City of Cupertino v. City of San Jose

DRAPER, J.

This action arises from intercity competition for the right to annex uninhabited territory.

Cupertino’s city council, by resolution of May 12, 1958, proposed to annex territory designated as Bubb Number 1. Fifteen days later the San Jose City Council adopted a like resolution relating to substantially the same uninhabited territory, which it designated as Stelling Number 1. Cupertino, on July 21, 1958, terminated its proceeding because of its failure to obtain the consent of certain owners of land zoned exclusively for agricultural purposes (“greenbelted”) which consent is a required condition to annexation (Gov.

[31]

Code, § 35009). San Jose continued through protest hearing, but terminated its proceedings September 22, when the council, by resolution, determined that owners of more than half the value of the lands involved protested the annexation (Gov. Code, § 35313).

With the feline tendency of annexation proceedings to enjoy multiple lives, Bubb and Stelling soon revived. Cupertino, on November 3, submitted to the county boundary commission a proposal to annex substantially the same land, now termed Bubb Number la, and commission approval issued November 17. On the same day, the San Jose council adopted a resolution of intention to annex the same area, now termed Stelling Number 2. Cupertino proceeded no further, but San Jose went through all necessary steps to and including adoption of its ordinance approving annexation. Cupertino then filed this action seeking writs of mandate and certiorari to prevent San Jose’s taking the final annexation step, filing a certified copy of the annexation ordinance with the Secretary of State. Alternative writs issued. San Jose’s general demurrer was sustained, the alternative writs were discharged, and the proceeding dismissed. Cupertino appeals.

Cupertino contends that the Stelling Number 2 annexation by San Jose is invalid because commenced less than two months after the resolution finding that a majority protest had been made against Stelling Number 1, thus violating the requirement (Gov. Code, § 35007) of a waiting period of one year. San Jose argues that section 35007 does not apply because its council made no attempt to terminate the proceedings before the protest hearing (see Ops. Atty. Gen. 28, 32). We find it unnecessary to determine this issue, since we have concluded that Stelling Number 1 was void because commenced during the pendency of Cupertino’s Bubb Number 1 proceeding.