annexing agencies have consented to a waiver of conducting authority proceedings.
With respect to landowner consent, Resolution 98-11 provides that conducting authority proceedings are waived "[i]f satisfactory proof is given to the [LAFCO] Executive Officer... that all landowners within the affected territory have given their written consent to the [annexation] proposal...." It does not state how or what form of written consent is to be provided. When LAFCO reviewed the evidence in 2008, it concluded that written landowner consent was timely provided, that conducting authority proceedings were waived, and that Braitman had a duty to record the certificate of completion.
Respondents contend that written landowner consent is lacking because Fainer's September 2, 1998 letter refers to "project sponsors" rather than "property owner." Fainer, however, represented both project sponsors and property owners as the property changed hands from ARCO to CPH, and from CPH to Makar. There are no other landowners.
The September 2, 1998 LAFCO Commission minutes state that Fainer appeared on behalf of the "property owner" to confirm landowner support of the proposed annexation. Whitt Hollis, who represented ARCO and CPH, also appeared and provided testimony expressing support for the annexation.
Exalting form over substance, respondents argue that Fainer's letter is not satisfactory evidence of written landowner consent. That, however, was for LAFCO to decide based on the correspondence, annexation documents, and hearing testimony. As a starting point, it is fair to assume that GWD would not have applied for the annexation unless the landowner (ARCO and its successor CPH) consented to the annexation. Written landowner consent was set forth in the annexation application and questionnaire, the Fainer letter, and at the September 2, 1998 hearing. In August 1998, GWD sent Braitman copies of the GWD resolution to initiate annexation proceedings, the Golf Links FEIR, and a list of property owners and known future owners. The FEIR and FEIR Addendum identified ARCO as the "Project Applicant/Property Owner" and stated that GWD and the project sponsors were entering into a Water User Agreement. Braitman was provided a copy of the Water User Agreement which identified ARCO entities as the property owner and stated that CPH was purchasing the property. The Water User Agreement included an EIR Addendum prepared by GWD identifying the property owners as the Golf Links "Projector sponsors" who were "acquiring final agreements and approvals in order to begin construction in early-1999." Pursuant to the Water User Agreement, CPH paid approximately $4.5 million for capital improvements to extend water service to the property. Viewing the evidence as a whole, it would make no sense for CPH or ARCO to withhold consent to the annexation after their attorney (Fainer) and representative (Whitt) appeared and testified in support of the annexation at the September 2, 1998 LAFCO hearing. Nor would it make sense to withhold annexation consent after CPH paid the $4.5 million to GWD.
September 2, 1998 LAFCO Minutes
The September 2, 1998 LAFCO Commission minutes state that "if written consent is received by all the landowners prior to the time the matter is forwarded to the to the conducting authority [GWD], " that the Commission "waives conducting authority proceedings and directs the staff to complete the reorganization." There is no evidence that the matter was "forwarded" to GWD, the inference being that Braitman was satisfied that written landowner consent had been provided. If landowner consent was lacking, Braitman would have advised GWD to commence conducting authority proceedings and to complete the proceedings within 12 months of the adoption of Resolution 98-11, i.e., by no later than September 1, 1999. (See former Gov. Code §57001.)
July 8, 1999 CPH Letter
In a July 8, 1999 letter, CPH notified GWD that it had closed escrow, that CPH was the landowner, and that CPH consented to the annexation. The letter states: "This letter memorializes the consent of CPH[] as the owner of the entire 130 acres to be annexed when prerequisites to annexation (including completion of the merger of lots following commencement of construction of the golf course) have occurred. We understand that our prior consent allowed the District to avoid conducting any further public hearings as to the annexation."
The trial court read the July 8, 1999 letter to mean that CPH did not consent to annexation. The court found that CPH was consenting "to annexation only after the Naples lots had been merged, something which had not occurred at that time (and in fact has never occurred)."
We construe the letter differently. CPH consented to annexation but, like Braitman and GWD, mistakenly believed the certificate of completion could not be recorded until the lots were merged. The letter states "that our prior consent allowed the District [GWD] to avoid conducting any further public hearings as to the annexation." CPH had already signed the Water User Agreement and paid approximately $4.5 million for water service improvements. Until the annexation was completed, CPH lacked water to proceed with construction. As the property owner and project sponsor, CPH had no reason to impose a new annexation condition, i.e., a lot merger, that would prevent it from moving forward with the project.
This is clarified in CPH's July 14, 1999 letter which states: "We, as well as the prior property owner, have always agreed to carry out a merger of the lots when the golf course is under construction, and prior to certificate of occupancy." (Emphasis added.)
A month after the CPH letter, Fainer and GWD appeared at an August 5, 1999 LAFCO hearing to request the first time extension. The Commission minutes state that Fainer "represented the property owner." The administrative record includes letters from Braitman, CPH, and GWD, none of which state that written landowner consent was a problem, that landowner consent was being withheld, or that conducting authority proceedings had to be completed. GWD's July 22, 1999 letter to Braitman states: "The need for additional time to complete the annexation is due to the length of time it will take other governmental bodies to complete their permitting processes..., all of which is beyond the control of the Goleta Water District."
The fair import of the evidence is that the landowners (ARCO and CPH) consented to annexation and that conducting authority proceedings were waived within 12 months of the adoption of Resolution 98-11. When LAFCO granted the first time extension, the last remaining act was to record the certificate of completion which would establish the effective date of the reorganization. (Gov. Code, § 57202, subd. (c).).
Lot Merger Condition
Respondents argue that the lot merger was a condition for annexation. Resolution 98-1, however, is unambiguous and makes no reference to a lot merger. It states that the "reorganization is hereby approved" and "[a]ll proceedings in connection with this reorganization shall be conducted only in compliance with the approved boundaries set forth in the attachments and any terms and conditions specified in this resolution." If merger of the 20+ lots was an annexation condition, it had to be set forth in the resolution. (See former Gov. Code, § 56851 [conditions must be included in resolution when adopted].)
The trial court concluded that the LAFCO staff reports were extrinsic evidence of a lot merger condition. But the interpretation of a resolution, like the interpretation of a statute, is a question of law. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698-699.) If the resolution is unambiguous and evidences an unmistakable plain meaning, extrinsic evidence is not considered. (City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 409.) Where, as here, " 'the words of the [resolution] are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the [resolution] or from its legislative history.' [Citations.]" (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 698.)
The trial court acknowledged that the resolution does not contain a lot merger condition but did not view that as "necessarily determinative.... It is through LAFCO's own actions in losing the hearing transcript that the terms of the actual motion to approve annexation are not before the court, including the motion's possible inclusion of terms or conditions which were overlooked in the after-the-fact preparation of the formal written resolution." LAFCO argues there is nothing in the administrative record to suggest that a reporter's transcript of the September 2, 1998 LAFCO hearing was prepared or lost.
The September 2, 1998 LAFCO staff report states that if the annexation is approved, the Commission should instruct Braitman to delay recordation of the certificate of completion until the lots were merged. The recommendation was unworkable, which explains why LAFCO never made it an annexation condition. CPH needed water to commence construction. Until the certificate of completion was recorded, it could not proceed with the Golf Links project. Delaying recordation of the certificate of completion created a chicken-egg conundrum. Had LAFCO imposed a lot merger condition as recommended by staff, it would have trumped Coastal Commission approval of the project which deferred merger of the 20+ lots until after the golf course was built.
Braitman had a statutory duty to examine the resolution "and determine whether it is in compliance with the... conditions specified by the commission in its resolution making determinations." (Former Gov. Code, § 57200, subd. (b).) If Resolution 98-11 did not set forth all annexation conditions, Braitman had to "specify in writing the points of noncompliance and within 30 days of receipt of the resolution return the resolution to the conducting authority for modification." (Former § 57200, subd. (b)(1).)
It is uncontroverted that Braitman did not request that Resolution 98-11 be modified to include a lot merger condition. Nor did GWD, as the conducting authority, request that the Braitman or LAFCO correct clerical errors or mistakes in the resolution. (Former Gov. Code, § 56854.) LAFCO was authorized to "make those corrections before the completion of proceedings upon written request by any member of the commission, by the executive officer, or by any affected agency." (Ibid.)
In a June 23, 2008 letter, written nine years after the adoption of Resolution 98-11, Braitman conceded that the lot merger was not a condition of annexation approval. The letter states: "The annexation [application]was approved by LAFCO with the direction that it would be recorded after the lots were merged, not as a condition of the annexation but as a precondition of that action." (Emphasis added.) The letter is telling because Braitman says he was "directed" to delay recordation of the certificate of completion. A "direction" to perform a ministerial act, such as recordation of the certificate of completion at a later date, does not make it an annexation condition or change Resolution 98-11.
In March 2008, a newspaper asked Braitman whether all the steps for annexation were completed in 1998 except for the filing of the annexation with the State. Braitman responded: "You're almost right. LAFCO approved the annexation. The final steps were for the LAFCO staff to (1) record the annexation and (2) file it with the State Board of Equalization."
Respondents contend that timing is everything and that delays in issuing the certificate of completion created new annexation conditions. We reject the argument. The waiver of conducting authority proceedings and recordation of the certificate of completion are different events under the Cortese-Knox Act of 1985. Recordation of the certificate of completion is not part of the "proceedings." Former section 57001 required that conducting authority proceedings be completed within 12 months of adoption of Resolution 98-11 unless LAFCO granted a time extension. There was no statute of limitations period for recordation of the certificate of completion. (Former Gov. Code, § 57001.) Resolution 98-11 stated that conducting authority proceedings were waived if Braitman received written landowner consent to the annexation. Written landowner consent was provided in the Fainer letter, on September 2, 1998, when Resolution 98-11 was adopted on July 8, 1999, when CPH notified GWD that it was the new owner and consented to annexation, and at the August 5, 1999 LAFCO hearing on the first time extension request.
When Resolution 98-11 was adopted, former Government Code section 57001 provided: "If the conducting authority does not complete a proceeding within one year after the commission approves a proposal for the proceeding, the proceeding shall be deemed abandoned unless prior to the expiration of that year the commission authorizes an extension of time for that completion."
The current version of Government Code section 57001 provides that an annexation proceeding is deemed abandoned if the certification of completion is not recorded within one year of approval of the annexation. Respondents' reliance on the statute is misplaced because section 57001, as amended, does not retroactively invalidate the 1998 approval of an annexation. (Gov. Code, § 56101; see, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208 [statutes are presumed to operate prospectively unless there is clear legislative intent for retrospective application].) Government Code section 56101 provides in pertinent part that "the laws existing prior to January 1, 2001, shall continue in full force and effect, as applied to... pending proceedings."
Estoppel
Respondents assert that GWD and landowners (CPH and Makar) are estopped because they were granted time extensions to delay recordation of the certificate of completion. All annexation conditions, however, were satisfied before the first time extension was granted. Braitman had a ministerial duty to execute and record the certificate of completion. (Former Gov Code 57200, subd. (b)(2).) Braitman's mistaken belief that he could delay issuing the certificate of completion did not cause Resolution 98-11 to lapse or expire as a matter of law.
In 2008, LAFCO determined that all annexation conditions were satisfied, that Resolution 98-11 had not expired, and that the certificate of completion should be recorded. As a quasi-legislative agency interpreting its own resolution, LAFCO's decision is entitled to judicial deference. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19Cal.4th1, 11.) "[T]he interpretation of the resolution by the administrative agency charged with enforcing it is entitled to great weight and should be followed unless clearly wrong. [Citation.]" (Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 825-826.)
The evidence supports the finding that Resolution 98-11 did not expire and that Braitman had a ministerial duty to execute and record the certificate of completion. The Cortese-Knox Act of 2000 provides: "All determinations made by a commission under, and pursuant to, this division shall be final and conclusive in the absence of fraud or prejudicial abuse of discretion." (Gov. Code, § 56107, subd. (b).) No fraud or abuse of discretion occurred here.
LAFCO Authority to Impose Additional Conditions
Respondents claim that the lot merger was an annexation condition because LAFCO granted time extensions to delay recordation of the certificate of completion until the lots were merged. Where an administrative agency, by mistake, enters into a superfluous administrative process, the agency does not waive its right to proceed as if the administrative process had not taken place. In Santa Barbara County Flower and Nursery Growers Ass'n v. County of Santa Barbara (2004) 121 Cal.App.4th 864, county certified an environmental impact report (EIR) for an amendment to county's local coastal plan. A lawsuit was filed challenging the adequacy of the EIR. We held that the EIR was unnecessary because the local coastal plan amendment was exempt from CEQA review. (Id., at p. 873.) County could not confer CEQA jurisdiction upon itself by preparing an EIR or engaging in a perfunctory act. (Id., at pp. 873-874.)
The same principle applies here. "Superfluity does not vitiate." (Civ. Code, § 3537.) If LAFCO could impose a lot merger condition after the reorganization was approved, it would undermine the Cortese-Knox-Hertzberg Act which prescribes the exclusive authority and procedure for land annexations. (Gov. Code, § 56100; see Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court (1995) 38 Cal.App.4th 1002, 1014.) "Although LAFCO decisions strongly influence land use, an important limitation on LAFCO jurisdiction and authority is that a commission may not impose any conditions that would directly regulate land use (Govt C § 56886), land use density or intensity (Govt C § 56375(a)), property development, or subdivision requirements (Govt C §§ 56375(a), 56886)." (Lindgren & Mattas, Cal. Land Use Practice (Cont.Ed.Bar 2009) § 14.85, pp. 669-670; see Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 284.)
Assuming that LAFCO could require that CPH merge the lots before commencing construction, it would trump the Coastal Commission approval of the project which deferred merger of the lots until after the Golf Links project was built. Respondents, however, claim that Makar's proposal to construct two single family residences is a new project and requires County environmental review. Even if that were true, LAFCO has no authority to reopen an annexation already approved. A local agency formation commission is a creature of the Legislature and has only those express (or necessarily implied) powers that are specifically granted to it by statute. (Tillie Lewis Foods, Inc. v. City of Pittsburg (1975) 52 Cal.App.3d 983, 999-1000; City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545, 550.)
Braitman's March 8, 2008 staff report on the resubmitted annexation application states: "The County is considering a proposal to construct a home and related uses on the annexation site but the annexation is justified regardless of whether the County approves the request.... [T]he staff does not support the notion that the Commission should defer its decision on the annexation until the County determines whether the home will be permitted. The justification for annexation is not dependent upon a future County decision on the residential use of a portion of the site."
Judicial Estoppel
The trial court found that GWD and landowners relied on the lot merger condition "when it suited their purposes" and are judicially estopped from denying that the lot merger is a condition for annexation. (People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189.) Judicial estoppel " ' "prevents a party from "asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding." ' [Citation.]" (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.) It is an extraordinary remedy to be invoked when a party's inconsistent behavior will otherwise result in a miscarriage of justice. (Ibid.)
There is no evidence that GWD, ARCO, or CPH took a "lot merger" position in a judicial or quasi-judicial administrative proceeding to gain an unfair advantage on the annexation application. Judicial estoppel applies to judicial or quasi-judicial administrative proceedings. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [no estoppel if first position taken based on mistake].) LAFCO is a quasi-legislative administrative agency. LAFCO did not act in a judicial capacity in approving the annexation in 1998 or in directing Braitman to record the certificate of completion. (See San Miguel Consolidated Fire Protection Dist. v. Davis, supra, 25 Cal.App.4th at p. 152.) Equitable estoppel "will not apply against a governmental body except in usual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy. [Citations.]" (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 793.)
Braitman clearly had a ministerial duty to record the certificate of completion after the annexation was approved. (Former Gov. Code, § 57200, subd. (b)(2).) The failure to carry out that duty does not estop LAFCO or divest it of jurisdiction to complete the reorganization. (San Miguel Consolidated Fire Protection Dist. v. Davis, supra, 25 Cal.App.4th at p. 152 [collateral estoppel not applicable to LAFCO determinations]; see e.g., Native American Sacred Site and Environmental Protection Assn v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 966 [city's ministerial duty to adopt qualified voter initiate or place it on ballot did not lapse with passage of time].) Stated another way: "Subject matter jurisdiction cannot be conferred [or lost] by consent, waiver or estoppel. [Citations.]" (Buckley v. California Coastal Com. (1998) 68 Cal.App.4th 178, 190; see e.g., Las Tunas Beach Geologic Hazard Abatement Dist. v. Superior Court, supra, 38 Cal.App.4th at p. 1014.)
We take Resolution 98-11 as we find it. To its credit, LAFCO states that GWD and landowner (CPH and Makar) should not be penalized if LAFCO "dropped the ball." We concur. It is not the legitimate function of an appellate court to add annexation conditions based on a mistake that took 10 years to resolve. (See e.g., Unzuetta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1696-1698.) Nor does this court sit as a super-LAFCO in annexation matters.
Conclusion
The judgment invalidating the annexation is reversed. We remand with directions to the trial court to enter an order validating the annexation. The award of attorney fees to respondents is vacated. Respondents are to pay costs on appeal.
We concur: COFFEE, J., PERREN, J.
"Affected territory" means the territory for which a change of organization or reorganization is proposed, " i.e., the 130 acres to be annexed. (Gov. Code, § 56015.) The only landowner within the affected territory was ARCO and its successor CPH. There were no other landowners. "Conducting authority" means the affected district whose boundaries would be changed as a result of the proposed annexation or reorganization, i.e., GWD. (Former Gov. Code, § 56029, subd. (b).) If all landowners in the affected territory did not consent to the annexation, GWD was to proceed with "conducting authority proceedings." The framework for conducting authority proceedings is set forth in Government Code section 57000 et seq. and requires that the conducting authority hold public hearings and in some cases, elections within the affected territory. (See Malibu Committee for Incorporation v. Board of Supervisors (1990) 222 Cal.App.3d 397, 402.) If the conducting authority receives written protests from landowners owning fifty percent or more of the assessed value of land within the territory, the "majority protest" causes the annexation to be abandoned. (Gov. Code, § 57078.)
Effective January 1, 2001, Government Code section 57001 was amended to provide in pertinent part: "If a certificate of completion for a change of organization or reorganization has not been filed within one year after the commission approves a proposal for that proceeding, the proceeding shall be deemed abandoned unless prior to the expiration of that year the commission authorizes an extension of time for that exemption." (Emphasis added.)