Filed 8/11/16 (unmodified opn. attached)




                                CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIFTH APPELLATE DISTRICT


CITY OF SELMA,
                                                                     F072147
        Plaintiff and Appellant,
                 v.                                      (Super. Ct. No. 13CECG02651)

FRESNO COUNTY LOCAL AGENCY
FORMATION COMMISSION,                                 ORDER MODIFYING OPINION AND
                                                          DENYING REHEARING
        Defendant and Respondent;
                                                        [No Change in Judgment]
CITY OF KINGSBURG,
        Real Party in Interest and Respondent.


THE COURT:
        It is ordered that the opinion filed herein on July 14, 2016, and reported in the
Official Reports (1 Cal.App.5th 573) be modified in the following particulars:
        On page 6 of the slip opinion, the fifth full paragraph, beginning “By June 5,
2013,” is deleted and the following paragraph is inserted in its place:

               An executive officer‟s report stated the April 10, 2013, hearing had
        been “continued to a date uncertain (with a target date of June 5, 2013) to
        allow time” for a transition agreement to be negotiated. However, as of
        June 5, 2013, the parties were still in negotiations on a transition
        agreement. According to the agenda for the June 5, 2013, LAFCo meeting,
        the commission was given an update concerning the Kingsburg annexation
     matter. The June 5, 2013, executive officer‟s report indicated LAFCo staff
     intended for the transition agreement issue, among others, to be “resolved
     in time for the August 7, 2013 hearing[.]”


     There is no change in the judgment.
     Appellant‟s petition for rehearing is denied.

                                                     ___________________________
                                                                         PEÑA, J.
WE CONCUR:


 __________________________
KANE, Acting P.J.


 __________________________
DETJEN, J.




                                           2.
Filed 7/14/16 (unmodified version)




                        CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIFTH APPELLATE DISTRICT


CITY OF SELMA,
                                                                         F072147
        Plaintiff and Appellant,
                 v.                                         (Super. Ct. No. 13CECG02651)

FRESNO COUNTY LOCAL AGENCY
FORMATION COMMISSION,                                                  OPINION
        Defendant and Respondent;
CITY OF KINGSBURG,
        Real Party in Interest and Respondent.


        APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.

        Costanzo & Associates and Neal E. Costanzo for Plaintiff and Appellant.
        Baker, Manock & Jensen and Kenneth J. Price for Defendant and Respondent.
        Kahn, Soares & Conway, Rissa A. Stuart and Michael J. Noland for Real Party in
Interest and Respondent.
                                             -ooOoo-




        *Pursuant  to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I.D through III of the DISCUSSION.
                                   INTRODUCTION
       When a local agency formation commission sets a public hearing on a
reorganization proposal and thereafter continues the hearing date beyond the 70-day
limitation for continuances under Government Code section 56666, subdivision (a), is the
approval of the reorganization proposal by the commission void because it violated a
mandatory provision? We conclude the 70-day limitation is a directory rather than a
mandatory provision. As a result, we hold the violation of the 70-day limitation in this
case did not affect the validity of the commission‟s actions taken at the continued
hearing.
                                         FACTS
1.     The Project
       In 2012, the City of Kingsburg (Kingsburg) studied a proposal to annex
approximately 430 acres of land in Fresno County (the Annexation Territory). The
Annexation Territory included 350 acres that had been developed with
industrial/commercial uses, 52 undeveloped acres, and approximately 28 acres of street
rights-of-way. The Annexation Territory is home to at least three major facilities,
including: a glass manufacturing plant run by Guardian Industries Corp., a grape
processing facility run by Vie-Del Company, and a raisin processing plant run by Sun-
Maid Growers of California.
       In addition to annexing the land into Kingsburg, the project also involved
detaching portions of the Annexation Territory from the Fresno County Fire Protection
District (FCFPD), the Consolidated Irrigation District, and the Kings River Conservation
District. The project also involved annexing portions of the Annexation Territory into the
Selma-Kingsburg-Fowler County Sanitation District. Finally, the project included
prezoning approximately 183 acres as “Highway Commercial” and “Light Industrial.”




                                            2.
2.     California Environmental Quality Act1 Review
       Kingsburg prepared and circulated a combined initial study and mitigated negative
declaration for the annexation project (MND). (See Cal. Code Regs., tit. 14, §§ 15365,
15369.5.)2 Below, we discuss certain portions of the MND in detail along with the
appellate issues to which they pertain.
       On September 5, 2012, the Kingsburg City Council certified the MND.
3.     Local Agency Formation Commission Proceedings
       Every county in California has a local agency formation commission. (Gov. Code,
§ 56325.)3 These commissions oversee local agency boundary changes, including
municipal annexations, under the auspices of the Cortese-Knox-Hertzberg Local
Government Reorganization Act of 2000 (hereafter Reorganization Act). (§§ 56000 et
seq.; Placer County Local Agency Formation Com. v. Nevada County Local Agency
Formation Com. (2006) 135 Cal.App.4th 793, 797; see § 56375.)
       When Kingsburg certified the MND on September 5, 2012, it also requested that
the Fresno County Local Agency Formation Commission (LAFCo4) initiate proceedings
to approve the annexation. On October 22, 2012, Kingsburg submitted to LAFCo
application materials for approval of the annexation.
       LAFCo rejected the application since it had relied on a previous application from
nine years prior. LAFCo requested Kingsburg submit a new application, and Kingsburg
did so in November 2012. The application indicated no change was being proposed to
the provision of domestic water for the area.



       1Public Resources   Code section 21000 et seq. (CEQA).
       2The Guidelines    for the Implementation of the California Environmental Quality Act
(Cal. Code Regs., tit. 14, § 15000 et seq.) will hereinafter be referred to as the CEQA Guidelines.
       3All   undesignated statutory references are to the Government Code.
       4“We shallhereafter refer to that commission, and to such commissions generally, as
LAFC[o]; the context will make clear which meaning is intended.” (City of Santa Cruz v. Local
Agency Formation Com. (1978) 76 Cal.App.3d 381, 386.)

                                                3.
       Kingsburg prepared a service plan, describing how certain services would be
provided to the Annexation Territory. (See § 56653.) Kingsburg‟s service plan is dated
July 2012. However, in an e-mail correspondence on November 2, 2012, LAFCo staff
informed Kingsburg staff that a service plan was required. Kingsburg staff responded by
asking what a service plan was, and they were provided an exemplar by LAFCo on
November 8, 2012. This information suggests the service plan was not prepared in July
2012, but rather sometime on or after November 8, 2012.
       On November 15, 2012, LAFCo‟s Executive Officer Jeff Witte sent a notice and
request for comment to several local agencies. (See § 56663.) The notice indicated:

       “LAFCo can not [sic] take any further action on this resolution of
       application for 10 days following this notice and request for comments.
       [¶] If your agency files a written request for a hearing during this 10-day
       period, LAFCo must notice and hear this proposal at a public hearing. If no
       written request is filed by your agency, the Commission may proceed
       without notice and hearing if all required conditions pursuant to state law
       have been satisfied (Gov Code Sec 56663 (b))[.]”
       On November 21, 2012, the City of Selma (Selma) transmitted through counsel a
written demand for notice and hearing “[p]ursuant to … § 56663(b)” to Witte. The
demand referenced a November 15, 2012, notice from Witte to Selma. Selma‟s letter
demanded LAFCo only make determinations concerning Kingsburg‟s application after
notice and a hearing. The demand also referenced CEQA litigation Selma had initiated
against Kingsburg over the annexation project. The demand raised the possibility a court
would issue an injunction preventing LAFCo from further processing Kingsburg‟s
application.
       On November 28, 2012, LAFCo‟s counsel provided a written response. The letter
indicated Witte believed LAFCo had an obligation to move forward with Kingsburg‟s
application despite the pendency of CEQA litigation. The letter informed Selma that
Witte anticipated Kingsburg‟s application would be considered by LAFCo during its
January 9, 2013, meeting, rather than on December 5, 2012.


                                           4.
       On December 4, 2012, LAFCo informed Kingsburg in writing its application was
incomplete. The letter indicated that in order for a certificate of filing (§ 56658, subds.
(f)-(g)) to issue and a hearing to be scheduled, Kingsburg needed to provide a “Signed
Legal Indemnity” and a letter from the Selma-Kingsburg-Fowler County Sanitation
District indicating its willingness and ability to serve the Annexation Territory.
       On December 10, 2012, LAFCo requested additional documentation from
Kingsburg.
       On March 18, 2013, Witte sent a document to Kingsburg with the heading
“CERTIFICATE OF FILING.” The body of the document stated:

              “This notice certifies that on March 18, 2013, pursuant to Section
       56658(g) …, the proposed „Guardian/Sun-Maid Reorganization‟ for the
       City of Kingsburg was accepted for filing with the Local Agency
       Formation Commission.

              “The time, date and place for the Local Agency Formation
       Commission‟s consideration of the subject proposal is 1:30 p.m.,
       Wednesday, April 10, 2013, in Room 301, Hall of Records, Tulare and „M‟
       Streets, Fresno.”
       A notice of public hearing was published in The Business Journal on March 18,
2013. The notice indicated that on April 10, 2013, at 1:30 p.m., LAFCo would be
considering Kingsburg‟s requested annexation.
       In a letter dated April 10, 2013, Guardian Industries Corp. requested LAFCo
postpone the hearing on the annexation application. The letter indicated that “[w]hile
Guardian has not proposed any specific project on the Guardian Property, to remain
competitive in the glass manufacturing business, Guardian from time to time is required
to perform modifications to its facility, which usually requires discretionary permits from
the applicable local agency. Indeed, [a LAFCo] Staff Report recognizes the strong
possibility of future expansion ….”




                                              5.
       That same day, LAFCo continued the hearing on the reorganization “to a date
uncertain to allow time for … Kingsburg and the [FCFPD] to negotiate a transition
agreement consistent with LAFCo Policy 102-04-041.”
       A LAFCo executive officer‟s report, also dated April 10, 2013, indicated that on
“March 29, 2013, [Kingsburg] informed LAFCo Executive Officer that [Kingsburg]
intends to provide an addendum to the certified Mitigated Negative Declaration
addressing the lack of a fire transition agreement between the [FCFPD] and
[Kingsburg].”
       The addendum to the MND appears in the administrative record. The addendum
contains the text “Draft: 040113” at the top, suggesting it was being worked on in early
April 2013. The addendum references a transition agreement that had been in place
between Kingsburg and FCFPD. The addendum indicated the transition agreement—
which concerned the transfer of certain general ad valorem real property tax revenue
affected by annexations—had expired and no new agreement was in place. The
addendum asserts the absence of a transition agreement “did not result in any new or
increased impacts to fire protection services for the Territory after annexation.
Additionally, the … Kingsburg Fire Department has sufficient capacity to service [the]
Territory with both fire and emergency services.”
       In a document entitled “LAFCo Notes,” Witte commented: “I am concerned that
… Kingsburg originally said that there were no projects forthcoming for Guardian
Industries or Sun Maid, and I am now hearing from some connections in the construction
industry that Sun Maid is looking at a major project.”
       By June 5, 2013, Kingsburg and the FCFPD were still in negotiations regarding a
transition agreement.
       On June 24, 2013, LAFCo published in The Business Journal a notice of a public
hearing on the annexation for July 17, 2013.




                                             6.
       On July 15, 2013, Selma transmitted a letter to LAFCo objecting to the notice of
hearing for the July 17, 2013, meeting. Selma asserted that under section 56666,
subdivision (a), LAFCo could not continue the hearing to July 17, 2013, because it was
more than 70 days after the originally noticed date of April 10, 2013.
       LAFCo‟s counsel responded the 70-day limitation in section 56666, subdivision
(a) was directory rather than mandatory pursuant to section 56106.
       On the date of the hearing, Kingsburg and FCFPD advised LAFCo they were
finalizing a transition agreement. After the public hearing, LAFCo then determined the
CEQA documents prepared by Kingsburg were legally adequate, and the annexation was
consistent with LAFCo‟s standards and the Reorganization Act.
       LAFCo approved the annexation, subject to several conditions.
       On July 24, 2013, LAFCo filed a notice of determination. (Pub. Resources Code,
§ 21152.)
       Selma filed a writ of mandate challenging LAFCo‟s approval of the annexation.
The trial court denied the writ and Selma appeals.
                                      DISCUSSION
I.     The 70-Day Time Limit in Section 56666, Subdivision (a) Is Directory, Not
       Mandatory
       “Issues involving the interpretation and application of statutes are subject to de
novo review.” (Cequel III Communications I, LLC v. Local Agency Formation Com. of
Nevada County (2007) 149 Cal.App.4th 310, 317.) Selma presents such an issue by
arguing LAFCo violated the Reorganization Act by continuing the public hearing on the
annexation for more than 70 days.
       Section 56666, subdivision (a) provides: “The hearing shall be held by the
commission upon the date and at the time and place specified. The hearing may be
continued from time to time but not to exceed 70 days from the date specified in the
original notice.”


                                             7.
       LAFCo does not dispute the hearing was continued to a date more than 70 days
after the date specified in the original notice.5 Instead, it contends the 70-day limitation
is directory rather than mandatory.

              “„A statutory requirement may impose … a duty to act in a particular
       way, and yet failure to do so may not void the governmental action taken in
       violation of the duty. [Citations.] This distinction is generally expressed in
       terms of calling the duty „mandatory‟ or „directory.‟ „[T]he „directory‟ or
       „mandatory‟ designation does not refer to whether a particular statutory
       requirement is „permissive‟ or „obligatory,‟ but instead simply denotes
       whether the failure to comply with a particular procedural step will or will
       not have the effect of invalidating the governmental action to which the
       procedural requirement relates.‟” (In re Richard S. (1991) 54 Cal.3d 857,
       865.)
       Section 561066 provides: “Any provisions in this division governing the time
within which an official or the commission is to act shall in all instances, except for
notice requirements and the requirements of subdivision (h) of Section 56658 and
subdivision (b) of Section 56895, be deemed directory, rather than mandatory.”
       The meaning of this statute is clear. If a provision of the Reorganization Act
meets three criteria, it is directory. First, the provision must “govern[] the time within
which an official or the commission is to act ….” (§ 56106.) Second, the provision must
not be a “notice requirement[] ….” (Ibid.) Finally, the provision must not be a
“requirement[] of subdivision (h) of Section 56658” or “subdivision (b) of Section
56895.” (Ibid.) If the provision satisfies these three conditions, it is directory and not
mandatory.


       5The certificate   of filing was issued on March 18, 2013.
       A subsequently published notice set the hearing date at April 10, 2013. Thereafter,
LAFCo continued the hearing “to a date uncertain to allow time for … Kingsburg and the
[FCFPD] to negotiate a transition agreement ….” Eventually the continued hearing was held on
July 17, 2013, more than 70 days after April 10, 2013.
       6Effective January 1, 2015, section 56106 was amended to reference relettered
subdivision (h) of section 56658. (Stats. 2014, ch. 112, § 3.) The parties cite to the current
version of section 56106 rather than the version in effect in 2013. We will do the same.

                                                 8.
       A.     The 70-day Limitation Governs the Time Within Which the
              Commission Is to Act
       Section 56666, subdivision (a) “govern[s] the time within which … the
commission is to act.” (§ 56106.) Specifically, it requires the commission to “act” by
holding a continued hearing within 70 days from the date specified in the original notice.
(§ 56666, subd. (a).)
       Selma argues the provision does not govern the time within which LAFCo is to
act; instead, it “sets outermost limitations for conducting the hearing.” Selma argues the
subject matter of section 56666, subdivision (a) is the same as section 56658, subdivision
(h), and neither statute has anything to do with the time in which LAFCo is to take action.
But if that were true, why would section 56106 have to say that it applies to “provisions
… governing the time within which an official or the commission is to act … except for
… the requirements of subdivision (h) of Section 56658”? (§ 56106, italics added.) If
subdivision (h) of section 56658 was not a provision governing the time within which a
LAFCo is to act, then there would be no need for this exception. Thus, Selma‟s
interpretation would render language in section 56106 superfluous and we reject it. (See
Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570, 577 [rejecting
interpretation of statute because it rendered language in statute superfluous].)
       B.     The 70-day Limitation Is Not a “Notice Requirement”
       The Reorganization Act does have several notice requirements. For example,
section 56660 requires a LAFCo executive officer to give notice of any hearing by
publication. Section 56661 requires a LAFCo to make notices available on its Web site if
it has one. Section 56155 requires mailed notice to “be sent first class and deposited,
postage prepaid, in the United States mails ….”
       However, section 56666, subdivision (a) is different. In relevant part, it permits
continuation of a hearing “not to exceed 70 days from the date specified in the original
notice.” (§ 56666, subd. (a).) This is a scheduling requirement for continued hearings,
not a notice requirement.

                                             9.
       Admittedly, the provision does contain the word “notice.” However, that mention
can hardly be described as a notice requirement. The reference to “the original notice”
does not articulate any requirement on the notice, but instead is used to describe the time
requirement being imposed on the scheduling of continued hearings. To illustrate,
imagine the statute said “the public hearing cannot be continued for more than 70 days
from the date an application is filed with the LAFCo.” No one would call that an
“application requirement.” Similarly, section 56666, subdivision (a) is not a notice
requirement under section 56106.
       C.     The 70-day Limitation Is Not a Requirement of Section 56658,
              Subdivision (h) or Section 56895, Subdivision (b)
       The 70-day limitation is not a requirement of either section 56658, subdivision (h)
or section 56895, subdivision (b).7 Section 56658, subdivision (h) requires the public
hearing to be initially scheduled for a date “not more than 90 days after the issuance of
the certificate of filing or after the application is deemed to have been accepted,
whichever is earlier.”
       Section 56666, subdivision (a)‟s 70-day limitation on continued hearings is
nowhere to be found in section 56658, subdivision (h). Selma emphasizes the last
sentence of section 56658, subdivision (h), which reads: “Notwithstanding Section
56106, the date for conducting the hearing, as determined pursuant to this subdivision, is
mandatory.” But that provision concerns the initial scheduling of the hearing, while an
entirely different statute—section 56666, subdivision (a)—deals with scheduling
continued hearings. The last sentence of section 56658, subdivision (h) applies, by its
own terms, to hearing dates “determined pursuant to this subdivision.” The July 17,
2013, hearing date being challenged here was not determined pursuant to that subdivision
(i.e., § 56658, subd. (h)). It was determined pursuant to section 56666, subdivision (a).


       7Section  56895 concerns written requests for a LAFCo to amend or reconsider its
resolutions and is clearly inapplicable. (§ 56895, subd. (a).)

                                             10.
       Selma also argues that since the 90-day limitation for initial hearings is
mandatory, we should hold the 70-day limitation for continued hearings in section 56666
is also mandatory.8 There are several flaws with this reasoning.
       First, the fact section 56658, subdivision (h) expressly excepts itself from section
56106 while section 56666, subdivision (a) does not, militates against finding the latter
mandatory. The Legislature clearly knew how to except a provision from the reach of
section 56106. The fact section 56666, subdivision (a) contains no such exception
indicates the Legislature did not intend to remove it from the scope of section 56106.
(Cf. Simmons v. Ghaderi (2008) 44 Cal.4th 570, 583 [express exception in one statute
shows Legislature knew how to enact exception but chose not do so in another statute].)
       Second, Selma argues construing the language of section 56666, subdivision (a) as
directory rather than mandatory would render section 56658, subdivision (h)
meaningless. Selma observes that if the 70-day limit for continued hearings is directory,
then a LAFCo could schedule an initial hearing within the 90-day time limit and then
continue the hearing indefinitely into the future. But doing so would violate the statute.
Even though section 56666, subdivision (a) is directory, it does not permit a LAFCo to
act as described in Selma‟s hypothetical. “„[T]he “directory” or “mandatory” designation
does not refer to whether a particular statutory requirement is “permissive” or
“obligatory,” but instead simply denotes whether the failure to comply with a particular
procedural step will or will not have the effect of invalidating the governmental action to
which the procedural requirement relates.‟” (In re Richard S., supra, 54 Cal.3d at p.
865.) In other words, acting contrary to a directory statute is still a “failure to comply”
(ibid) with the statute. Here, the 70-day limitation on continued hearings is obligatory in

       8In  its reply brief, Selma claims it is not contending LAFCo‟s approval is void because it
occurred at a continued hearing set more than 70 days after the original notice of hearing.
Selma‟s primary argument is that no valid continuance occurred and, therefore, the purported
July 17, 2013, hearing is governed by section 56658, subdivision (h). But Selma‟s opening brief
also asserts LAFCo‟s action was void for failing to conform to section 56666, subdivision (a).
Even Selma‟s reply brief goes on to argue that section 56666, subdivision (a) is mandatory.

                                               11.
the sense that a LAFCo violates the Reorganization Act when it continues a hearing in
excess of 70 days from the date specified in the original notice.9 We agree the statutory
text indicates the Legislature wanted to avoid the “loophole” Selma describes. But “„[n]o
legislation pursues its purposes at all costs.‟” (County of Sonoma v. Cohen (2015) 235
Cal.App.4th 42, 48.) While the Legislature requires a LAFCo to hold continued hearings
within a particular time frame, it apparently did not want a failure to comply with that
time frame requirement to result in invalidation of the LAFCo‟s determinations. (See
§ 56106.)
       While this conclusion renders the 70-day limit relatively toothless, “„[w]e are not
free to rewrite the law simply because a literal interpretation may produce results of
arguable utility.‟” (Steven R. v. Superior Court (2015) 241 Cal.App.4th 812, 821.) We
are not concerned with whether a law is toothless, so long as it is intentionally so. (See
Code Civ. Proc., § 1858.)
       Moreover, even if we agreed it does not make sense to have a mandatory 90-day
limitation for the initial scheduling of a hearing and a directory 70-day limitation on the
continuance of hearings, that conclusion would not change our decision. Even when a
particular statutory distinction “makes not a whit of sense” (CSX Transp., Inc. v.
Alabama Dept. of Revenue (2011) 562 U.S. 277, 295), courts must defer to the fact the
Legislature “wrote the statute it wrote ….” (Id. at p. 296.)

       D.     Selma’s Contention that No Continuance Occurred Is Unavailing*
       Selma contends section 56666, subdivision (a) does not apply because the hearing
was not continued “to any specific date.” We do not see how postponing a hearing is not
a continuance merely because the future hearing date is not set at the original


       9In this respect, we disagree with LAFCo‟s assertion “directory” is synonymous with
“discretionary.” We do not hold a LAFCo is permitted to continue a hearing beyond 70 days.
Instead, we hold that when a LAFCo does continue a hearing beyond 70 days in violation of
section 56666, subdivision (a), the consequence is not reversal of its determinations.
       *See footnote,   ante, page 1.

                                             12.
postponement. Selma claims “[a] precise date for the continued hearing must be
specified in order for a continuance to be effective.” It cites In re Angela C. (2002) 99
Cal.App.4th 389, 392-393 and City etc. of San Francisco v. Carraro (1963) 220
Cal.App.2d 509 in support of this assertion. Neither is on point. In Angela C., a hearing
to terminate parental rights was continued but there was no indication the appellant
parent was notified of the actual date of the continued hearing. (Angela C., supra, at pp.
392-393.) The appellate court held, unremarkably, that a parent must receive notice of
the actual date of a continued hearing to terminate parental rights. (Ibid.) There is
nothing in Angela C. to suggest it would have been improper for the trial court to have
initially continued the termination hearing to a date uncertain and then later set a specific
date for the continued hearing so long as the parent was notified of the specified
continued hearing date. And Selma offers no pin cite to the Carraro case, which, in any
event, concerned the proof of notice of a continued trial date and time. (See Carraro,
supra, at pp. 520-525.)
       After briefing was completed, Selma informed us of the case Gaines v. Fidelity
Nat. Title Ins. Co. (2016) 62 Cal.4th 1081. (See Cal. Rules of Court, rule 8.254.) In
Gaines, the trial court issued an order striking the trial date and purportedly staying the
case for 120 days. (Gaines, supra, at p. 1089.) Selma claims the Supreme Court held the
trial court‟s order was in fact a stay, not a continuance. In actuality, the Supreme Court
arrived at the opposite conclusion, holding: “We conclude that this order striking the trial
date at the parties‟ request should be construed as a continuance of the trial of the action
rather than a stay.” (Id. at p. 1093.) Regardless, the issue in Gaines was whether a trial
court order constituted a stay under Code of Civil Procedure section 583.340, subdivision
(b). (Gaines, at pp. 1091-1094.) It is not controlling as to whether LAFCo‟s actions here
amounted to a continuance as contemplated by section 56666, subdivision (a).
       Selma observes section 56666, subdivision (a) contemplates hearings being
continued “from time to time.” Selma contends this means the hearing must be continued


                                             13.
“from one time to another time.” But the hearing here was continued from one time to
another time. Specifically, it was continued from April 10, 2013, to July 17, 2013.
Selma‟s true complaint is the continuance from one time to another was effected by two
separate acts: (1) continuing the hearing to a date uncertain and (2) later setting a
continued hearing for July 17, 2013. But the phrase “from time to time” (§ 56666, subd.
(a)) does not speak to whether such a continuance must be contained within a single
decree.

II.    Selma Has Failed to Show LAFCo Improperly Relied on the MND*
       Noting several alleged inadequacies of Kingsburg‟s CEQA analysis, Selma
contends LAFCo improperly relied on the faulty MND.
       A.     Law
              1.        Lead and Responsible Agencies Under CEQA
       When a CEQA project is to be carried out by multiple public agencies, only one of
the agencies is responsible for preparing an EIR or negative declaration. (CEQA
Guidelines, § 15050, subd. (a).) This agency is called the “lead agency.” (Ibid.) All
other public agencies with discretionary approval power over the project are called
“responsible agencies.” (CEQA Guidelines, § 15381.)
       When a city prezones and annexes an area, the city is the lead agency and the
LAFCo is a responsible agency. (CEQA Guidelines, § 15051, subd. (b)(2).) Here,
Kingsburg was the lead agency over the annexation project and LAFCo was a responsible
agency.




       *See footnote,   ante, page 1.

                                             14.
              2.     A Lead Agency’s Determination to Prepare a Negative
                     Declaration Is Binding on Responsible Agencies Unless
                     Circumstances Described in CEQA Guidelines Section 15162
                     Occur
              “The determination of the lead agency of whether to prepare an EIR
       or a negative declaration shall be final and conclusive for all persons,
       including responsible agencies, unless:

             “(1) The decision is successfully challenged as provided in Section
       21167 of the Public Resources Code.

             “(2) Circumstances or conditions change as provided in [CEQA
       Guidelines] Section 15162.

             “(3) A responsible agency becomes a lead agency under [CEQA
       Guidelines] Section 15052.” (CEQA Guidelines, § 15050, subd. (c), italics
       added.)
Consequently, Kingsburg‟s decision to prepare a mitigated negative declaration was
binding on LAFCo unless one of these three conditions occurred. There is no question
the first and third conditions are inapplicable—Kingsburg‟s decision to prepare a
negative declaration has not been successfully challenged and LAFCo has not become the
lead agency on the project. (See CEQA Guidelines, § 15050, subd. (c)(1), (3).)
       Therefore, we must determine whether the circumstances of the project have
changed “as provided in [CEQA Guidelines] Section 15162.” (CEQA Guidelines,
§ 15050, subd. (c)(2).) If so, the MND would not be final and binding, and LAFCo may
have been required to make a different determination. However, if the circumstances had
not changed “as provided in [CEQA Guidelines] Section 15162,” then LAFCo cannot be
faulted for deferring to Kingsburg‟s binding determination to prepare a mitigated
negative declaration. (See CEQA Guidelines, § 15050, subd. (c).)
       CEQA Guidelines section 15162 provides for additional environmental analysis
when any one of three events occur after adoption of a negative declaration or EIR. (Id.,
subd. (a)(1)-(3).) First, additional environmental analysis is required when “[s]ubstantial
changes are proposed in the project which will require major revisions of the previous
EIR or negative declaration due to the involvement of new significant environmental
                                            15.
effects or a substantial increase in the severity of previously identified significant
effects.” (Id., subd. (a)(1).) Second, additional environmental analysis is required when
“[s]ubstantial changes occur with respect to the circumstances under which the project is
undertaken which will require major revisions of the previous EIR or negative declaration
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified significant effects.” (Id., subd. (a)(2).) Finally,
additional environmental analysis is required when

       “[n]ew information of substantial importance, which was not known and
       could not have been known with the exercise of reasonable diligence at the
       time the previous EIR was certified as complete or the negative declaration
       was adopted, shows any of the following: [¶] (A) The project will have one
       or more significant effects not discussed in the previous EIR or negative
       declaration; [¶] (B) Significant effects previously examined will be
       substantially more severe than shown in the previous EIR; [¶] (C)
       Mitigation measures or alternatives previously found not to be feasible
       would in fact be feasible and would substantially reduce one or more
       significant effects of the project, but the project proponents decline to adopt
       the mitigation measure or alternative; or [¶] (D) Mitigation measures or
       alternatives which are considerably different from those analyzed in the
       previous EIR would substantially reduce one or more significant effects on
       the environment, but the project proponents decline to adopt the mitigation
       measure or alternative.” (Id., subd. (a)(3).)
       For the reasons explained below, we conclude Selma has failed to show the project
changed “as provided in [CEQA Guidelines] Section 15162.” (CEQA Guidelines,
§ 15050, subd. (c)(2).) Consequently, Selma has failed to show LAFCo was free to alter
Kingsburg‟s determination a mitigated negative declaration was appropriate. (See CEQA
Guidelines, § 15050, subd. (c).)
       B.     Water Issues
              1.      Background
       With respect to water supply, the MND indicated:

             “Water supplies within the area between the State Route 99 freeway
       and Golden State Boulevard will be provided by … Kingsburg. A 12-inch
       water main has already been extended in the western shoulder of Golden

                                              16.
       State Boulevard from the existing city limits to Amber Avenue capable of
       serving the entire area between the State Route 99 freeway and the railroad.
       Each property owner will be responsible for the cost of new service
       connections, including infrastructure improvements and the completion of a
       loop (tie-in) with a minimum eight-inch (8”) connection between the water
       main and a development project.

               “The industries east of the Union Pacific Railroad already provide
       for their own water supplies. The Vie-Del grape processing plant, Sun-
       Maid raisin plant and Guardian Industries glass plant each has two on-site
       water wells producing adequate supplies of high-quality water. The small
       triangular parcel fronting on Mountain View Avenue just east of the
       railroad tracks is also served by an on-site well. Eventually [Kingsburg]
       may provide water service to these properties at the request of the owners.”
       (Italics added.)
       However, Kingsburg‟s service plan for the Annexation Territory submitted to
LAFCo indicated:

       “Currently, the three industries that occupy all of the parcels within the
       subject territory have their own water systems. The Guardian Industries
       glass plant, Vie-Del grape processing facility and Sun-Maid Growers raisin
       plant each have two on-site water wells. Through an extra-territorial
       agreement with George and Lousie [sic] Alves, dba G & L Enterprises,
       13281 Golden State Boulevard, to extend a water main from Kamm
       Avenue to Amber Lane [sic]. Once the annexation has been approved
       ownership of the water main will transfer to [Kingsburg] and be made
       available for connection to all adjoining properties.” (Italics added.)
       In its appellate briefing,10 Kingsburg admits the description of the water main in
its service plan was incorrect because Kingsburg already owned the water main and the
water main had already been extended to serve the Annexation Territory.
       The executive officer‟s report to LAFCo dated April 10, 2013, repeats information
similar to the service plan:

       “Currently, the three industries have their own water systems. A water
       main will be extended from Kamm Avenue to Amber Lane. Once the
       annexation has been approved, ownership of the water main will transfer to
       [Kingsburg] and be made available for connection to all adjoining
       properties.” (Italics added.)

       10LAFCo   and Kingsburg filed a joint appellate brief.

                                               17.
       On July 8, 2013, Kingsburg‟s contracted city engineer provided city staff with
information concerning the water main. He explained the plans for the water line were
prepared by Kingsburg in 2008 and the water line had been in operation without water
supply issues since 2009. He also indicated the water line was supplied by three of
Kingsburg‟s municipal wells. Finally, he indicated the impacts of pumping groundwater
from municipal wells were being addressed pursuant to an agreement between Kingsburg
and the Consolidated Irrigation District, which provided for a recharge program.
       The executive officer‟s report dated July 17, 2013, corrected the April 10, 2013,
report‟s description of the water main as follows:

       “Currently, the three industries have their own water systems. A water
       main has been extended from Kamm Avenue to Amber Lane. The
       waterline is currently owned and operated by … Kingsburg and is available
       for connection to all adjoining properties. Water is supplied through …
       Kingsburg municipal wells. Industry wells do not and will not connect to
       the waterline. The pumping of groundwater from [Kingsburg] wells and
       the associated impact to groundwater has been addressed through the
       existing agreement between … Kingsburg and [the] Consolidated Irrigation
       District. This agreement provides a groundwater recharge program to
       offset groundwater pumping by … Kingsburg wells.” (Italics added.)
              2.     Analysis
                     (a)    Selma Has Not Shown a Substantial Change or Significant
                            New Information Under CEQA Guidelines Section 15162
       Selma contends the change in water supply analysis in the July 17, 2013, report
shows both a “substantial change” and “significant new information” presented to
LAFCo following the approval of the MND. We disagree.
       Selma describes the purported change as “the addition of municipal water
service.” But the possibility of providing municipal water service to the existing
industries in the Annexation Territory is not an “addition” to the project made after the
MND was adopted. With respect to the existing industries, the original MND noted
“[e]ventually [Kingsburg] may provide water service to these properties at the request of
the owners.” Because the MND acknowledged the possibility existing industries would

                                            18.
connect to municipal water supplies in the future, the potential of municipal water service
was not a change of circumstances.
       Neither was there any “new information” that would satisfy CEQA Guidelines
section 15162, subdivision (a)(3)(A)-(D). The MND stated “[a] 12-inch water main has
already been extended in the western shoulder of Golden State Boulevard from the
existing city limits to Amber Avenue capable of serving the entire area between the State
Route 99 freeway and the railroad.” (Italics added.) And the MND indicated Kingsburg
would provide water to the industries east of the railroad at their request. Therefore, the
fact existing industries might eventually be serviced by Kingsburg‟s water main is not
“[n]ew information of substantial importance, which was not known and could not have
been known with the exercise of reasonable diligence at the time … the negative
declaration was adopted ….” (CEQA Guidelines, § 15162, subd. (a)(3).)
       Selma next claims there is no basis for the conclusion the recharge program
contemplated by the agreement between Kingsburg and the Consolidated Irrigation
District would in fact offset extractions of groundwater. But even if true, this does not
constitute a change in circumstances or information since the adoption of the MND.
                     (b)    Water Code Sections 10910-10915
       Selma argues that even if connection to Kingsburg‟s water supply was indeed
contemplated by the MND, Kingsburg was required to prepare a water supply assessment
under Water Code sections 10910-10915.
       LAFCo first answers this contention by claiming “there was no contemplation of a
water connection.” This assertion is incorrect; the MND expressly acknowledges the
possibility of existing industries connecting to Kingsburg water should they choose to do
so.
       LAFCo next argues Selma failed “to raise this issue during or before the close of
public hearing” and therefore forfeited the issue pursuant to Public Resources Code
section 21177, subdivision (a). This response is also incorrect. In a letter to LAFCo‟s


                                            19.
executive officer dated April 9, 2013, Selma claimed the MND failed to address the water
supply despite the requirements of Water Code sections 10910-10915.
       Finally, LAFCo submits Water Code sections 10910-10915 do not apply because
the annexation is not a “project” under Water Code section 10912, subdivision (a). Water
Code section 10912, subdivision (a) defines a “project” for purposes of part 2.10 of
division 6 of the Water Code. That definition includes certain residential developments,
commercial office buildings, shopping centers, hotels, motels, etc. (Wat. Code, § 10912,
subd. (a).) Selma does not dispute the annexation does not fall under Water Code section
10912‟s definition of a project. Instead, it contends Water Code section 10910,
subdivision (b) actually uses CEQA‟s definition of a “project” rather than the Water
Code‟s definition. Consequently, Selma insists the project is “subject to the water supply
assessment requirements of [Water Code] § 10910(b) ….”
       Selma‟s contention is foreclosed by case law, which is clear that a water supply
assessment is required “[w]hen a proposed development is subject to CEQA, and it is
also a „project‟ within the meaning of Water Code section 10912 …. (Wat. Code,
§ 10910, subd. (b).)” (Citizens for Responsible Equitable Environmental Development v.
City of San Diego (2011) 196 Cal.App.4th 515, 523, italics added.)
       Moreover, “[t]he provisions of a statute should be construed in context and
harmonized whenever possible, and rendering some words surplusage is to be avoided.”
(Fig Garden Park No. 2 Assn. v. Local Agency Formation Com. (1984) 162 Cal.App.3d
336, 342.) Water Code section 10910, subdivision (a) provides that “Any city or county
that determines that a project, as defined in [Water Code] Section 10912, is subject to the
California Environmental Quality Act … shall comply with this part.” (Wat. Code,
§ 10910, subd. (a).) If we read subdivision (b) of Water Code section 10910 to also
require a water supply assessment for an action that was a project under CEQA but not a
project under Water Code section 10912, we would be effectively deleting “as defined in
Section 10912” from subdivision (a).


                                            20.
          Consequently, no water supply assessment was required under the Water Code.
          C.    Fire Protection Issues
                1.     Background
          According to Kingsburg‟s July 2012 service plan, the Annexation Territory was
then being served by the FCFPD from Station 83, with supplemental protection from
several agencies, including Kingsburg‟s Fire Department. Station 83 is directly across
from the Guardian Industries Corp. glass plant on Mountain View Avenue.
          With respect to the plan for fire protection services after annexation, the MND
stated:

          “The annexed area will be served by [Kingsburg]‟s fire department. …
          Kingsburg has determined that it has sufficient service capability to meet
          the fire and emergency response needs of the area. A transition agreement
          is in place between [Kingsburg] and the [FCFPD] that addresses financial
          impacts resulting from detachment from the [FCFPD]. Impacts on fire
          protection would be less than significant.”
          Sometime in 2013, an addendum to the MND was prepared. The addendum
indicated the transition agreement between Kingsburg and the FCFPD—which had
concerned the transfer of certain general ad valorem real property tax revenue affected by
annexations—had expired and a new agreement was not in place. The addendum asserts
the absence of a transition agreement “did not result in any new or increased impacts to
fire protection services for the Territory after annexation. Additionally, the … Kingsburg
Fire Department has sufficient capacity to service [the] Territory with both fire and
emergency services.”
          In a March 28, 2013, letter to LAFCo opposing the annexation, the FCFPD
explained it receives funding primarily through taxes levied on all property within the
FCFPD‟s boundaries. The FCFPD claimed that over the last 10 years, city annexations
had resulted in a funding loss of $5.5 million in property tax revenue. With respect to
this project, detaching the Annexation Territory from the FCFPD would cause the
FCFPD to lose $101,302 in annual funding. This would “equate[] to” a loss of two full

                                              21.
time paid firefighter positions at Station 83. This placed the station “at risk of being
closed,” which would “result in reduced emergency services to the Guardian Glass, Sun
Maid Raisin, and Vydell [sic] Winery facilities, an overall reduction in services
throughout the Fire District, as well as less support to the Cities ….”
         The March 28, 2013, letter indicated LAFCo‟s existing policies required cities
seeking annexation to have a transition agreement in place before an annexation would be
approved. The letter encouraged LAFCo to not change that policy. The letter also
indicated the FCFPD had offered “several transition agreement options” to Kingsburg,
but they were all refused.11
                2.     Analysis
         Selma argues the expiration of the transition agreement and “the consequent loss
of service from Station 83” are circumstances that developed after the application was
filed.
         Not every event occurring after adoption of a negative declaration requires an EIR.
The subsequent event must somehow involve a new significant environmental effect,
substantially increase the severity of previously identified effects, or show a mitigation
measure would substantially reduce one or more significant effects. (CEQA Guidelines,
§ 15162, subd. (a)(1)-(3).) Here, there is no evidence the anticipated change in fire
protection would meet any of these substantiality requirements.


         11In its statement of facts, Selma claims the chief of Kingsburg‟s Fire Department
testified at a city council hearing that Kingsburg “could not provide fire protection services
without Station 83 ….” First, the citation Selma offers in support of this assertion is from the
record in a separate appeal, City of Selma v. City of Kingsburg (F071156, app. pending).
Moreover, the cited document does not say what Selma claims it does. And the audio recording
of the hearing (also from the record in case No. F071156) indicates Chief Ray did not offer such
testimony. Chief Tim Ray stated that “regardless of whose area [i.e., the Annexation Territory]
that actually is, I don‟t believe that our response to that area is going to be any different whether
it‟s Fresno County‟s or if it‟s the City of Kingsburg. We both have an engine that‟s staffed.”
Chief Ray acknowledged large fires could require additional resources, but that would also be
true if the FCFPD were responding. Chief Ray said, “In my opinion, I don‟t see this annexation
changing the fire response in any way.”

                                                 22.
       Kingsburg‟s position was the annexation would cause no significant impact on fire
protection because Kingsburg could provide adequate fire protection to the Annexation
Territory on its own. Selma cannot attack that conclusion by insisting there is evidence
Kingsburg would not have the help of the FCFPD or Station 83. Indeed, the entire point
is that Kingsburg concluded it could service the area adequately on its own. If Selma
wanted to successfully challenge that conclusion, it needed to point to substantial
evidence supporting a fair argument the level of fire protection Kingsburg would provide
on its own may cause significant environmental impacts. It has not done so.
       Selma‟s argument also briefly references “new information concerning Guardian‟s
expansion,” but then immediately goes on to describe purported new information
concerning the provision of water. It does not explain how any new information
concerning Guardian Industries Corp. satisfied the conditions of CEQA Guidelines
section 15162, subdivision (a).

III.   Selma Has Failed to Show LAFCo Prejudicially Abused its Discretion*
       A.     Standard of Review
       A LAFCO annexation determination is a quasi-legislative act subject to judicial
review under the ordinary mandamus provisions of Code of Civil Procedure section
1085. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489,
495.) A party may seek to set aside the determination of a LAFCo on the grounds it
violated the Reorganization Act. (§ 56107, subd. (c).) In such an action, courts may only
inquire as to “whether there was fraud or a prejudicial abuse of discretion. Prejudicial
abuse of discretion is established if the court finds that the determination or decision is
not supported by substantial evidence in light of the whole record.” (Ibid.) “[N]o
resolution adopted by the commission making determinations upon a proposal shall be
invalidated because of any defect, irregularity, or omission in any act, determination, or



       *See footnote,   ante, page 1.

                                             23.
procedure which does not adversely and substantially affect the rights of any person, city,
county, district, the state, or an agency or subdivision of the state.” (§ 56107, subd. (a).)
       B.     Analysis
              1.      Even When a LAFCo’s Resolution Approving an Annexation
                      Does Not Articulate Reasons for its Determinations, Reversal of
                      those Determinations Is Not Warranted Unless the
                      Administrative Record Fails to Show the Reason and Basis for
                      the Determinations
       Selma first argues LAFCo‟s resolution approving the annexation does not
articulate any reason for its determinations. However, while it is preferable for a LAFCo
to formally enter a statement of reasons in its resolution, it is not “essential.” (McBail &
Co. v. Solano County Local Agency Formation Com. (1998) 62 Cal.App.4th 1223, 1230.)
Instead, it is the administrative record that must show “the reason and basis for” the
LAFCo‟s decision. (Ibid.; see § 56107, subd. (c).)
              2.      LAFCo Policy 210-08 Provides for Minimization of Peninsulas in
                      Agency Boundaries; It Does Not Outright Prohibit Them
       Selma argues that, under LAFCo Policy 210-08, boundaries “must” avoid the
creation of peninsulas, corridors, and other distortions. That is incorrect. Under LAFCo
Policy 210-08, proposed boundaries are to “minimize creation of peninsulas and
corridors, or other distortion of boundaries ….” (Italics added.) LAFCo‟s executive
officer‟s report determined that in evaluating whether to approve a peninsula, “regional
context should be considered that takes in to [sic] account the effect of major
transportation routes and the city‟s general plan.” The report further observed Fowler,
Selma and Kingsburg all have spheres of influence elongated near State Route 99 due to
“street visibility for marketing, impact of traffic (noise, activity, odors, dust) on sensitive
land uses making it more viable for heavy commercial and industrial uses and access to
adjacent railroad.” Consequently, the report concluded the “logic of growth along the
corridor” had been demonstrated.



                                              24.
                3.    Purported Corridors Along State Route 99 in Selma and Fowler
        Selma claims, along State Route 99, “[t]here is no corridor in either Selma or
Fowler.” It offers no citation to the record in support of this assertion and has thereby
forfeited it.
        Moreover, the executive officer‟s report identified several considerations
supporting the creation of elongated boundaries along State Route 99 (e.g., street
visibility for marketing, traffic impacts, etc.). These considerations retain their force
even if other cities, in fact, did not have corridors.
                4.    Irregularity of Annexation Territory’s Shape
        Selma observes Fresno County had “originally noted” the Annexation Territory
was “extremely irregular.” But substantial evidence review does not permit reversal
merely because “other substantial evidence would have supported a different result.”
(Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1208.) In other words, it
is irrelevant that LAFCo may have been justified in denying Kingsburg‟s application on
the grounds the proposed boundaries were irregularly shaped. So long as there is
substantial evidence supporting what the LAFCo actually determined, it must be upheld.
(See § 56107, subds. (b)-(c).) Here, LAFCo reasonably concluded the proposed
boundaries were a logical reflection of considerations pertaining to State Route 99. We
find no prejudicial abuse of discretion in that determination, even though there was some
evidence the boundaries were irregular.
                5.    Purported Kingsburg Resolution
        Selma observes LAFCo‟s executive officer referenced a purported Kingsburg
resolution indicating the annexation application “„confined its area requested to that area
needed to include the substantial development and create logical boundaries.‟” Selma
contends no such resolution exists. We find this argument irrelevant on substantial
evidence review. LAFCo made its own determination the boundaries were logical. And
that determination was supported by substantial evidence, even without the purported
Kingsburg resolution described by the executive officer.

                                              25.
              6.     Adequacy of Plan for Water Service
       Selma contends there was no adequate plan for providing water service in the
Annexation Territory. We disagree. The service plan indicated the Guardian Industries
Corp. glass plant, Vie-Del Company winery facility, and Sun-Maid Growers of California
raisin plant each have two on-site water wells. It also indicates those industries will have
the option of connecting to a water line following annexation.
       Selma then offers a similar, yet qualified, argument that “[t]here is no solid
indication of how services are to be provided at least not one that is consistent with the
other indications provided by this same source, Kingsburg.” (Italics added.) This
contention does not survive substantial evidence review. We are only concerned with
whether the LAFCo‟s determination is “supported by substantial evidence in light of the
whole record.” (§ 56107, subd. (c).) As described above, the service plan and contract
city engineer‟s analysis supply substantial evidence here. Conflicts in the evidence do
not warrant reversal on substantial evidence review.
       LAFCo asserts the service plan‟s reference to the future transfer of the water main
was a mistake. Selma offers a different view: that the service plan‟s reference to a future
transfer was not a mistake and that a water main to service the existing industries had in
fact not been extended at that point. But substantial evidence review does not permit
reversal merely because there is evidence to support both sides. Indeed, it often
precludes reversal in such circumstances. Given the explanations provided by
Kingsburg‟s contracted city engineer, there was substantial evidence supporting LAFCo‟s
implied conclusion the service plan‟s reference to a future transfer of the water main was
a mistake. “While there is some conflict in the evidence on some of the issues before
LAFCO, there is substantial evidence to support its conclusions …. This court‟s power
begins and ends with that determination.” (Meyers v. Local Agency Formation Com.
(1973) 34 Cal.App.3d 955, 961.)
       Selma contends the contracted city engineer‟s analysis cannot constitute
substantial evidence because it was hearsay. However, Selma offers no authority the

                                            26.
hearsay rule applies to a LAFCo‟s quasi-legislative determination to approve an
annexation. (See Evid. Code, § 300 [Evid. Code applies to actions before the Supreme
Court, courts of appeal, or superior courts and proceedings in such actions conducted by
other officers].)
               7.    Repeal of Design Standards
       At various points in its opening brief, Selma discusses the fact Kingsburg repealed
its design standards applicable to the Annexation Territory. However, Selma‟s opening
brief does not offer a developed argument supported by citations to authority as to how
the repeal of the design standards satisfies CEQA Guidelines section 15162 or otherwise
warrants reversal. Moreover, Selma‟s discussion of the design standard repeal relies on
the record from a separate appeal, City of Selma v. City of Kingsburg (F071156, app.
pending).
               8.    Addendum
       Selma claims the purported addendum issued by Kingsburg concerning the
expiration of the transition agreement was not a valid CEQA document. For example, it
was not considered with the final MND prior to Kingsburg making a decision on the
project. (See CEQA Guidelines, § 15164, subd. (d).) But even if the addendum was not
a valid CEQA document, that does not mean the LAFCo was precluded from considering
it. To the contrary, we are precluded from disturbing a LAFCo determination so long as
there is no fraud and it is supported by substantial evidence in light of the “whole”
record. (§ 56107, subd. (c).) The addendum provided information contemplated by
LAFCo policy concerning the absence of a transition agreement. The LAFCo was
permitted to consider it for that purpose even if it was not a valid CEQA document.
               9.    Sphere of Influence
       Selma next submits there is no substantial evidence supporting LAFCo‟s
determination the annexation is consistent with Kingsburg‟s sphere of influence. It



                                            27.
argues the Kingsburg sphere of influence relied upon by LAFCo is void because it spans
across two counties.
         A “sphere of influence” is a “plan for the probable physical boundaries and service
area of a local agency” as determined by a LAFCo. (§ 56076.) Accordingly, the sphere
of influence for Kingsburg should reflect its “probable physical boundaries and service
area.”
         A city may not annex territory in another county. (See County of San Mateo v.
City Council (1959) 168 Cal.App.2d 220, 221-224.) As a result, a city‟s “probable
physical boundaries” (§ 56076) will never include territory in another county. However,
a sphere of influence is not limited to an agency‟s probable physical boundaries—it also
includes the agency‟s “service area.” (§ 56076.) Here, there was evidence in the
administrative record that Kingsburg “provides water service” to properties in Tulare
County via service agreements with Tulare County and private land owners. A strong
argument can be made that while Kingsburg‟s “probable physical boundaries” could not
include portions of Tulare County, its “service area” can. However, we need not decide
this issue because Selma has not shown prejudice, even if the sphere of influence was
improper.
         In order to set aside a LAFCo determination on the basis of a “defect, error,
irregularity or omission,” prejudice must be shown. (§ 56107, subd. (a).) We do not see
how the alleged error asserted by Selma is prejudicial. Regardless of whether it is ever
permissible for a sphere of influence to span two counties, the actual annexation
approved here involved an area wholly within a single county. Even if LAFCo
determined the annexation was compatible with an invalid sphere of influence, it has not
been shown the rights of any county, city or person were “adversely and substantially”
affected thereby. (§ 56107, subd. (a).)




                                              28.
              10.     Selma Crossings Project
       Finally, Selma asserts its own development project called Selma Crossings
“requires major rehabilitation of the interchange at 99 and Mountain View.” It contends
“[i]f the fourth corner of Highway 99 and Mountain View are annexed to Kingsburg,
Selma lacks jurisdiction or authority over the fourth corner of the interchange that it
needs to rebuild. Accordingly, the development would require Kingsburg‟s participation
which is not forthcoming.” Not a single one of these statements is supported by citation
to the record, and we will therefore not consider this argument. (See Placer County
Local Agency Formation Com. v. Nevada County Local Agency Formation Com., supra,
135 Cal.App.4th at p. 814 [court would not consider factual assertions not supported by
citations to the record].)
                                      DISPOSITION
       Affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 __________________________
KANE, Acting P.J.


 __________________________
DETJEN, J.




                                             29.
