Watering the Grassroots of Oregon’s Land-Use System:
Oregon Communities for a Voice in Annexations

By Kevin Frostad
Vice Chairman, OCVA

It all started with the trees. A Goal 5-protected stand of white oaks on Neabeack Hill in Philomath, a small Willamette Valley town just west of Corvallis

In the early ‘90s, a Philomath City Councilman arranged to add five words to the city’s comprehensive plan that allowed a subdivision to be developed on the parcel even though this violated land use law and Philomath's comprehensive plan. Later, that person went on to join the city’s Planning Commission (this person was a realtor). The Planning Commission and City Council were packed with real estate development interests. While individually disqualifying themselves when their own parcels were involved, they collectively "swapped votes" with other like-minded officials to their mutual advantages. Thus, the making of public policy for private profit, business-as-usual in the real estate development industry, was the order of the day in Philomath.

The Oregon Government Standards and Practices Commission in Salem is understaffed and operates with a minimal budget. The statutes that they administer have no real teeth. Redress was not available from the state. Besides, the fact is, the government in Philomath didn’t frequently violate the letter of the laws as they were then and, to a large extent, as they are now. But, they certainly did do injustice to the moral and ethical framework by which they were expected to operate as public officials.

Ninety-eight percent of the people in Philomath didn’t want Neabeack Hill developed. At public hearings citizens' testimony was "lost" when the tape recording machine conveniently malfunctioned. The subdivision development was approved by the Planning Commission and then appealed to the City Council which was subsequently denied. A lawsuit was filed against the City and LUBA remanded it back, which the Council ignored. The case then went to the court of appeals and a recall attempt of the Mayor and three Councilors failed. However, a political backlash resulted. A citizens group formed a PAC called the Committee for a Voice in Annexations with the objective of changing the city’s charter so that, in the future, citizens would have a meaningful voice in the process by voting on annexations.

In every legislative session, bills are introduced to freeze-out the public from the land use process. They usually seek to eliminate or limit who has "standing" as to who can testify at land use hearings. Another favored objective is to speed up the land use review process. This has led to citizen cynicism and apathy about the process because they feel there is really no way they can be effectively involved. This feeling is very dangerous for democracy.

Philomath’s city charter was changed in May of 1995 by a 78% to 22% margin of support. City officials refused to acknowledge the charter change, and essentially indicated that they were going to do whatever they wanted to do, and if the citizens didn’t like it, they could sue. A second citizens’ initiative was filed that prohibited the city from extending water and sewer lines into the urban growth boundary without a prior vote of the people. That charter change passed in May of 1996. Thus, two charter changes were passed on essentially the same issue within the space of one year. Ultimately, the citizens’ group had to sue the city in circuit court in order to force them to comply with the mandates of the newly changed charter.

These events in Philomath catalyzed a mutual recognition of common problems with other Oregon cities. By the fall of 1996, three other cities (Newberg, McMinnville, and Sisters) had changed their charters to require voter approval of annexations.

The real estate development and building industries then declared war on Home Rule, the system of self-government that is legislatively granted to most of Oregon’s 243 cities. In 1997 they attempted, with the assistance of the Governor and the Department of Land Conservation and Development, to convince the Legislature to invalidate existing voter annexation charter changes and make it illegal for any other cities to enact similar changes in the future. Senate Bill 1137 was introduced, and the fight was on!

Oregon Communities for a Voice in Annexations (OCVA) was formed in December of 1996 in self-defense in order to protect the rights of citizens who had worked hard, in good faith, to change their city charters. The OCVA’s mission was defined as "protecting and promoting citizen involvement in land use issues." All of the political pundits gave the OCVA zero chance of prevailing against the Association of Oregon Realtors, the Oregon Building Industry Association, Governor Kitzhaber, and the DLCD. It was truly a David and Goliath battle that lasted for seven months. The OCVA had no lawyers, no lobbyists, no big campaign contributors or money, but, they did have the Courts and local control (Home Rule) on their side.

The OCVA also had a very important thing on its side, something that is revered nationwide. That was the fact that Oregon has the best land use system in the country. The cornerstone of that process is Goal #1, Citizen Involvement.

The first Oregon city to change its charter to require a vote on annexations was Corvallis in 1977. That action was challenged in the courts (Stewart vs Corvallis (1980) and Heritage Enterprises vs Corvallis (1985)). Through the appeals process, the litigation proceeded to the Oregon Supreme Court. The high court decision held that there were "two shoes" to land use policy in Oregon. One is statutory. That is, elected officials consider state law, local ordinances, and zoning to make quasi-judicial decisions. The other "shoe" is political. That voters can consider "political" matters is constitutional because of the significant impacts that growth can have on any given community.

Whatever the issue today-- overcrowded schools, environmental degradation, road rage, increasing water-sewer rates and property taxes-- they all have one common denominator: the rampant, out-of-control growth that is occurring in a large portion of our state is ruining our quality of life in Oregon. It is also threatening our ability to maintain public services.

Cities have not been able to keep pace with the infrastructure needed to accommodate the growth rate. Citizens have developed a cynical attitude about this process, so they have resorted to Oregon’s "fourth branch of government," the initiative petition. Born in 1895 as a reaction to legislative corruption, it is what The People resort to when they feel that Salem is not taking care of business. The vote-on-annexation debate has been a part of this reaction. Several issues have been articulated very well along the way. Voting on annexations is only the tip of the iceberg. The issues behind voter annexation are the real story.

The 1989 Systems Development Act was watered-down at the behest of the building industry so that growth’s fiscal impact on schools, police and fire protection, and libraries was removed as criteria for assessing development impact fees. When parents attend Planning Commission or City Council hearings on development applications and express concerns about school capacity, they are told, "We can’t talk about that!" That seems crazy to them. During the legislative battle over voting on annexations this situation was a strong argument for proponents. The fact that impact fees are wholly inadequate was another. People felt forced to comply with the subsidizing of increased traffic, more crime, further overcrowding of schools, all without the benefit of expected property tax reductions. Communities were, in effect, committing collective suicide while watching their quality of life crumble, and paying to do so.

State-sponsored initiatives such as the Strategic Investment Program, designed in the 80s as a response to dislocations in the timber industry, have been misused to draw multinational corporate expansion into existing population centers via huge tax giveaways. These incentives require large infrastructure extensions (water, sewer, electricity, roads, etc.). They also devour farmland, forests, and wetlands. Citizens feel that they are giving it away on both the front and back ends.

During the '97 legislative debate on SB 1137 (and another incarnation, SB 500), citizens from all over the state and from all walks of life showed up in Salem. Many elected officials, city administrators, and Planning Commissioners expressed their displeasure at the proposed suspension of Home Rule. If this were allowed for annexations, the precedent would be set by which Salem could dictate its wishes to communities on a host of other local issues. Citizen Involvement, the lynchpin of Oregon’s land use system, was in danger of being swept away.

The defenders of votes on annexations lost in the Republican-dominated State Senate. With help from 1000 Friends of Oregon and the League of Women Voters, the OCVA and their supporters made an impassioned argument in the Oregon House of Representatives that people have a right to be involved in the destinies of their own communities. As the House debate intensified something interesting happened. Citizens became convinced that there was something they could do in defense of their rights. Apathy and cynicism faded away. The public appeared to testify in droves. Telephone calls, letters, e-mails and faxes arrived by the truckload. We also had many of the state's leading newspapers come out in support of the will of the voters and home rule.

The battle raged hot and heavy until 9 p.m. on July 5, 1997 when the offensive bill was finally defeated. The Legislature adjourned, and two years’ time was secured so that other Oregon cities might conduct debates on the merits of voting on annexations in their communities. More citizens had the opportunity to ask, "Who benefits? Who’s paying? How much growth do we have to take? Is there anything we can do to regain control of our communities?"

The political firestorm ignited by the vote-on-annexation debate stimulated Governor Kitzhaber to appoint a special task force to study the impacts and assess the benefits versus the costs of growth in Oregon. When the task force was convened in April 1998 the OCVA, unlike the Builders and the Realtors, was not invited to sit at the table. However, major political policymakers like Vera Katz, Mike Burton, and Julie Hammerstad did participate. Initially, public involvement was designed to be kept to a minimum, but the process was soon out-of-containment. The task force ended up holding statewide public hearings to receive citizen input at the request of OCVA. The task force’s report was issued in January 1999. Containing many valuable insights, the report concluded that, "Business, civic, and government leaders must constructively respond to growing citizen concerns about growth-related issues and quality of life in communities. The intensity of concern has reached the point that failure to act may jeopardize Oregon’s land use planning program and the economic future of the state."

Oregon’s 1999 Legislative Assembly finally ground to a halt last July 24^th. Characterized by 1000 Friends of Oregon as "the worst Legislature in the history of Oregon’s planning program," the session once again saw the introduction of legislation proposed to invalidate existing vote-on-annexation charter changes and to make any such changes illegal in the future (HB 3389, introduced by Rep. Ryan Deckert D-Beaverton). That this legislation died in committee was due, in large part, to the outpouring of citizen indignation that followed its introduction.

Along with this victory for the OCVA, there followed a bitter legislative defeat. The OCVA’s main legislative agenda in the ’99 Session was its support for legislation that would have indemnified citizens who testify in government hearings against being subjected to frivolous lawsuits designed to stifle public involvement. Known as SLAPP suits (i.e., Strategic Lawsuits Against Public Participation), this form of legal and economic terrorism is a nationally recognized problem. The issues involved go right to the heart of Americans’ constitutional First Amendment right to petition government.

In concert with the DLCD, Rep. Kurt Schrader, D-Canby, introduced anti-SLAPP suit legislation in the form of HB 2805. Thousands of citizens as well as most of the newspaper editorial pages in the state supported the bill. After harrowing public testimony documenting the problem in Oregon, HB 2805 was overwhelmingly passed out of the House on a 49 to 9 vote.

It was at this point that the development interests, fearing the loss of their ability to sue their opponents into silence, contacted their ally Senate Judiciary Committee Chairman Neil Bryant (R-Bend). Chairman Bryant was more than happy to gut the anti-SLAPP suit legislation before putting it on the floor, where the Republican majority voted to table it for the duration of the session, effectively killing it. OCVA will work to build a bipartisan political coalition to pass anti-SLAPP suit legislation in the upcoming 2001 session.

As of now 30 Oregon cities, over ten percent of the total (243 cities) and representing almost 500,000 citizens, has enacted charter changes requiring voter approval of annexations. OCVA has membership in 52 Oregon cities.  In May of 2000, Salem, at 130,000 people, became the largest city to date to approve an annexation charter amendment.

New grassroots organizations like Alternatives to Growth Oregon (which focuses on the larger underlying issues of population and consumption growth versus sustainability) have entered the fray. Professional analyses documenting the publicly subsidized costs of growth in Oregon are beginning to appear. Concerned citizens are muscling their way back into the land use debate in ever more sophisticated ways. All across the country, from California to Maine, newspaper headlines reflect citizen’s concerns over rampant growth. It is not just a red-hot political issue for Oregon. As the 21^st century begins, the table has been set for a healthy and vigorous debate as to what the shape of Oregon’s future will be.

This page last modified on 2005-09-19 08:39.