LAFCO discusses conditioning incorporation upon tax approval

LAFCO, which stands for Local Agency Formation Commission and has jurisdiction over cityhood incorporations, can likely condition approval of an incorporation proposal upon approval of a general tax.

“I think it provides us with a tool that we haven’t had before,” said San Diego LAFCO board chair Andy Vanderlaan.

An information item presented at San Diego LAFCO’s September 11 board meeting cited an August 11 Attorney General’s opinion. An Attorney General’s opinion is not binding upon the courts in the event of a legal challenge, but such opinions tend to be given considerable respect, especially when dealing with government law.

Although no new cities have incorporated in San Diego County since 1986, several communities have activists seeking consideration of incorporation. “We have the probability of several incorporation proposals being submitted in this county,” said San Diego LAFCO executive officer Mike Ott.

Some of those proposals, Ott noted, might not be financially feasible for the new city without a tax to provide additional revenue. San Diego LAFCO was unsure whether approval of an incorporation proposal could be conditioned upon approval of a tax, and LAFCO general counsel William Smith sought an Attorney General’s opinion. Since a two-thirds vote of a city council or other local legislative body is required to put a general tax on the ballot, Smith also inquired whether a LAFCO commission’s resolution imposing the condition could be adopted by a simple majority vote if the condition was unable to obtain the support of two-thirds of the LAFCO board.

The Attorney General’s opinion noted that LAFCO could condition approval of an incorporation upon approval of a general tax and that a simple majority of a LAFCO board could impose the condition, which would need to be ratified by a simple majority of the voters. The opinion noted that the state legislature has given LAFCO authority to impose conditions upon an incorporation, and California Government Code section 56886(s) specifically notes that approval of incorporation could be subject to the levying of assessments, including the imposition of a fee, or the approval by the voters of general or special taxes.

A general tax is a tax for general purposes and needs only a majority vote. A special tax is a tax for special purposes and needs a 2/3 vote (under certain conditions school district general obligation bonds may be approved by a 55 percent vote). A general tax must be voted upon by the public during a general election for members of a governing body, and while LAFCO ballot measures for incorporation votes are referred to as special elections they are consolidated with general elections and take place on a regularly-scheduled election date.

In 1986 the state’s voters passed Proposition 62, whose provisions include a requirement that an ordinance or resolution proposing a general tax be approved by a two-thirds vote of all members of a local government’s legislative body. The tax must also be approved by a simple majority of the voters in that jurisdiction.

Proposition 62 refers to “taxing authorities” or agencies having “local taxing power.” LAFCO does not have the authority to impose a tax. The Attorney General’s opinion thus concluded that a LAFCO resolution imposing a condition of approval of a general tax requires only a majority vote of the LAFCO board.

“That doesn’t mean any of these issues cannot be litigated in court, but I think the opinion is reasonable,” Smith said.