464 P.3d 1127
Or. Ct. App.2020Background
- In 2016 the legislature enacted SB 1573 (now ORS 222.127), which provides that when certain criteria are met (land inside an urban growth boundary, subject to the city’s acknowledged comprehensive plan, contiguous, and conforming to city ordinances), the city legislative body “shall annex” the territory without submitting the proposal to the city’s electors.
- Corvallis and Philomath filed a declaratory judgment action arguing ORS 222.127 violates the Oregon Constitution’s home‑rule provisions (facial and as‑applied challenges); both cities have charter provisions requiring voter approval of annexations, each stating annexations are allowed "unless mandated by state law."
- After DLCD sent notice of new land‑use legislation and annexation petitions were filed with Corvallis, the cities sued; the trial court struck 11 post‑hoc declarations offered by plaintiffs, granted the state defendants’ summary judgment, and denied plaintiffs’ cross‑motions.
- On appeal the court affirmed the trial court’s rulings on the merits: ORS 222.127 is not facially unconstitutional and is not unconstitutional as applied to Corvallis and Philomath because their charters permit state‑mandated annexations; any error in striking declarations was harmless.
- Because the trial court’s judgment did not include declaratory findings, the appellate court vacated and remanded for entry of a judgment that declares the parties’ rights consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial validity of ORS 222.127 under home‑rule | ORS 222.127 impermissibly interferes with municipal procedures and is facially unconstitutional | The statute can constitutionally apply to at least some cities (so not facially invalid) | Not facially unconstitutional; capable of constitutional application to cities whose charters do not conflict |
| Ripeness/as‑applied challenge (need for enforcement) | DLCD notice and annexation petitions suffice to bring an as‑applied challenge | No executive enforcement action has occurred; plaintiffs lack the prerequisite to an as‑applied challenge | As‑applied challenge not ripe for lack of enforcement; petition filings and DLCD notice do not substitute for enforcement |
| Admissibility of post‑hoc declarations offered to interpret charter intent | Declarations from voters and a former deputy city attorney demonstrate the charter intent and should be considered as legislative history | Declarations are irrelevant, hearsay, lack personal knowledge, and are not useful legislative history | Trial court did not err in effect; even if exclusion erred, error was harmless and would not change disposition |
| Interpretation of city charters’ "unless mandated by state law" clause and delegation concerns | The clause should be narrowly read (e.g., only health‑hazard annexations); allowing ORS 222.127 would be improper delegation/prospective delegation or let the exception swallow the rule | Plain charter text permits state‑mandated annexations; precedent treats similar clauses as allowing state‑mandated annexations without conflict | The clause means state‑mandated annexations (including under ORS 222.127) do not conflict with the charters; no improper prospective delegation; plaintiffs’ remedy is to amend or invalidate their charters |
Key Cases Cited
- Hunter v. City of Pittsburgh, 207 U.S. 161 (establishes municipalities are creations of the state and subject to state authority)
- La Grande/Astoria v. PERB, 281 Or. 137 (articulates two‑part home‑rule test: laws addressing local structure/procedure must be justified; general laws prevail)
- Pieper v. Health Division, 288 Or. 551 (charter language allowing annexations “mandated by state law” does not conflict with state‑mandated annexations)
- Mid‑County Future Alternatives v. City of Portland, 310 Or. 152 (charter language can permit legislative alteration of municipal borders; leaves open broader question but enforces charter text)
- Thurber v. McMinnville, 63 Or. 410 (annexation is an extramural power derived from the state)
- Costco Wholesale Corp. v. City of Beaverton, 343 Or. 18 (distinguishes intramural vs extramural municipal authority)