Petitioners 1 seek review of a Land Use Board of Appeals order affirming the City of Beaverton’s decision to annex certain “island” territory pursuant to ORS 222.750. Petitioners advance a number of assignments of error, most of which were not adequately preserved below. We reject all оf petitioners’ assignments of error and affirm. We write only to address petitioners’ argument that ORS 222.750 violates their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Over a period of years, the City of Beaverton annexed streets and highway rights-of-way near the interchange of Highway 26 and Highway 217. As a result, the city’s boundaries surround or nearly surround large areas of urbanized and unurbanized land within Washington County. In November 2004, the city initiated proceedings to annex some of this surrounded, or “island,” territory pursuant to ORS 222.750. That statute allows a сity to annex territory that is surrounded by the corporate boundaries of the city, or by the city and a body of water, without the consent of residents or property owners within the territory. 2
After initiating annexation proceedings, the city provided notice to property owners within thе subject territory and conducted a public hearing. No election for the affected landowners was held. Ultimately, the city adopted Ordinance 4334 on January 3, 2005, which annexed the subject territory. Petitioners, who allege that they own property in the *434 subject territory, apрealed to LUBA. LUBA affirmed the city’s decision, and this petition for judicial review followed.
On review, petitioners contend — among other things — that LUBA erred in rejecting their argument that ORS 222.750 violates their rights under the Equal Protection Clause of the Fourteenth Amendment.
3
We review LUBA’s determination on thаt issue for errors of law. ORS 197.850(9)(b);
Corp. of Presiding Bishop v. City of West Linn,
The Fourteenth Amendment provides, in part:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Under Fourteenth Amendment equal protection jurisprudence, a statute that differentiates on the basis of a “suspect” classification or a classification that infringes upon a fundamental right is subject to heightened scrutiny. Conversely, a statute that does not differentiate based on a suspect class or a classification that infringes upon a fundamental right is subject to “rational-basis” review.
Heller v. Doe,
At the core of petitioners’ equal protection argument is the premise that ORS 222.750 unconstitutionally deprives residents and property owners in “island” territories of thе *435 fundamental right to vote on annexations. According to petitioners, that fundamental right cannot be infringed upon in the absence of a “compelling state interest.” Petitioners’ argument stumbles from the outset, however, because there is no fundamental right to vote on municipal annexations.
In
Mid-County Future Alternatives v. City of Portland,
Although the precise nature of thеir argument is unclear, petitioners also appear to contend that, regardless of whether there is a fundamental right to vote on annexation, *436 once the state has granted that right to some property owners, that right cannot be denied to other property owners. Specifically, petitioners contend that the right to vote is granted to residents and property owners in non-“island” territories by ORS 222.111(5). That statute provides:
“The legislative body of the city shall submit, except when not required under ORS 222.120, 222.170 and 222.840 to 222.915 to do so, the proposal for annexatiоn to the electors of the territory proposed for annexation and, except when permitted under ORS 222.120 or 222.840 to 222.915 to dispense with submitting the proposal for annexation to the electors of the city, the legislative body of the city shall submit such proposal to the elеctors of the city. The proposal for annexation may be voted upon at a general election or at a special election to be held for that purpose.”
(Emphasis added.)
We rejected an argument similar to that of petitioners in
Sherwood School Dist. 88J v. Washington Cty. Ed. Service Dist.,
Ultimately, we concluded that the plaintiffs read
Kramer
and
Hussey
too broadly.
Id.
In
Kramer,
a New York statute provided that, in certain school districts, school board members were to be electеd only by those people in the district who owned property or had children enrolled in the district. In other districts, all qualified voters were entitled to vote on board membership. In still other districts, school board members were appointed. A resident in the first category of districts who neither owned property nor had children
*437
enrolled in the district challenged the statute that imposed those qualifications on the right to vote. As we read
Kramer,
“the Court held that, once it is determined that an election will be held, the decision as to who may vote
in that election
is subject to strict scrutiny.”
Sherwood School Dist. 88J,
In
Hussey,
the issue was annexation. The plaintiffs in that case challenged the constitutionality of a City of Portland ordinance that offered a subsidy to residents who signed irrevocable consents to annexation. The Court of Appeals for the Ninth Circuit agreed with the city’s position that there is no constitutional right to vote on annexation, but held that, “once the citizens are granted the right to vote on a matter, the exercisе of that vote becomes protected by the Constitution even though the state was not obliged to allow any vote at all.”
Hussey,
“As in Kramer, the focus of the [cjourt’s opinion was on the exercise of the right to vote in an election. The [c]ourt held that, once the local government authorized an election, it could not condition the right to vote in that election without a compelling justification. The [c]ourt did not come close to suggesting that, once a local government confers the right to vote on a matter, the local government cannot in the future decide that the matter should be decided by another means.”
Sherwood School Dist. 88J,
We then proceeded to distinguish the circumstances in Sherwood School Dist. 88J from the holdings in Kramer and Hussey:
“In both [Kramer and Hussey], in other words, there was an electiоn, and the government entities unlawfully imposed qualifications on who could vote in that election. That is not what happened in this case, in which the legislature has determined that a particular issue — the location of a school boundary — in a particular geographic area simply will nоt be decided by an election at all. As we have noted, the *438 legislature possesses the constitutional right to determine local school boundaries with or without an election. * * * Simply because the legislature determines to grant the people the power to vоte on the issue does not mean that the legislature cannot change its mind and exercise its constitutional authority to decide the matter for itself.”
Sherwood School Dist. 88J,
ORS 222.750, as did the statute in Sherwood School Dish 88 J, involves a determination of whether, in a particular circumstance, an election will be held; it does not unlawfully impose qualifications on who can participate, once the legislature has decided to hold an election. The legislature has simply exercised its constitutional authority to determine that, in a particular geographic area — namely, where territory is surrounded by the corporate boundaries of a city, or by the boundaries of a city and a stream, bay, lake, or other body of water — annexation of that territory may proceed without an election. 5 Consequently, everyone who falls within the scope of ORS 222.750 is treated identically. 6
Bеcause ORS 222.750 does not involve a classification that infringes upon a fundamental right or is somehow “suspect,” the statute is subject to a “rational-basis” review.
Heller,
As LUBA appropriately observed, there are a number of rational and legitimate reasons for disparate treatment of “island” territories:
“An obvious reason is to reduce jurisdictional confusion, a concern that is generally not present in more ordinary annexations of contiguous lands. Other reasons are to improve administrative efficiency or provide municipal services more efficiently. * * * [I]t is not hard to imagine that in most if not all cases, establishing city rather than county jurisdiction over an area that is entirely surrounded by the city or the city and a body of water will tend to promote administrative аnd service efficiency, to the benefit of both the city and the residents of the territory.”
Kane v. City of Beaverton, 49 Or LUBA 512 (2005). We agree with LUBA that, given those conceivable reasons, there is a rational basis for treating “island” territories differently than non-“island” territories. Accordingly, we conclude that, becausе there is a rational basis for the differential treatment provided in the statute, petitioners have failed to demonstrate that ORS 222.750 violates their rights under the Equal Protection Clause of the Fourteenth Amendment.
Affirmed.
Notes
Petitioners in this case are Mariam Jane Corby and Scott Monson. Henry Kаne was dismissed as a party for lack of standing.
ORS 222.750 provides:
“When territory not within a city is surrounded by the corporate boundaries of the city, or by the corporate boundaries of the city and the ocean shore or a stream, bay, lake or other body of water, it is within the power and authority of that city to annex such territory. However, this section does not apply when the territory not within a city is surrounded entirely by water. Unless otherwise required by its charter, annexation by a city under this section shall be by ordinance or resolution subject to referendum, with or without the consent of any owner of property within the territory or resident in the territory.”
Before LUBA, petitioners advanced the related argument that ORS 222.750 violates Article I, section 20, of the Oregon Constitution, which provides that “[n]o law shall be passed granting to any citizen or class of citizens рrivileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” However, petitioners do not raise that argument on appeal, and we do not address it. ORAP 5.45.
Other courts that have considered whether there exists a “fundamental right” to vote in municipal annexаtions have similarly rejected that notion.
See, e.g., Barefoot v. City of Wilmington,
Annexation of “island” territory is, howеver, subject to referendum. ORS 222.750 (“[Ajnnexation by a city under this section shall he by ordinance or resolution subject to referendum, with or without the consent of any owner of property within the territory or resident in the territory.” (Emphasis added.)).
Had the legislature granted the right to vote on a particular annexation to certain individuals within the annexed territory, while not granting it to others within the same territory, we would be faced with a different question.
See, e.g., Mid-County Future Alternatives,