Stewart v. City of Corvallis, 34972

• Decision Date: 13 October 1980
• Docket Number: No. 34972,34972
• Parties: Mel STEWART, Appellant, v. CITY OF CORVALLIS, Respondent. ; CA 16556.
• Court: Oregon Court of Appeals

Page 921

617 P.2d 921

48 Or.App. 709

Mel STEWART, Appellant, v. CITY OF CORVALLIS, Respondent.

No. 34972; CA 16556.

Court of Appeals of Oregon.

Argued and Submitted Aug. 18, 1980.

Decided Oct. 13, 1980.

William G. Nokes, Corvallis, argued the cause and filed the briefs for appellant.

Richard D. Rodeman, Deputy City Atty., Corvallis, argued the cause and filed the brief for respondent.

Richard P. Benner, Portland, filed a brief amicus curiae.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

In September, 1978, after conducting hearings and making findings and conclusions regarding the annexation of a 76-acre parcel in which plaintiff's property is located, the Corvallis city council adopted a resolution submitting the annexation proposal to the voters of the city. At the November, 1978, general election, the voters rejected the proposal. Plaintiff then brought this declaratory judgment action, seeking to have the result of the election nullified and to have the property declared legally annexed to the city by force of the city council's actions. Plaintiff appeals from the trial court's summary judgment in favor of the city. We affirm.

Plaintiff's principal arguments follow three themes: first, that Oregon land use statutes and case law required final decisions on small tract annexations to be made in quasi-judicial proceedings, and that the submission of proposals for such annexations to a popular vote is therefore impermissible; ¹ second, that plaintiff has a due process right to a quasi-judicial determination of whether his property will be annexed; and third, that the Corvallis comprehensive plan and/or the statewide planning goals compel the annexation of plaintiff's property. The amicus curiae makes arguments which differ in specifics from plaintiff's but which are to the same general effect.

In Petersen v. Klamath Falls, 279 Or. 249, 566 P.2d 1193 (1977), the Supreme Court held that city governing bodies are required by ORS 197.175 to follow quasi-judicial procedures in determining whether proposed annexations are consistent with statewide planning goals. Implicit in the Petersen opinion is the requirement that certain other decisions in the annexation process must also be made quasi-judicially, e.g., the determination of whether an annexation complies with the city's comprehensive plan. However, the Supreme Court stated in Petersen :

" * * * Of course, we recognize that the broader issues involved in reaching final decisions on whether the land proposed for annexation should, in fact, be annexed to the city, and at what point that action should be taken, may cloak those ultimate decisions with a character which is more legislative than judicial. See Griffin v. City of Roseburg, 255 Or. 103, 464 P.2d 691 (1970); Schmidt et al. v. City of Cornelius, 211 Or. 505, 316 P.2d 511 (1957); 2 McQuillin, Municipal Corporations § 7.10 (3d ed 1966). However, we believe that the initial, threshold determination to be made-whether the proposed annexation is consistent with the statewide planning goals-is a determination which is quasi-judicial in nature. * * * " 279 Or. at 256, 566 P.2d at 1197.

We understand the quoted language from Petersen to be contrary to plaintiff's contention that the final decision on proposed small tract annexations must be quasi-judicial in nature and cannot be made by the voters. ² The amicus argues, however, that all of the decisions to be made in connection with this particular annexation fell on the quasi-judicial side of the various lines drawn by the Supreme Court in Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 601 P.2d 769 (1979), for determining when quasi-judicial procedures must be followed and when legislative decision-making is permissible. In our view, the amicus' argument begs the question because the amicus does not give enough attention to the inquiry which must precede any application of the Strawberry Hill criteria to the decision, i.e., what is the decision.

Discussion of two of the amicus' specific contentions will suffice to illustrate. The amicus argues, first, that the final decision on this annexation applied to a closely circumscribed factual situation--thereby meeting one of Strawberry Hill's standards for a quasi-judicial decision--because the territory and number of owners affected are small. It is true that the amount and number of owners of the territory to be annexed are small; it is not correct that the number of people in the city is small. The city contends, and we agree, that the impact of a final annexation decision on municipal services, taxes and the like can affect everyone in the city; a final decision therefore differs in the extent of its effect from the initial decision, which Petersen requires to be made quasi-judicially, of whether a parcel which is small in size and owned by few persons can be annexed consistently with the statewide goals and other applicable land use criteria.

The amicus' second basis for contending that the decision is quasi-judicial under Strawberry Hill is that the process in which the city council was involved, i.e., acting on a "triple majority" annexation petition under ORS 222.170, ³ had "to result in a decision" by the city council, unlike annexations initiated by other statutory methods. Assuming arguendo that ORS 222.170 does require a city council to make some affirmative decision when the triple majority procedure is followed, the statute nevertheless clearly provides that the city council may refer the proposed annexation to the voters of the city for a final decision, and that the voters of the city may petition for referral of the annexation ordinance if the city council does not submit the annexation proposal to them. ⁴

In sum, we disagree with plaintiff's and the amicus' arguments that Oregon land use statutes or case authority requires the final decision on small tract annexations--or on this particular annexation--to be made in a quasi-judicial proceeding rather than by popular vote. It follows that plaintiff's due process argument falls with his contention that the final decision had to be quasi-judicial.

Plaintiff's and the amicus' final arguments which warrant discussion are, in essence, that the city's comprehensive plan and state planning standards compelled the annexation of plaintiff's property by the city. Plaintiff argues that the city had amended its comprehensive plan in May, 1978, to authorize the medium-high residential use of plaintiff's property which would have been implemented if the property had been annexed, and that the city cannot defeat the legislative decision embodied in the plan amended by a subsequent vote rejecting annexation of the property. The amicus contends that, in light of the city council's findings and conclusions, LCDC's pre-acknowledgment annexation rule (OAR 660-01-315) ⁵ foreclosed the city from deciding not to annex the territory, or at least limited the city's discretion to decide against annexation in such a way that a legislative rather than quasi-judicial decision was inappropriate. Both plaintiff and the amicus argue that the decision not to annex plaintiff's property is inconsistent with statewide planning goals, particularly the Housing Goal and the Urbanization Goal (Goals 10 and 14). ⁶

The comprehensive plan amendment upon which plaintiff relies does not compel an annexation at the present time. It authorizes a use. In Marracci v. City of Scappoose, 26 Or.App. 131, 552 P.2d 552, rev. den. 276 Or. 133 (1976), we rejected an argument, similar to plaintiff's, that the city of Scappoose was required to permit a higher density residential use than current zoning authorized because the city's comprehensive plan designated the property in question for the more intense use. We stated:

"In other words, a comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan. * * * " 26 Or.App. at 134, 552 P.2d at 553.

The annexation rule relied on by the amicus also does not require the City of Corvallis to annex plaintiff's property. In the first place, the findings and conclusions of the city council do not clearly show that plaintiff's property meets the rule's minimum requirements for permitting annexation prior to compliance acknowledgment of the city's comprehensive plan. More fundamentally, the rule does not purport to require annexation under any circumstances; the rule's purpose appears instead to be to limit the conditions under which a city may annex property before it...