Introduction:Mike Hammonds, an active member of the Committee for the Future of Damascus, has filed an appeal to the Oregon State Land Use Board of Appeals (LUBA) to contest Happy Valley’s recent annexation of Rock Creek properties. He asked for the Rock Creek CPO’s participation in this case. We chose to support this effort by a process known as “intervening”. An attorney
will present our reasons to LUBA stating why some Rock Creek residents feel Happy Valley incorrectly preceded in their annexation methods.
The following is a condensed
version of a presentation for the CPO at the
August meeting by its Vice Chairperson
discussing the appeal and the CPO's potential
involvement with some information reflecting
other member's concerns added: Background:Happy Valley and the Committee for the Future of Damascus sent out a survey to Rock Creek residents last year asking whether they preferred joining Happy Valley or Damascus. Happy Valley reported an even split in the results with a random mix of the locations spread around the community.
Happy Valley and the Committee for the Future of Damascus entered into a joint agreement called a “Memorandum Of Understanding” (MOU), choosing the imaginary line of 177th Avenue as the boundary defined for the Damascus’ incorporation request. (This MOU was signed by the Rock Creek CPO)
Subsequently, Happy Valley solicited annexation petitions from about 600 property owners in the Rock Creek area. About 170 of those people submitted applications
requesting to annex to Happy Valley.
On June 28th, Happy Valley conducted a hearing on the annexation issue, and their City Council accepted the annexations.
The CPO testified at the hearing, requesting a delay in the annexation, because the CPO had received concerns that residents were not mailed adequate information by Happy Valley to make an informed annexation decision. By commenting at the hearing, the
CPO has the right to “intervene” on behalf of landowners as part of the LUBA appeal.
LUBA Appeal Decision Guidelines:The general rule is that LUBA cannot consider evidence that was not considered by the local decision makers. The only evidence that LUBA can consider is the evidence already in the record of the decision.
LUBA cannot overturn a decision merely because the LUBA Board Members disagree with the decision or think it is unwise. The legislature has listed the types of reasons for overturning an appealed decision. The reasons include:
a. The local officials failed to follow the correct procedures in making the decision, and the procedural error deprived the Petitioner of a substantial right. [NOTE: Petitioners' "substantial rights" are the rights to a reasonable opportunity to prepare and submit their cases and a full and fair hearing, not the right to a particular outcome.]
b. The decision violates a constitutional guarantee, a state law (e.g., statute, statewide planning goal) or a local law (e.g., comprehensive plan policy, zoning ordinance).
c. The land use decision is not supported by "substantial evidence in the whole record;"
[NOTE: By law, local decision makers can choose which evidence they wish to believe, so long as the evidence they rely on is "substantial evidence." Substantial evidence is evidence that a reasonable person could rely on to support a conclusion.]
Possible Justifications in Favor of CPO Action
1. Some Rock Creek CPO area residents requesting annexation feel they were under-informed.
| a. The following comment stated in
Happy Valley's annexation request letter confused some residents.
“…We hope that you will take this no-fee opportunity – a potential saving of $1,350 per tax lot or parcel – to become a part of Happy Valley by completing the Petition to Annex for each Tax Lot of your property, and returning the petition(s) to City Hall by December 5, 2003.”
b. Taxes, and any fees or levies beyond the
base tax rate, due annexing properties were not mentioned in letters to
residents.
i. Oregon Statute 222.175 excerpt: … the city shall, upon request, provide to those electors and owners information on that city’s ad valorem tax levied for its current fiscal year expressed as the rate per thousand dollars of assessed valuation, a description of services the city generally provides its residents and owners of property within the city.
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2. The annexations accepted by Happy Valley allowed the city to also annex petitioner’s streets.
Some residents feel the street annexations may legally be used to prevent remaining residents west of 177th from annexing to Damascus, if it is incorporated.
| a. Some feel this action represents a “territory” annexation, which requires a majority vote of the unincorporated area.
i. Oregon Statute 222.111(6) excerpt:
The …city shall submit… the proposal for annexation to the electors of the territory proposed for annexation…
ii. Happy Valley has denied any intent to “cherry stem” annex properties
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3. Various procedural issues questionably
processed in the annexation process.
Possible Justifications Against CPO Intervention
1. Do the majority of Rock Creek land owners
support this intervention? 2. What affect does
the intervention have on Rock Creek land owners
that want annexation? 3. Will the intervention
alienate our CPO relationship with Happy Valley
officials?
4. Will intervention appear to recommend
annexation to Damascus?
- Damascus citizens may not vote in favor of incorporating a city anyway.
5. Who will pay attorney expenses?
I have chosen, and condensed, what I believe to be the applicable materials for this presentation representing the objections expressed by some property owners in our community. I have attempted to be impartial in doing so, although the presentation is intended to demonstrate possible objections, reasons, and evidence, as to why this important issue should be carefully considered by our membership.
Respectfully submitted by:
George Allen
Rock Creek CPO Vice Chair
After engaging in a
thorough discussion of this subject, the CPO
membership in attendance voted to intervene in
the LUBA annexation appeal. |