Morsman v. City of MadrasMorsman v. City of Madras
Petitioners seek review of a decision of the Land Use Board of Appeals (LUBA) that pertains to respondent City of Madras’s annexation of 759 acres of land. Before LUBA, petitioners argued that the “triple majority” method of annexation that the city employed pursuant to ORS 222.170(1) is unconstitutional under Article I, section 20, of the Oregon Constitution, 1 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. LUBA rejected petitioners’ constitutional challenges to the statute, and we affirm.
This is the third time that this dispute has been before us.
See Morsman v. City of Madras,
“In Morsman II, we described the annexation as follows:
“ ‘[T]he annexation is of the “cherry stem” variety, so called because the bulk of the annexed property (the “cherry”) is connected to the city by an annexed, narrow, 300-foot section of the Warm Springs Highway (the “stem”). * * * Much of the annexed area is occupied by an already developed industrial park, the city’s sewage treatment plant, its airport, and some residential properties, including petitioners’ [Morsmans’] 60-unit low income mobile home park. Some residential developments adjacent to the “stem” portion of the Warm Springs Highway are not included in the annexed territory and remain outside of the city. The newly added area is within the city’s urban growth boundary.’
“191 Or App at 151-52 .
“The city sought to annex the property through a process that does not require an election, generally referred to as the ‘triple majority’ method of annexation. See ORS 222.170(1). Under that process,
“ ‘[t]he legislative body of the city need not call or hold an election in any contiguous territory proposed to be annexed if more than half of the owners of land in the territory, who also own more than half of the land in the contiguous territory and of real property therein representing more than half of the assessed value of all real property in the contiguous territory consent in writing to the annexation of their land in the territory and file a statement of their consent with the legislative body * Hi ^ 9
“Id. The city obtained consents from various property owners and, on February 25,2003, enacted an ordinance annexing the property.
“Petitioners Phillip and Brigitte Morsman, who owned land within the area to be annexed, * * * then filed the initial appeal to LUBA, challenging the city’s enactment of the ordinance. The Morsmans raised three overarching arguments. First, they asserted that the city had failed to provide requisite notice and hearing pursuant to ORS 197.763, which governs notice and hearing requirements for quasi-judicial land use decisions. The city did not dispute that appropriate notice had not been given but argued, instead, that its failure in that regard did not require reversal because the Morsmans had, in fact, attended a public hearing pertaining to the annexation and had raised objections at that hearing. LUBA concluded that the lack of notice under ORS 197.763 required a remand[.]
«Hs ^ ^ ^
“Morsman I, 45 Or LUBA at 20.
“Second, the Morsmans, invoking [Portland Gen. Elec. Co. v.] City of Estacada, [194 Or 145 ,241 P2d 1129 (1952)], raised a battery of challenges to the ‘reasonableness’ of the cherry-stem annexation.LUBA rejected each of those arguments. Morsman I, 45 Or LUBA at 21-26.
“Finally, the Morsmans argued that the city had offered improper inducements, both in the form of property tax advantages and land use preferences, to property owners who consented to annexation. The Morsmans contended that the city’s alleged selective use of such quid pro quo arrangements was unconstitutional under the analysis of Hussey v. City of Portland,64 F3d 1260 (9th Cir 1995), cert den,516 US 1112 (1996). LUBA concluded that the record was insufficient to establish that the city had selectively and improperly offered property tax advantages. However, LUBA further determined that the Morsmans had presented credible evidence that the city had improperly offered land use regulation preferences as an inducement for securing some property owners’ consents to annexation. Accordingly, LUBA remanded for the city either to explain why those arrangements were not improper or to ‘revise those agreements so they are consistent with Hussey.’ Morsman I, 45 Or LUBA at 31. LUBA’s decision in Morsman I was rendered on July 7, 2003.
“The Morsmans then petitioned for judicial review in this court, arguing that LUBA had erred in rejecting their ‘reasonableness’ arguments based on City of Estacada. In Morsman II, we held that, until the city had held the hearing required by LUBA’s remand, ‘no definitive conclusion as to reasonableness is possible.’191 Or App at 155 . Accordingly, we reversed LUBA’s decision to the extent that it had rejected the Morsmans’ ‘reasonableness’ arguments and, by extension, broadened the scope of LUBA’s remand to the city. Id. (‘LUBA’s conclusion was, therefore, at least premature; before deciding whether the annexation is reasonable, LUBA must remand to the city for a determination as to whether the annexation meets statutory land use criteria.’). Our decision in Morsman II was rendered on December 9, 2003.
“Meanwhile — even before LUBA issued Morsman I, and long before we issued Morsman II — the city had not been inactive. Rather than awaiting the outcome of the Morsmans’ challenges — and apparently in an effort to cure its noncompliance with ORS 197.763 — the city held a series of public hearings on the annexation between June 24,2003 (two weeks before Morsman I issued) and September 23, 2003. Several aspects of those proceedings are pertinent to our review and, particularly, to our reversal of LUBA’s determination that petitioners waived their constitutional challenges to the ‘triple majority’ method of annexation.
“First, the city gave notice of the June 24,2003, hearing pursuant to ORS 197.763, and both the Morsmans and petitioner Shepherd, who had not been a party to Morsman I, received the notice and appeared. Second, although neither the Morsmans nor Shepherd argued on June 24 that triple-majority annexation was unconstitutional, that hearing was continued, with the record being held open. Third, at a subsequent hearing on August 26,2003, the Morsmans did, for the first time, raise the argument that ORS 222.170 is unconstitutional. Thereafter, at a continuation of that hearing, on September 23, 2003, petitioner Shepherd specifically endorsed and adopted all arguments raised by the Morsmans. At that same September 23 hearing, the city council received a staff report that addressed at length the question of whether the triple-majority annexation method violated Article I, section 20, of the Oregon Constitution, as well as the question of whether the inducements for the consents violated the Fourteenth Amendment to the United States Constitution. Fourth, also on September 23, the city council voted to alter the area to be annexed, excluding the Morsmans’ property; Shepherd’s property continued to be included in the annexed area.
“On October 1, 2003, while Morsman II was still pending before this court, the city issued its decision approving the modified annexation. Petitioners timely appealed that decision to LUBA.
“As noted above, our remand in Morsman II occurred in early December 2003. LUBA then remanded the matter to thecity, which, on January 13, 2004, reopened the public hearing on the annexation matter. The city attorney noted that, given the matters that had been determined in the city’s October 1 decision and the scope of LUBA’s remand following Morsman II, the hearing should address two issues: the ‘reasonableness’ inquiry framed by Morsman II and the constitutionality of the inducements the city had offered to obtain consents to the annexation. The Morsmans and Shepherd appeared at the January 13 hearing. The city council continued that public hearing until January 27, 2004. At that time, the council voted to adopt various findings of fact and conclusions of law and approved the annexation ordinance. Petitioners timely sought LUBA review of that decision.
“LUBA subsequently entered an order consolidating the appeal of the city’s January 27, 2004, decision with the previously filed appeal from the October 1, 2003, decision. In the consolidated appeals, petitioners raised five assignments of error, arguing that (1) the triple-majority method of annexation is unconstitutional; (2) the city had failed to comply with procedures for adopting legislative revisions to the comprehensive plan before approving the annexation; (3) and (4) the city had improperly secured consents to annexation both through improper property tax inducements and improper assurances as to future land use regulation preferences; and (5) the annexation violated the ‘reasonableness’ standards of City of Estacada.
“In Morsman v. City of Madras, 47 Or LUBA 80 (2004) (Morsman III ), LUBA declined to address the merits of petitioners’ first assignment of error, pertaining to the constitutionality of ORS 222.170. The city had raised no procedural impediment to that assignment of error — indeed, as noted, the city had expressly addressed that matter on remand. See196 Or App at 72 . Nevertheless, LUBA sua sponte determined that, because the Morsmans had not raised that argument in Morsman I, they had waived it, regardless of their subsequent assertion of the constitutional challenge at the August 23, 2003, hearing and thereafter.”
LUBA rejected petitioners’ remaining assignments of error in Morsman III on their merits. In Morsman IV, we upheld LUBA’s rejection of each of petitioners’ assignments of error in Morsman III except one; we concluded that LUBA had erred in determining that petitioners had waived their constitutional challenges to the triple majority method of annexation, and we remanded for LUBA to consider those challenges in the first instance. Id. at 79. In Morsman v. City of Madras (Morsman V), 50 Or LUBA 1 (2005), LUBA addressed and rejected both of petitioners’ constitutional arguments on their merits.
Petitioners once again seek review before this court. On review, petitioners reprise their arguments before LUBA that the triple majority statutory scheme is unconstitutional under both the Oregon and United States constitutions because it dispenses, in certain circumstances, with a vote of the electorate on a proposed municipal annexation. We review LUBA’s determination for errors of law. ORS 197.850(9)(b);
Corp. of Presiding Bishop v. City of West Linn,
To place petitioners’ arguments in context, we first set out pertinent portions of the statutory scheme that they challenge. ORS 222.111(5) 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 annexation 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 electors 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.”
“The legislative body of the city need not call or hold an election in any contiguous territory proposed to be annexed if more than half of the owners of land in the territory, who also own more than half of the land in the contiguous territory and of real property therein representing more than half of the assessed value of all real property in the contiguous territory consent in writing to the annexation of their land in the territory and file a statement of their consent with the legislative body on or before the day:
“(a) The public hearing is held under ORS 222.120, if the city legislative body dispenses with submitting the question to the electors of the city; or
“(b) The city legislative body orders the annexation election in the city under ORS 222. Ill, if the city legislative body submits the question to the electors of the city.”
With that framework in mind, we first consider petitioners’ challenge under Article I, section 20, which, among
other protections, shields “true classes” of persons against disparate treatment in laws that grant privileges or immunities.
See Tanner v. OHSU,
In Tanner, we explained:
“As used in the Article I, section 20, case law, the term ‘class’ takes on special meaning; only laws that disparately treat a ‘true class’ may violate that section of the constitution. State ex rel Huddleston v. Sawyer,324 Or 597 , 610,932 P2d 1145 , cert den[, 522] US [994],118 S Ct 557 ,139 L Ed 2d 399 (1997). In attempting to describe precisely what is meant by a ‘true class,’ the cases draw a distinction between classes that are created by the challenged law or government action itself and classes that are defined in terms of characteristics that are shared apart from the challenged law or action.
“The standard example of a nontrue class, drawn from the Supreme Court’s decision in [State v.] Clark[,291 Or 231 , 237,630 P2d 810 (1981)], [5] is the classification created by a statute that imposes a filing deadline for filing a petition for review. Such legislation creates two classes of persons: (1) those who timely file petitions for review, and (2) those who do not. Both are ‘classes’ of persons, at least in the colloquial sense of groups having something in common. But in the absence of the statute, they have no identity at all. Legislation that disparately affects such ‘classes’ does not violate Article I, section 20, because of the essentially circular nature of the argument: The legislation cannot disparately affect a class that the legislation itself creates. Clark,291 Or at 240 . See also Sealey v. Hicks,309 Or 387 , 397,788 P2d 435 (1990); Hale v. Port of Portland,308 Or 508 , 525,783 P2d 506 (1989).
“In contrast, Article I, section 20, does protect against disparate treatment of true classes, those that have identity apart from the challenged law itself. Various formulations have been used to describe in some affirmative way what a true class is, as opposed to merely what it is not in reference to classes created by the challenged legislation. The cases refer to classification by ‘ad hominem characteristic,’ Van Wormer v. City of Salem,309 Or 404 , 408,788 P2d 443 (1990), by ‘personal characteristic,’ Zockert v. Fanning,310 Or 514 , 523,800 P2d 773 (1990), and by‘antecedent personal or social characteristics or societal status,’ Hale,308 Or at 525 . Examples of true classes include gender, ethnic background, legitimacy, past or present residency, and military service. Clark,291 Or at 240 .
“To say that disparately treated true classes are protected by Article I, section 20, does not end the matter. Depending on what type of true class is involved, the legislation or governmental action may or may not be upheld in spite of the disparity. In that regard, the cases draw a distinction between ‘suspect’ classes and other true classes. The former classes are subject to a more demanding level of scrutiny, and legislation or government action disparately treating such classes is much more likely to run afoul of Article I, section 20, than is legislation or government action that disparately treats a nonsuspect class.”
Petitioners assert that the statutory scheme unlawfully discriminates against a “true class” of persons under Article I, section 20, namely, resident electors who do not
Assuming without deciding that resident electors who do not own property in a territory proposed for annexation constitute a true class under Article I, section 20,
cf. Sherwood School Dist. 88J v. Washington Cty. Ed.,
Because petitioners are not members of a suspect class, the next question is whether the distinctions drawn by the law here have a rational basis.
Cox v. State of Oregon,
We conclude that the triple majority scheme challenged in this case passes muster under the rational basis standard. As noted in
Mid-County Future Alt.,
the triple majority annexation method eliminates the administrative burden of an election where consent procedures already have established that a proposed annexation is favored by the property owners of the territory.
We turn to petitioners’ challenge under the Equal Protection Clause of the Fourteenth Amendment. Petitioners rely in large part on
Kramer v. Union Free School District No. 15,
The Court held that, if a right to participate in an election is legislatively established, a legislative determination of voter eligibility in the election is subject to strict scrutiny. In so concluding, the Court distinguished between a legislative choice whether to authorize elections and a legislative determination of electoral qualifications.
See Sherwood,
There is no fundamental federal constitutional right to vote on municipal annexation
“Other courts that have considered whether there exists a ‘fundamental right’ to vote in municipal annexations have similarly rejected that notion. See, e.g., Barefoot v. City of Wilmington,306 F3d 113 , 121-23 (4th Cir 2002) (citizens do not have a fundamental right to vote on annexation); Moorman v. Wood,504 F Supp 467 , 474 (1980) (ED Ky) (‘granting the franchise [for annexation elections] to residents of one area, and denying it to those of another area * * *’ does not deny a fundamental right); Givorns v. City of Valley, 598 So2d 1338, 1341 (Ala 1992) (statute imposing geographic restrictions on right to vote in annexation elections does not infringe upon a fundamental right); Beck v. City of San Mateo, 154 Cal App 3d 374, 201 Cal Rptr 365 (1984) (statute denying voting rights to ‘island’ territories substantially surrounded by annexing community did not infringe upon a fundamental right); Grant County Fire Protection District No. 5 v. City of Moses Lake, 150 Wash 2d 791, 814,83 P3d 419 (2004) (en banc) (‘[T]he citizens of the State have no fundamental right of citizenship to seek annexation. Nor do they have any such right to prevent annexation. The power is entirely that of the legislature, which may delegate to the cities.’).”
Kane,
We disagree with petitioners’ interpretation of the statute. ORS 222.111(5) provides for an election only in limited and conditional circumstances; an election is to be held only when an annexation proceeding is initiated by a city council or a petition of property owners under ORS 222.111(2). By its terms, ORS 222.111(5) confers no right to an election if a triple majority of property owners in the territory consents to the annexation within the time specified by the statute. If that happens, ORS 222.170(1) provides that an election in the territory proposed to be annexed is not required, and the right to an election under ORS 222.111(5) that may arise under other circumstances does not exist.
The surrounding statutory framework confirms that conclusion.
See PGE v. Bureau of Labor and Industries,
Petitioners remonstrate that the foregoing construction of the statutory framework creates too fine a line between voting and other means of approving annexations, such as the consent procedure authorized by ORS 222.170(1). As petitioners see things, that procedure provides a form of voting to some electors even though it “only is the decision to authorize the city to go ahead with the annexation without an election if the city so chooses.” Petitioners also urge that, because the triple majority scheme “touches on” and “burdens” the right to vote, it is subject to strict scrutiny under the Equal Protection Clause. Petitioners rely on
Kramer
and other cases holding that, in the absence of a compelling state interest, laws that deny certain residents the right to vote in non-special-interest elections on grounds other than residence, age, or citizenship violate the Equal Protection Clause.
See, e.g., Hill,
We are not persuaded by petitioners’ argument. Because there is no fundamental right to vote in municipal annexation decisions, we will not blur the line drawn in Kramer between a legislative choice whether to authorize elections and a legislative determination of electoral qualifications. The triple majority statutory framework set out in ORS 222.170 falls, by its terms, in the former category, not the latter. Accordingly, we conclude that the traditional rational basis standard, rather than strict scrutiny, is applicable to petitioners’ equal protection challenge. As discussed, the statutory scheme satisfies the rational basis standard.
To summarize: Petitioners are not members of a suspect class, and the triple majority scheme satisfies the rational basis test required by Article I, section 20, of the Oregon Constitution. Because the triple majority annexation method provided in ORS 222.170(1) does not create a generalized right to vote on municipal annexation decisions, because no such right exists under the United States Constitution, and because the statutory scheme satisfies the rational basis standard, it does not violate the Equal Protection Clause of the Fourteenth Amendment.
Affirmed.
Notes
Article I, section 20, of the Oregon Constitution provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
ORS 222.120 provides another exemption from the requirement that the proposal for annexation be submitted to the electors of the territory proposed for annexation. That statute provides, in part:
“(1) Except when expressly required to do so by the city charter, the legislative body of a city is not required to submit a proposal for annexation of territory to the electors of the city for their approval or rejection.
“(2) When the legislative body of the city elects to dispense with submitting the question of the proposed annexation to the electors of the city, the legislative body of the city shall fix a day for a public hearing before the legislative body at which time the electors of the city may appear and be heard on the question of annexation.
“(3) The city legislative body shall cause notice of the hearing to be published once each week for two successive weeks prior to the day of hearing, in a newspaper of general circulation in the city, and shall cause notices of the hearing to be posted in four public places in the city for a like period.
“(4) After the hearing, the city legislative body may, by an ordinance containing a legal description of the territory in question:
“(a) Declare that the territory is annexed to the city upon the condition that the majority of the votes cast in the territory is in favor of annexation;
“(b) Declare that the territory is annexed to the city where electors or landowners in the contiguous territory consented in writing to such annexation, as provided in ORS 222.125 or 222.170, prior to the public hearing held under subsection (2) of this section; or
“(c) Declare that the territory is annexed to the city where the Department of Human Services, prior to the public hearing held under subsection (1) of this section, has issued a finding that a danger to public health exists because of conditions within the territory as provided by ORS 222.840 to 222.915.
******
“(6) The ordinance referred to in subsection (4) of this section is subject to referendum.”
ORS 222.840 to 222.915 set out the process for annexations to remove dangers to public health by providing sanitary, water, or other facilities. Although subject to judicial review, such annexation decisions are made upon hearing by the Director of the Department of Human Services. ORS 222.880.
The second method requires the consent of a combination of electors and property owners. ORS 222.170(2) provides:
“The legislative body of the city need not call or hold an. election in any contiguous territory proposed to be annexed if a majority of the electors registered in the territory proposed to be annexed consent in writing to annexation and the owners of more than half of the land in that territory consent in writing to the annexation of their land and those owners and electors file a statement of their consent with the legislative body on or before the day:
“(a) The public hearing is held under ORS 222.120, if the city legislative body dispenses with submitting the question to the electors of the city; or
“(b) The city legislative body orders the annexation election in the city under ORS 222.111, if the city legislative body submits the question to the electors of the city.”
Because the construction of ORS 222.111(5) would not fully resolve petitioners’ challenge under Article I, section 20, we defer that issue for elaboration in our analysis of petitioners’ equal protection challenge under the United States Constitution.
5 In
Clark,
the Supreme Court held that Article I, section 20, “forbids inequality of privileges or immunities not available upon the same terms, first, to any citizen, and second, to any class of citizens.”
At first blush, it might appear that petitioners’ challenge is not justiciable, because, as property owners, they are not members of the class — resident nonproperty owning electors — whose constitutional rights they assert have been abridged
by the triple majority scheme.
See Strunk v. PERB,
ORS 199.490 provides for annexations to effectuate minor boundary changes or territory transfers in municipalities and districts.