HomeMy WebLinkAboutRPT 3 PRE-ANNEX DEV AG 04-04-88MARCB 29, 1988
F~OM:
SUBJECT:
REPORTS
'NO. 3
4-4-88
'Inter.-Com
THB HONORABLE MAYOR AND HEMBERS OF THE CITY COUNCIL~
CITX ATTORNEY
PROPOSED PRE-ANNEXATIONAND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA ANA AND SANTA ANA HILLS
PROPERTY OWNERS
YOU have asked for our opinion on the validity of the "Pre-
Annexation and Development Agreement Between the City of Santa
Ana and Santa Ana Hills Property Owners" proposed by the City of
Santa Ana and certain North Tustin persons and organizations to
be entered into between the City of Santa Ana and at least 51% of
the North Tustin property owners.
In our opinion, such an Agreement would be invalid and
unenforceable for a number of reasons. The principal reasons are
given below.
1. The Aqreement is an invalid attempt bY the City to
surrender its future riqht to exercise its police power.
A public agency may not surrender its future right to
exercise the police power (Delucchi v. County of Santa Cruz, 179
Cal.App.3d 814, 823-824 (1986); Morrison Homes Corp. v. City of
Pleasanton, 58 Cal.App.3d 724, 734 (1976); and ~uillan
Municipal Corporations (3rd Edition, 1981 Revised Volume) Section
2907, pages 230-234). This rule voids contracts where the agency
surrenders or abnegates its control of a properly municipal
function. (Morrison, supra, page 734.) .
The proposed Pre-Annexation and Development Agreement, among
other things, purports to restrict the ability of the City to
make zone changes, to make. improvements or changes in its
streets, or to change the manner in which water is furnished to
residents. It also purports to require the City to sponsor a
charter amendment to provide two councilmen for the North Tustin
area.
After annexation of the area pursuant to the Agreement, the
Agreement purports to virtually prohibit the City from exercising
its police powers to make any changes in the area. Entry into
such an agreement would, in our view, be an improper surrender or
abnegation of the City's control of its proper municipal
functions, and therefore would be invalid.
2. The City of santa Ana cannot enter into a Development
Aqreement affecting property outside its sphere of influence.
Page 2
Government Code Section 65856(b) provides, in part, as
follows:
"Any city may enter into a development
agreement with any person having a legal or
equitable interest in unincorporated
territory within that city's s~here of
influence ..." (Emphasis added.)
The North Tustin area is not within the sphere of influence
of the City of Santa Ana. Therefore, the City of Santa Ana could
not validly enter into a Development Agreement with the residents
of that area.
3. The Agreement, even if otherwise enforceable, would not
be enforceable against property owners who did not sign it.
The proposed Agreement is apparently not contemplated to be
signed by all of the residents of the North Tustin area. It's
goal is apparently to obtain the signatures of at least 51% of'
those residents.
Residents who did not sign the Agreement would not be bound
by it. There would be nothing to prohibit them from applying for
street projects, zone changes, or a change in the provisions of
the City Charter pertaining to council representation. ~en such
inevitable applications came before the Santa Ana City Council,
it would be in the classic conflict of interest situation in
which, on the one hand, the Santa Ana City Council could feel an
'obligation to enforce the terms of the Agreement, and on the
other hand, would be obligated by law to consider fairly and
impartially all applications for changes in the area by non-
signers of the Agreement. Such non-signers would have all the
rights to zone changes, street improvements, etc. as though the
agreement did not exist.
This conflict is even spelled out on page 2 of the Agreement
in the following terms:
"It is acknowledged that while the provisions
of this Agreement will bind the City if it is
executed by at least such requisite number of
property owners, and the parcels of land
owned by such property owners, it will not
bind any other parcel or property owner."
While recognizing that the Agreement cannot be binding on
the owners who do not sign it, the Agreement, nevertheless, in
many places purports to restrict the City from responding to
requests from non-signers to make changes in the area. For
example, on page 9, the Agreement purports to prohibit the City
from adding additional curbs and gutters to the streets or from
modifying the transportation or circulation plan unless it
Page 3
obtains the approval of 2/3rds of the property owners within the
area.
These kinds of restrictions would make it virtually
impossible for the City of Santa Ana to fairly and impartially
consider requests by non-signers to make changes. This conflict
caused by the fact that many residents will not be bound by the
Agreement would, in our opinion, make the Agreement invalid and
unenforceable, probably as against signers as well as non-
signers.
The proposed agreement would only appear to give some
benefits, rights and protection to North Tustin residents which
in fact would prove to be illusory and unenforceable. At best
the agreement could only be enforced against its signers, but
they would likely not be the people who might seek zone changes,
etc., thus the people who do not want changes would be the only
possible people bound by the agreement and the people who might
want such changes would clearly not be bound. This proposed
agreement appears to be an attempt to cause North Tustin
residents to believe they would be getting something from such an
agreement when in fact they would not.
There are a number of other questionable aspects of the
Agreement which may be of interest to the City Council. If you
have any specific questions regarding any particular provision of
the proposed Agreemen~ le~"us....~ know.
JGR:se :R: 03/29/88:C2053A
JGR: se:R: 03/30/88
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