SB 1573 repeal effort update

Nov. 11, 2017

DEAR MEMBERS & FRIENDS:

First, WELCOME! to the two dozen new folks who've signed up for our mailings since our last communication!

It's been a while, so we want to update you on the continuing effort to repeal Lee Beyer's Senate Bill 1573 that is depriving hundreds of thousands of Oregonians of long-held rights to vote on annexations. This update will cover a lot of ground because we have a number of new members, but the short story is: THE FIGHT TO REPEAL THIS TRAVESTY AND ASSAULT ON HOME RULE & LOCAL CONTROL – NOT TO MENTION ON THE OREGON CONSTITUTION – HAS NOT ENDED! In fact, an important “next step” has been taken.

The Benton County Circuit Court decision upholding SB 1573 has been appealed to the Oregon Court of Appeals. The cities of Philomath and Corvallis are leading the fight. The League of Oregon Cities – long our adversary but a welcomed ally in this battle – has signed on as amicus (supporting the cities). Other organizations have also joined the fray on our side. The state (defendant) has yet to respond. Defendants typically ask for extension(s). The reality is that the appeal process could take several years.

The Primary Issue At Stake

There are some major issues at stake, chief among them the concept of “Home Rule & Local Control” and the interpretation of Article XI, Section 2 of the Oregon Constitution which says:

“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon, and the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon.” (emphasis ours).

SB 1573 amended our city charters by repealing their provisions on voter annexation and imposing potentially costly new mandates on cities to fund services required for the annexations. THE APPELLATE COURT CASE WILL DETERMINE IF THE CONSTITUTION MEANS WHAT IT SAYS – OR IF THE LEGISLATURE CAN EDIT CITY CHARTERS AT WILL. If the latter, then the Oregon Constitution isn't worth the paper on which it's written. If SB 1573 is upheld, it effectively means that the Legislature can pre-empt, amend, repeal or revoke any city charter or provision therein for any reason. You can read the history and details on SB 1573 here.

There are other important issues in the mix:

1. Under SB 1573, the Legislature delegates annexation authority to landowners, not to cities, to initiate the most common annexations. The bill REQUIRES cities to accede to a developer's demand for annexation without regard to the cost or to the social and environmental impacts on the community, provided the territory meets the relevant conditions in the city's comprehensive plan. It is ordering cities to annex territory in certain ways different from prior land use law.
2. We believe the SB 1573 directive to cities amounts to an UNFUNDED MANDATE which appears to conflict with Oregon's Unfunded Mandate Law as codified in Article XI, Section 15 of the Oregon Constitution. The unprecedented success of voter annexation charter changes has always centered on the impacts of development on communities and who will pay for new infrastructure to accommodate growth. SB 1573 prohibits citizens from asking those questions and mandates that they pay those costs without a voice in the process. Taxpayers have a right to be involved in how their money is spent. It's a fundamental concept that goes back to the American Revolution! Oregon Statewide Planning Goal 1 leaves no doubt about “citizen involvement that clearly defines the procedures by which the general public will be involved in the ongoing land use planning process.” Here's a link to Goal 1: http://www.oregon.gov/LCD/docs/goals/goal1.pdf
3. Because SB 1573 places requirements on cities with “Voter Annexation” in their charters that it does not impose on cities without VoA, this appears to constitute unequal treatment and unequal imposition of burden, also prohibited by the Oregon Constitution. The legislator who first sponsored the developers' language for SB 1573, former Senator Chris Edwards (D., Eugene), stated that he would not have sponsored the legislation had it applied in his district (it doesn't). But he didn't mind depriving some 700,000 Oregonians in 34 cities of a long-held voting right earned by initiatives in those communities which they promoted and passed under “home rule.”
4. Many of our Voter Annexation charter amendments require public votes on all annexations except those “mandated by state law.” The defendants are insisting that since SB 1573 now mandates most annexations, it's “state law” that supersedes the voting rights. However, our chairman, Jeff Lamb, who assisted in drafting one of the earliest charter amendments, affirmed via affidavit to the court that the intent of the foregoing exemption was limited to annexations mandated by state law AT THE TIME. Those were largely limited to ORS 222.850 “health hazard” annexations. Thus, as Jeff explained, the exception was very narrow in scope. Of the various affidavits submitted to the court, Jeff's was the only one accepted. This “mandated” question will be a key point of contention as the case moves forward.

The Short Version of the Dirty Politics Behind SB 1573 (Again, see the more detailed version on our website)

1. Although the legislation didn't get out of Edwards' committee, Sen. Lee Beyer (D., Springfield) allowed an 11th hour underhanded “Stuff & Gut” (as opposed to the usual reversal of the two… both are despicable) of a solid bill – HB 2938 in 2015 - OCVA had written and was approved by the House 59:1 to rein in “hostage” annexations. The destruction of HB 2938 became SB 1573 in the 2016 session, which Beyer sponsored and carried. It was accomplished in part by declaring a totally bogus public safety “emergency” during the 2016 “short” session of the legislature.
2. “Emergency” clauses have become a widespread abuse of the legislative process, often used to prevent citizen reversal of legislative decisions via referenda. In 2016, OCVA joined other groups in promoting an initiative to limit the flagrant abuse of emergency clauses. We fell just slightly short of obtaining enough signatures to qualify the initiative. But as the abuse continues – as it did with SB 1573 – we firmly believe the effort will be revived as more people recognize how this practice denies their rights as affirmed by the Oregon Constitution.
3. Public hearings on SB 1573 received scant PUBLIC notice – sometimes only 1 hour, if at all. Proponents of the bill apparently knew of these hearings beforehand but we, and the rest of the public, found out only through the sometimes unreliable legislative schedules. Aside from the first committee hearing, opponents of SB 1573 had insufficient time to gather the troops for the subsequent hearings and sustain consistent public opposition.
4. The bill was sold to legislators in a sham 4-bill deal as part of a “cure” for the affordable housing crisis, despite there being no evidence we've ever seen linking annexation votes to the lack of affordable housing. Governor Brown finished the travesty by signing it into law citing the same unfounded argument of “affordable housing.”

In conclusion, for 40 years until 2016, building interests consistently attacked annexation voting, repeatedly losing in the courts and the legislature. They finally succeeded – at least for now – with Beyer's SB 1573. Development interests and their allies continue their campaign to prevent citizens from having a voice in the public process; this is not limited to the annexation issue. We see their actions as creating a Constitutional Crisis and a clear conflict of Goal # 1 of Oregon land use planning-citizen involvement.

OCVA and our allies are continuing the fight to turn back this assault on our community charters. It's going to be a long slog through the trenches…but we've been in the trenches against these foes many times with decades of success to show for it. Stay tuned, and pass the word to all interested parties to sign up for our updates. There is no cost and we don't give out contact info to anyone else.

Here is a link to an interesting document on “Protecting Local Control” that has a number of good ideas:

https://www.mayorsinnovation.org/images/uploads/pdf/Toolkit.pdf

As always, thank you for your ongoing support!

Jeff, Richard, Jerry, and Brian

Updated January 3, 2018