Loading...
HomeMy WebLinkAbout2812 Effective Date: June 6, 2019 ORDINANCE 2812 AN ORDINANCE ANNEXING TO THE CITY OF LAKE OSWEGO SEVEN PARCELS AND THE ADJACENT MEADOW AVENUE PUBLIC RIGHT-OF-WAY CONSISTING OF 5.0 ACRES AT 5165 CARMAN DRIVE, 5195 BONITA ROAD, 5215 BONITA ROAD, 5200 MEADOWS ROAD, 4950 MEADOW AVENUE, 4948 MEADOW AVENUE AND ONE PARCEL WITH NO SITUS ADDRESS AT 21E07AB00700, DECLARING CITY OF LAKE OSWEGO ZONING AND RESOURCE PROTECTION (RP) DISTRICT PURSUANT TO LOC 50.01.004.5(A-C); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS (AN 18-0019). WHEREAS, annexation of the territory to the City of Lake Oswego shown in the maps in Attachments "A," "B," "C," and "D" and described below, would constitute a contiguous boundary change under ORS 222.111, initiated by the Lake Oswego City Council on September 18, 2018 as outlined in ORS 222.111(2); and, WHEREAS, ORS 222.750 provides that annexation of unincorporated territory surrounded by a city ("island annexation") may be annexed without consent of the property owners or residents within the territory; and, WHEREAS, annexation of the territory to the City of Lake Oswego shown in the maps in Attachments A and B, described in Attachments C and D, and further described below would constitute an Island Annexation under ORS 222.750; and, WHEREAS, the City Council takes an active role in the annexation of developed commercial and industrial property within Lake Oswego's urban service area, and although it is also Council policy to annex residential properties with the owners' consent, the subject commercial property may be annexed only by also annexing the subject residential properties; and, WHEREAS ORS 222.750(5) provides that the effective annexation date for properties that are zoned for, and in, residential use when an island annexation is initiated must be at least three years and not more than 10 years after the date the city proclaims the annexation approved; and, WHEREAS, the part of the territory that lies within the Clean Water Services District (CWSD) will, by operation of ORS 222.520 be withdrawn from that district immediately upon approval of the annexation; and, WHEREAS, the final transfer of maintenance responsibilities from Clean Water Services District (CWSD) to the City of Lake Oswego will occur under a separate procedure upon approval of the annexation. The City will assume maintenance and management responsibilities for the sanitary system in this area once this procedure is complete; and, Ordinance 2812, AN 18-0019 (21E07AB00708, 00801, 00800, 00706, 00705, 00701, 00700) PAGE 1 OF 5 WHEREAS, the part of the territory that lies within the Tualatin Valley Fire and Rescue District will, by operation of ORS 222.520, be withdrawn from that district immediately upon approval of the annexation; and, WHEREAS, the part of the territory that lies within the Clackamas County Enhanced Sheriff's Patrol District will, by operation of ORS 222.520, be withdrawn from the district upon approval of the annexation; and, WHEREAS, the part of the territory that lies within the Surface Water Management Agency of Clackamas County will by operation of ORS 222.250 be withdrawn from that agency immediately upon approval of the annexation; and, WHEREAS, LOC 50.01.004.5 specifies that, where the Comprehensive Plan Map requires a specific Zoning Map designation to be placed on the territory annexed to the City, such a zoning designation shall automatically be imposed on the territory as of the effective date of the annexation; and, WHEREAS, this annexation is consistent with the Urbanization Chapter of the City of Lake Oswego's acknowledged Comprehensive Plan, Oregon Revised Statutes 222.111(2) and 222.750 for boundary changes, Metro Code Section 3.09.050 and Lake Oswego Community Development Code Sections 50.05.009.4 and 50.01.004.5. Now, therefore, the City of Lake Oswego ordains as follows: Section 1. The real property described on Attachments C and D is hereby proclaimed annexed to the City of Lake Oswego. The annexed territory is depicted on Attachment A. Section 2. The annexed area lies within the following districts and shall be retained within these districts upon the effective date of annexation: Lake Grove Park District Lake Grove Water District Section 3. The annexed area lies within the following districts and shall be withdrawn from these districts upon the effective date of annexation: Clean Water Services Sanitary District Tualatin Valley Fire and Rescue District Clackamas County Enhanced Sheriff's Patrol District Surface Water Management Agency of Clackamas County Section 4. In accordance with LOC 50.01.004.5, the City zoning designation of CR&D (Campus Research and Development) shall be applied to 5200 Meadows Road (TL 706) and the portion of the Meadow Avenue right-of-way adjacent to that parcel as shown on Attachment A. City zoning designation of R-7.5 (Single Family Residential) shall be applied to the remaining Ordinance 2812,AN 18-0019 (21E07AB00708, 00801, 00800, 00706, 00705, 00701, 00700) PAGE 2 OF 5 properties in the territory: 4948 Meadow Avenue (TL 801), 4950 Meadow Avenue (TL 800), 5165 Carman Drive (TL 701), 5195 Bonita Road (TL 705), 5215 Bonita Road (TL 708), the property with no situs address (TL 700) and the remaining portion of the Meadow Avenue right- of-way as shown on Attachment A. A Resource Protection Overlay Designation shall also be applied to 5200 Meadows Road (TL 706); 4948 Meadow Avenue (TL 801); 4950 Meadow Avenue (TL 800); 5165 Carman Drive (TL 701); 5195 Bonita Road (TL 705); the property with no situs address (TL 700) and a portion of the Meadow Avenue right-of-way as shown on Attachment B on the effective date of annexation. Section 5. The City Council hereby adopts the findings of fact and conclusions set forth in Attachment E in support of this annexation ordinance. Section 6. Effective Dates A. Effective Date of Decision to Annex. The annexation decision is final upon the date of enactment of this ordinance. B. Effective Date of Annexation Ordinance. Pursuant to Lake Oswego City Charter, Section 35.C., the ordinance shall be effective on the 30th day after its enactment. C. Effective Dates of Annexation. 1. For the property that is described on Attachment C (5200 Meadows Road (TL 706)), and the adjacent Meadows Road right-of-way, which was not zoned for, or in, residential use as of the initiation of this annexation: Following the filing of the annexation records with the Secretary of State as required by ORS 222.177, this annexation shall be effective upon the later of: a. the 30th day following the date of adoption of this ordinance; or b. the date of filing of the annexation records with the Secretary of State; provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation as established above is a date that is within 90 days of a biennial primary or general election or after the deadline for filing notice of election before any other election held by any City, district or other municipal corporation involved in the area to be annexed, then the effective date of the annexation shall be delayed until, and the annexation shall become effective on, the day after the election. 2. For the property that is described on Attachment D: 5165 Carman Drive (TL 701), 5195 Bonita Road (TL 705), 5215 Bonita Road (TL 708) 4948 Meadow Avenue (TL 801), which are zoned for and in residential use as of the initiation of this annexation, and the one parcel with no situs address at 21E07AB 00700, and 4950 Meadow Avenue (TL 800), together with the portion of the Meadow Avenue right-of-way adjacent to these properties, which are zoned for residential use as of the initiation of this annexation, the annexation shall be effective on May 7, 2029, provided, however, that pursuant to ORS 222.040(2), if the effective date of the annexation is a date that is within 90 days of a biennial primary or general election or after the deadline for filing notice of election before any other election held by any City, district or other municipal corporation Ordinance 2812,AN 18-0019 (21E07AB00708, 00801, 00800, 00706, 00705, 00701, 00700) PAGE 3 OF 5 involved in the area to be annexed, then the effective date of the annexation shall be delayed until, and the annexation shall become effective on, the day after the election. The City Recorder shall: a. Cause notice of the delayed annexation to be recorded by the county clerk of the county in which any part of the territory subject to delayed annexation is located within 60 days after the city proclaims the annexation approved; and b. Notify the county clerk of each county in which any part of the territory subject to delayed annexation is located not sooner than 120 days and not later than 90 days before the annexation takes effect. Section 7. Mailing Copies of this Ordinance; Metro Notice Within 30 days following the date of adoption: a. The City Recorder shall mail a copy of this ordinance to all persons and governmental entities that appeared at the public hearing and requested a copy of the ordinance following adoption. b. The City Recorder shall mail a copy of this ordinance together with the applicable mapping and notice fee charged by Metro pursuant to Metro Code 3.09.110, to the Metro Data Resource Center, 600 NE Grand Ave., Portland, OR 97232. Enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 7th day of May 2019. AYES: Mayor Studebaker, Wendland, Kohlhoff, Manz, O'Neill, Nguyen NOES: None ABSTAIN: LaMotte EXCUSED: None Kent Studebaker, Mayor Dated ATTEST: (AAIVI&IMA Anne-Marie Simpson, City Recorder Ordinance 2812,AN 18-0019 (21E07AB00708,00801, 00800,00706,00705,00701, 00700) PAGE 4 OF 5 APPROVED Pk -T FORM: /64teX\ David Powell, City Attorney Ordinance 2812,AN 18-0019 (21E07AB00708, 00801, 00800, 00706, 00705, 00701,00700) PAGE 5 OF 5 / cn Annexation to the City of Lake Oswego AN18-0019/Ordinance 2812 Meadows Rd 00 CR&D % o cn , ,•J r Me ado d c� 7 ram, ws R 01 CD CD 44d / L.d, %,� , CR&D tr /I / Dr •, • i an R 7.5 .� : / • w s�8s o 25 �. / �52 1 / , Bonita Rd s i '�V R-7.5 A513 cn �, cn 01 ��• , �` 1b2)c9 rn N Attachment A V Tax Lot IDs:21 E07AB00700, 21 E07AB00701, N,.os• QC 6` 21 E07AB00705, 21 E07AB00706, 21 E07AB00708, 21 E07AB00800, 21 E07AB00801 1 rpip City of Lake Oswego: '• COMPREHENSIVE PLAN = CR&D/R-7.5 !: z > ZONING = CR&D/R-7.5 �i�)41 r 0 0 Clackamas County: N O � ZONING = Cl/R-8.5, Mixed Use CP ilveroppi I 1 Lake Oswego Subject L——, City Limits rz, " Properties 7, rf:i ;� �r > 0 100 200 300 / Feet �n Annexation to the City of Lake Oswego AN18-0019/Ordinance 2812 Meadows Rd \ RP _ Ui O O U� cn 4,. , Meadows Rd o .71r�, / O J o ,J O O qRP r4 •/, eke ) ev'41e- ..`- /r / Dr „VI ., i , n Ga��a �s273 1520 ._ cr 5185 o 25 I Bonita Rd s7� 1G�231 ---- --- - - o p�9 cs, 01 cn cr 152 0) I w 0) N-41 , \ n s If' ,c)k Attachment B ok^ °sm i,,�'oJ �' Tax Lot IDs:21 E07AB00700, 21 E07AB00701, \+% 4 Id" r 21 E07AB00705, 21 E07AB00706, 21 E07AB00708, 21 E07AB00800, 21 E07AB00801 z RP /�� WRG p 0114.1**111 �� RC ——! Lake Oswego City Limits ipv; Ai --- HBA /// Subject Properties N > O ati 0 100 200 300 •ke . Feet 1 �� = fir/\ �,,..- - - _ ,_ 5,2019 QIA EOM ENGINEERING DEPARTMENT 1~^ r I V AP d GREG�� PAGE 1 OF ATTACHMENT C AN 18-0019 5200 MEADOWS ROAD TAX LOT 21E07AB00706 RIGHT OF WAY: A PORTION OF MEADOW AVENUE A tract of land located within the northeast quarter of Section 7, Township 2 South, Range 1 East of the Willamette Meridian, City of Lake Oswego, Clackamas County, Oregon, said tract being a part of Lot 7, Bonita Meadows (Plat No. 285), plat records of Clackamas County, said tract further identified as Parcel I of Document No. 2017-043977, deed records of Clackamas County, more particularly described as follows: Beginning at the northeast corner of Parcel 1, Partition Plat No. 1991-11, plat records of Clackamas County, said point being on the westerly right of way of Meadow Avenue; Thence leaving said right of way, South 81°34'20" West, along a line being common to the northerly line of Parcel 1 of said Partition Plat and the southerly line of said Parcel I of Document No. 2017-043977, 145.00 feet, to the south-southwest corner of said Parcel I of Document No. 2017-043977; Thence leaving said common line, North 64°55'40" West, along the southwesterly line of said Parcel I of Document No. 2017-043977, 205.00 feet, to the west-southwest corner thereof; Thence leaving said southwesterly line, North 24°04'20" East, along the northwesterly line thereof, 170.25 feet, to an angle point thereof; Thence continuing along said northwesterly line, North 15°46'42" East, 60.00 feet to the southwesterly right of way of Meadows Road; Thence leaving said northwesterly line, southeasterly along said southwesterly right of way, along the arc of a non-tangent curve, having a radius of 470.00 feet to the right, through a G ON pISIEREfl SIGNED 02.11.2018 RENEWAL EGON 06.30.2020 7-15-03 THOMAS D WORKMAN 54878LS 503.635.0270 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2 of 2 central angle of 8°58'48" (the long chord of which bears South 69°43'54" East, 73.59 feet), 73.66 feet to a point of tangency; Thence continuing along said right of way, South 65°14'30" East, 150.32 feet to a point of curvature; Thence along the arc of a 530.00 foot radius curve to the left, through a central angle of 4°30'56" (the long chord of which bears South 67°29'58" East, 41.76 feet), 41.77 feet, to the westerly right of way of said Meadow Avenue, 10.00 feet from the centerline thereof, when measured at right angles; Thence leaving said southwesterly right of way, South 00°14'52" West, along said westerly right of way, 174.38 feet, more or less, to the point of beginning. Together with a portion of Meadow Avenue (also identified as Meadows Avenue on said Partition Plat No. 1991-11), the right of way thereof being created by said Bonita Meadows (Plat No. 285), said portion being 20.00 feet wide; said portion lying westerly of the east line of said Bonita Meadows, and easterly of the east line of said Lot 7; said portion being bounded on the north by the southeasterly extension of the southwesterly right of way of Meadows Road, to the east line of said Bonita Meadows; said portion being bounded on the south by the southerly line of said Lot 7, said line also being the easterly extension of the northerly line of Parcel 1 of said Partition Plat. Said portion being 169 feet in length, more or less. The Documents referenced herein, being of the deed records of Clackamas County. [STERED O L SIGNED LA D U 02.11.2018 RENEWAL 06.30.2020 OREGON 7-15-03 (..THOMAS D WORKMAN 54878LS AN 18-0019 MEADOWS S 65°14'30" E ;' t �. ' ; A =4°30'56" ' 150.32' TAX LOT 21E07AB00706 ROAD ' `. `R =R = 530.00' RIGHT OF WAY: A PORTION OF 4> Ts � ;, CH = 41.76' MEADOW AVENUE N 15°46'42" E .' 'rl .'.'.'.'.'.'.'.'.'. S 67°29'58" E TAX MAP 2 1E 07AB 60.00' S• ° A= 8°58'48" :•:-.. ' SOUTHEASTERLY / .'.'.'.'.'..'.'.L= 73.66 N.W. 1/4, N.E. 1/4 SEC. 7 / ; EXTENSION OF THE R = 470.00 ............r3. R T.2S., R.1E., W.M. E CH - 73.59' r• SOUTHWESTERLY CITY OF LAKE OSWEGO 1.. k........... ° ; ��"'-./ • RIGHT OF WAY OF ail. •.............. q'............S69 4354 E....4•..... ...... y.............. . ... . ... .... .................• MEADOWS ROAD CLACKAMAS COUNTY, OREGON ^g st.r.�r-i•�yR ... . ..• •••• •...................... . T 7 ' r N 24°04'20" E 4.:..:.:.: DOCUMENT -'.:S 00°14'52" W I AVENUE, ALSO 170.25' NO. 2017-043977 .::., 174.38' ... . . a IDENTIFIED AS �: :. .... . .. . ...�... . .I MEADOWS ,�.' '. PART OF '��/'•'•'.'.'•'•'•'•' AVENUE ON '� .�,;. .... . LOT •7 POINT OF . ..... •1• PARTITION PLAT \ti-p •..... • ••: : BEGINNING ::• . `4 NO. 1991-11 a N 64°55'40" W ,, �., . --..'... 205.00' xxr EAST LINE 1 INCH = 100 FEET ,f.33-�"' 97.39 *� _$p� •RRCEL i MEADOWS ;��.Q w ADD S 81°34'20" W a c.) (PLAT NO. 285) '.:, • f 0i 145.00' ps gar o sy�p, 65 N. sss;�s - _ SOUTHERLY LINE , fie$ PARTITION k,:. OF LOT 7, ALSO Sf a PLAT THE EASTERLY r _ 74.7r91,' EXTENSION OF THE 8 to978. �D PART OF LOT 6 �,rc 800 - `gg��4 �' NORTHERLY LINE o;1• . - S 5155 4950 PARCEL 2 ° OF PARCEL 1, i ~�� (0.2TAc3� ' PARTITION PLAT \000 w P 533 7 ... 3 1 -- - -— - "�_ C �! . „. e.0.„w N.GJsrB-srtr.vr -Fs i s 4 C°` J .. ._______„,,____________D , L. .R- 805 5'1�4 .1 , 'ti ■_ a 1 y 1' Nc i sYYY 0 . aa ".'. yi, SEE Ps 3397 �� �� BONITA ROAD ,; 2ti R_ (COUNTY ROAD + ` lin ;4: C''NO. 929) o t7 L1 i 9 .�q y ' ANNEXATION AREA- PART �+ •� ��' �,� OF LOT 7 BONITA MEADOWS s.e9' o3•w _ "" -_�- 2a.,.'•_ _ _ - - O' (PLAT NO. 285) iv' 1-f3" lro.C/s 7�1 I74.3/ .s:er.73E6 ��. NO.9 9 7_ �;, F—�` -'t:Fib B-- /7 ANNEXATION AREA-A PORTION OF MEADOW ( ---1- _ --'-`'`" -,/ AVENUE, 169' ± IN LENGTH, CREATED BY 1 / BONITA MEADOWS (PLAT NO. 285) SAKE p TAX LOT: 706 TAX MAP: F \moo s��� PAGE 2 OF 2 1 E 07AB SHEET 1 OF 1 `' ° ENGINEERING ATTACHMENT C SCALE: 1" = 100' DATE: FEBRUARY 14, 2019 DEPARTMENT AN 18-0019 H:\SURVEYING SERVICES\ANNEXATION\2018\AN 18-0019 (5200 MEADOWS RD)\DWG\AN 18-0019_PAGE 2 OF OREGON ATTACHMENT D.DWG E �� ENGINEERING DEPARTMENT AO mow4 oRot PAGE 1 OF ATTACHMENT D AN 18-0019 DELAYED ANNEXATION AREA 4948 AND 4950 MEADOW AVENUE 5165 SW CARMAN DRIVE 5195 AND 5215 SW BONITA ROAD TAX LOTS: 21E07AB00700, 21E07AB00701 21E07AB00705, 21E07AB00708 21E07AB00800, 21E07AB00801 RIGHT OF WAY: A PORTION OF MEADOW AVENUE A tract of land located within the northeast quarter of Section 7, Township 2 South, Range 1 East of the Willamette Meridian, City of Lake Oswego, Clackamas County, Oregon, said tract being a part of Lot 6, Bonita Meadows (Plat No. 285), plat records of Clackamas County, said tract of land more particularly described as follows: Beginning at the northeast corner of Parcel 1, Partition Plat No. 1991-11, plat records of Clackamas County, said point being on the westerly right of way of Meadow Avenue; Thence along said westerly right of way, South 00°14' West, 201.06 feet to an angle point in the easterly line of Parcel 2 of said Partition Plat; Thence leaving said westerly right of way and continuing along the northwesterly right of way thereof, South 33°26' West, 199 feet, more or less, to a point being common to the northeast corner of that tract of land described in Document No. 2015-010933 and the southeast corner of that tract of land described in Document No. 94-079946; Thence leaving said right of way, North 69°23' West, along a common northeasterly and southwesterly line thereof, 162.92 feet, more or less, to the northwest corner of said Document No. 2015-010933 and the most east corner of that tract of land described in Document No. 86- 52127 and 93-52656; GISTERED LAD SIB' R SIGNED 02.11.2018 RENEWAL EGON �- 7-15-03 06.30.2020 THOMAS D WORKMAN 54878LS J 503.635.0270 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us Page 2 of 3 Thence leaving said northeasterly and southwesterly common line, South 21°22' West, along a common northwesterly and southeasterly line of said Documents No. 2015-010933, 86-52127, and 93-52656 respectively, 192 feet, more or less (deed record states 181.53 feet in Document No. 93-52656; deed records state 192.22 feet in Documents No. 86-52127 and 2015-010933), to the northerly right of way of Bonita Road (County Road No. 929); Thence leaving said common line, South 89°01' West, along said right of way, 21.02 feet, more or less, to the most south-southwest corner of said tract described in said Documents No. 86- 52127 and 93-52656; Thence continuing along said right of way and the most south-westerly line of said tract thereof, North 20°10' East, 12.8 feet, more or less, to the southeast corner of that tract of land described in Document No. 2018-005070; Thence along the southerly line thereof, and also continuing along said northerly right of way, South 89°01' West, 101.25 feet, more or less, to a point on the west line of said Lot 6; Thence leaving said southerly line and northerly right of way, North, along the west line of said Lot 6, 338.80 feet, more or less, to the west-northwest corner thereof; Thence leaving said west line, North 48°05' East, along the northwesterly line thereof, 131.35 feet, more or less, to the north-northwest corner thereof; Thence leaving said northwesterly line, North 81°35' East, along the northerly line thereof, 357 feet, more or less, to the point of beginning. Together with a portion of Meadow Avenue (also identified as Meadows Avenue on said Partition Plat No. 1991-11), the right of way thereof being created by said Bonita Meadows (Plat No. 285), said portion being variable in width; said portion lying westerly of the east line of said Bonita Meadows, and easterly/southeasterly of the east/southeasterly lines of said Lot 6; said portion being bounded on the north by the northerly line of said Lot 6, said line also being the easterly extension of the northerly line of Parcel 1 of said Partition Plat; said portion being bounded on the south by the westerly extension of the of the north line of Bryant Acres Plat 4 (Plat No. 591), to the southeasterly line of Parcel 2 of said Partition Plat. Said portion being 227 feet in length, more or less. [STERED O L LAD U SIGNED 02.11.2018 RENEWAL OREGON 06.30.2020 7-15-03 (..THOMAS D WORKMAN 54878LS Page 3 of 3 The Documents referenced herein, being of the deed records of Clackamas County. [STERED _ O LAD U SIGNED 02.11.2018 RENEWAL OREGON 06.30.2020 7-9 5-03 (..THOMAS D WORKMAN 54878LS AN 18-0019 MEADOWS ,r ' �° t L' - `.' > MEADOW AVENUE, 44 DELAYED ANNEXATION AREA ROAD A •'•�44 - '4's� ALSO IDENTIFIED AS .R a TAX LOTS: 21E07AB00700 �'z1'�'05 a e P.; ? MEADOWS AVENUE 21E07AB00701 • r' 706 �•�z �� 1 ON PARTITION PLAT 21E07AB00705 • 5200 NO. 1991-11 21E07AB00708 .ME eti �f}� n„ NORTHERLY LINE 21E07AB00800 ���+ �� t g ' �' F OF LOT 6, ALSO 21E07AB00801 { 07 THE EASTERLY RIGHT OF WAY: A PORTION OF „o sk 6�•..i4.,z•,E PART OF LOT 7 . EXTENSION OF MEADOW AVENUE °' '"47 �a2a • —9 — 1 i, THE NORTHERLY TAX MAP 2 1E 07AB f 4 LINE OF PARCEL 1, N.W. 1/4, N.E. 1/4 SEC. 7 DOCUMENT �3. 0 PARTITION PLAT T.2S., R.1E., W.M. �, . NO. 2017-043977 r© NO. 1991-11 CITY OF LAKE OSWEGO POINT OF CLACKAMAS COUNTY, OREGON ' '• :: e�-z BEGINNING 'z►'I EAST LINE ..Q$. o 4 N 81°35' E �,,-. OF BONITA / 357' ± - 7"4'4 �> MEADOWS '-4.`'s'' —6•x..Er' (PLAT NO. 285) 1 INCH = 100 FEET ^' .` .. .ss......' ' .:...... ti �3 L•1•.'.' �ma.Q...... S 00°14' W N 48°05 E • . .... .... ...... ,�' 201.06' 131.35' ± h. .....i.91...........1 Nth•4'° • . •S. •PS gc ... •Z WESTERLY op.. R.`..... ....518.5................................. .• 0: . ti k� ............ .... ..•'' t'...PJ 711'O .'.'.'.'.'.'. /. EXTENSION OF jf'........• . ...............�r:.,,o.... .... .... .... . �. THE NORTH 6-. ¢.. �avV;.. .tl LINE OF BRYANT • — fpf.�9•T& . .'.7•0•••'•••'•'•'•'•'•'•'•'• •.•.•.•. DOCUMENT I.'.'- •.' 4•••••`••••PAFjCf •a ACRES PLAT 4 h,y?9�l t - ...SSgS::.:................ NO. 94-079946 . .:': .: (PLAT NO. 591) . . ..'.'.fP.1.7Ac.3? 0 . l0 0 ..................... �' 20.00 %)51 ai.'........................................ #'192' ± (181.53' DOCUMENT a�'' •+ yNO. 93-52656; 192.22' DOCUMENTS '>•,y,1��a if, -sar.f � .`. NO. 86 52127, 2015-010933) • s ' S 33°26' W.. ■� DOCUMENT '.:. . ... ... 1. . 199' ± !� V •••••• NO. 86-52127 • NORTH NO. 93-52656 ..:..._;.'..•.•.•.•. 162.92' ± •.'.: ',; .a 338.80' ± Q .. .:4T4r4aXV.. '..,..,.,.,2.... ... -------"-'''''....:----<,..." -4:."...................'r '4‘'' 114-4‘‘..A. fock. \ DOCUMENT .•••••••.'.'.'.'.'.......'.'...ea.' , 5/P ,4 �`-� tNO. 2018-005070 '.'7.°8••••••••••••••••••••••* •••%• '"• ' DOCUMENT -� ata",.e. 96 ,-, 524.:••.••.•*•••*•*.•••••e� i•� ri1`'' ' r y _ NORTH LINE OF .In'.'. '.'.'.'.'.'.'.'.'.'.'.'i'''• •a NO. 2015-010933 / 4 �yhp'` BRYANT ACRES PLAT BONITA ROAD ',c.•.'.'.'.'.'.'.'.'.'.'.'.'.' . [] 4 (PLAT NO. 591) (COUNTY ROAD .'.'.'.'.'.'.'.'.'.'.'.'.'. 1 �''�' ky' `�• ,,, i12 " " S 89°01' W L.:........... DELAYED ANNEXATION AREA- r'':•• 21.02' ± 6 f So'. *} ••••••••••••••••••• PART OF LOT 6 BONITA s.8s° IJ,. , -- : '•• - - - - - t,a3/:•••••••••• MEADOWS (PLAT NO. 285) IY 14-3' _ re Q s Y �74.3a r>'89n-�i-rF C. �-r7rj Lf� .......... 7,-, rs^rr rrT `. 7`yl NO 929 ' -• - - - - Q - - ' DELAYED ANNEXATION AREA-A PORTION OF U. i ...__._ *.-. _ MEADOW AVENUE, 227' ± IN LENGTH, CREATED S89°01' W N20°10' E 101.25' ± 12.8' ± ' BY BONITA MEADOWS (PLAT NO. 285) SAKE PAGE 2 OF TAX LOT: 700, 701, 705, TAX MAP: of °s SHEET 1 OF 1 \> ��° ATTACHMENT D 708, 800, AND 801 2 1 E 07AB ` ° ENGINEERING SCALE: 1" = 100' DATE: FEBRUARY 14, 2019 DEPARTMENT AN 18-0019 DELAYED °REG°N ANNEXATION AREA ATTACHMENT E BEFORE THE CITY COUNCIL 1 OF THE CITY OF LAKE OSWEGO 2 A PROPOSAL TO ANNEX TO THE CITY OF LAKE AN 18-0019 3 OSWEGO SEVEN PARCELS AND THE ADJACENT MEADOW AVENUE PUBLIC RIGHT-OF-WAY FINDINGS AND CONCLUSIONS 4 CONSISTING OF 5.0 ACRES AT 5165 CARMAN DRIVE, 5195 BONITA ROAD, 5215 BONITA 5 ROAD, 5200 MEADOWS ROAD 4950 MEADOW AVENUE, 4948 MEADOW AVENUE AND ONE 6 PARCEL WITH NO SITUS ADDRESS AT 21E07AB00700, DECLARING CITY OF LAKE 7 OSWEGO ZONING AND RESOURCE PROTECTION (RP) DISTRICT PURSUANT TO LOC 8 50.01.004.5(A-C); AND REMOVING THE TERRITORY FROM CERTAIN DISTRICTS 9 10 NATURE OF PROCEEDINGS 11 On September 18, 2018, the City Council directed staff to initiate proceedings to annex 12 remaining commercial "islands" to the City of Lake Oswego under ORS 222.750. Staff initiated 13 the annexation proceedings for the subject territory in response to this direction. 14 The territory includes a parcel with an office building at 5200 Meadows Road (TL 706) 15 and the adjacent Meadow Avenue right-of-way, each of which currently have Clackamas 16 County zone designations of Campus Industrial, and which are designated Campus Research 17 and Development on the Lake Oswego Comprehensive Plan Map. Also included are properties 18 at 5165 Carman Drive (TL 701), 5195 Bonita Road (TL 705), 5215 Bonita Road (TL 708), and 4948 19 Meadow Avenue (TL 801), each of which have Clackamas County residential (R-8) zone 20 designations and are currently in residential use. The territory also includes a parcel with no 21 situs address at 21E07AB 00700, and a parcel at 4950 Meadow Avenue (TL 800), together with 22 the remainder of the Meadow Avenue right-of-way, all of which also have Clackamas County 23 residential (R-8) zoning but which are not currently in residential use. All of the parcels and 24 right-of-way with Clackamas County residential zoning have Lake Oswego Comprehensive Plan 25 residential designations of R-7.5. 26 The described territory, comprising approximately 5 acres, is surrounded by the Page 1 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 corporate boundaries of the city. 2 HEARINGS 3 The City Council held a public hearing and received testimony on March 5, 2019. The 4 Council held the record open until March 12, 2019 for submission of additional written 5 testimony. On March 19, 2019, the City Council deliberated and made a tentative decision 6 approving the proposed annexation. 7 CRITERIA AND STANDARDS 8 A. Oregon Revised Statutes (ORS), City Boundary Charges; Mergers; Consolidations; 9 Withdrawals. 10 1. ORS 222.111(2): Authority and procedure for annexation. 11 2. ORS 222.750: Annexation of unincorporated territory surrounded by a city. 12 B. Metro Code. 13 1. 3.09.050: Hearing and Decision Requirements for Decisions other than 14 Expedited Decisions. 15 C. Lake Oswego Community Development Code 16 1. Section 50.01.004.4: Zoning of Annexed Areas 17 2. Section 50.01.004.5: Comprehensive Plan Map Designations Automatically 18 applied Upon Annexations; Exceptions. 19 D. Comprehensive Plan — Urbanization Chapter 20 1. Policy A-3: "The Urban Services Boundary (as depicted on the Comprehensive 21 Plan Map) is the area within which the City shall be the eventual provider of the full range of 22 urban services." 23 2. Policy C-2: "The City may initiate island annexations as allowed by state law to: 24 a. Create logical City boundaries; and 25 b. Provide economic and efficient provision of City services to existing and 26 proposed development within the subject area and to adjacent land." Page 2 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 3. Policy C-3: "Ensure that annexation of new territory or expansion of Lake 2 Oswego's Urban Services Boundary does not detract from the City's ability to provide services 3 to existing City Residents." 4 4. Policy C-4: "Prior to the annexation of non-island properties, ensure urban 5 services are available and adequate to serve the property or will be made available in a timely 6 manner by the City or a developer, commensurate with the scale of the proposed 7 development." 8 EXHIBITS 9 The exhibits listed below were submitted and accepted as part of the record in these 10 proceedings: A. Ordinance 11 A-1 Draft Ordinance 2812 Attachment A: Map of Proposed Annexation, 12/18/18 12 Attachment B:Sensitive Lands Map 12/18/18 Attachment C:Criteria, Findings, Conclusion and Effective Date, 01/16/18 13 Attachment D: Legal description and tax map of 5200 Meadows Rd (TL 706) and the adjacent Meadow Avenue Public right-of- 14 way Attachment E: Legal description and tax map of 4948 Meadow Ave. (TL 15 801); 4950 Meadow Ave. (TL 800); 5165 Carman Dr. (TL 701); 5195 Bonita Rd. (TL 705); 5215 Bonita Rd. (TL 708); 16 the property with no situs address (TL 700) and the remaining portion of the Meadow Ave. right-of-way 17 B. Staff Reports C-1 Council Memo, 03/13/16 18 Attachment A:City Council Meeting Minutes Excerpt, 07/17/18 Attachment B:City Council Meeting Minutes Excerpt, 09/18/18 19 C. Letters 20 F-001 Email from Sherri Whiteman, 03/11/19 F-002 Letter from Mike Robinson, 02/28/19 21 F-003 Letter from Mike Robinson, 03/05/19 F-200 Letter from Lake Forest Neighborhood Association, 03/05/19 22 F-201 Email from Kate Myers, 03/11/19 F-202 Letter from Carolyn Krebs, 03/12/19 23 F-203 Letter from Wight Family Trust, 03/12/19 F-204 Letter from Ben and Laurel Mahar, 03/12/19 24 F-205 Letter from Ben and Laurel Mahar, 03/12/19 F-206 Email from Laural Mahar, 03/12/19 25 F-207 Letter from Mike Robinson on behalf of WKL Investments Airport, LLC 03/12/19 26 F-208 Email from Cathy Shroyer, 03/12/19 Page 3 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 FINDINGS AND REASONS 2 As support for its decision, the City Council incorporates the staff Council Report for the 3 March 5, 2019, meeting with all exhibits; the additional staff Council Report dated March 13, 4 2019, with all exhibits; and the staff's proposed findings and conclusions presented as 5 Attachment C to Exhibit A-1; as well as the March 18, 2019 legal memorandum from the City 6 Attorney for AN 18-0019, a copy of which is attached to these findings as Exhibit 1; 7 supplemented by the further findings and conclusions of the City Council below. In the event of 8 any inconsistency between the incorporated materials and the City Council's supplemental 9 findings and conclusions, the supplemental findings and conclusions control. 10 Following are the supplemental findings and conclusions of this Council: 11 1. Annexation Effective Date for 5200 Meadows Road. 12 ORS 222.750 mandates a minimum three-year delayed effective annexation date for 13 properties that are zoned for and in residential use at the time an "island" annexation is 14 initiated. The parcel at 5200 Meadows Road is commercially-zoned and in commercial use as 15 an office building. The owner, WKL Investments Airport LLC ("WKL"), through an LLC member 16 and legal counsel, urged that the City Council nevertheless establish a similar three-year 17 delayed effective annexation date for that property. WKL testified that the building has 60 18 individual offices plus an additional 144 "virtual tenants" who receive a number of services, 19 including use of the business address and conference facilities. WKL stated that many of the 20 tenants chose this location in part because Clackamas County does not require business 21 licenses. The tenants will be required to have Lake Oswego business licenses after the property 22 is annexed. WKL urged that a three-year annexation deferral would assist these small 23 businesses in adjusting to this requirement. 24 WKL also submitted 45 identical letters signed by tenants stating their opposition to 25 annexation because of the paperwork and fee necessary to obtain a business license, 26 confirming that they chose the building in part because Clackamas County has no business Page 4 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 license requirement, and also asking for a three-year delay if the Council nevertheless decides 2 to annex the property. 3 City business license fees are currently $80 for businesses with one to three employees, 4 $110 for four to 10 employees, and $150 for more than ten employees. These fees are 5 discounted for annual renewals. The City Council understands why the tenants would prefer 6 not to pay these fees or to fill out a business license application. However, the Council finds 7 that the application and fee requirements are not unfair, burdensome or excessive, and would 8 typically be a relatively minor part of the cost of operating a business. In any event, there is a 9 lack of evidence establishing that the license application and fee requirements are of a 10 magnitude sufficient to warrant the Council exercising its discretion to delay the annexation 11 effective date for the 5200 Meadows Road. 12 2. Notices 13 The owners of 5165 Carman Drive and 5195 Bonita Road testified at the March 5, 2019 14 public hearing that the first two postings of the annexation proceedings showed an incorrect 15 zoning designation for their properties, and complained that the multiple notices were 16 confusing. They also testified that they had not received notice of the opportunity to contest 17 the Resource Protection (RP) Overlay District designation on their properties. They asked that 18 the annexation proceedings be delayed to give them more time to respond. 19 The noticing requirements are outlined in the March 13, 2019 staff report (Exhibit C-1) 20 submitted partly as a response to the March 5, 2019 testimony about notices. A "Measure 56" 21 notice must be sent to property owners regarding the proposed zone designation changes at 22 least 20, but not more than 40, days before the first hearing (ORS 227.186). In addition, notice 23 of the annexation proceedings must be mailed to the owners of property within the territory to 24 be annexed at least 20 days before the public hearing; and a notice must be posted on the site. 25 (ORS 197.763; Metro Code Section 3.09.030). Finally, properties having Comprehensive Plan 26 Map sensitive lands district designations (including RP Overlay Districts) must be notified that Page 5 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 they have 20 days prior to the initial public hearing to contest the designation using the map 2 correction process under LOC 50.07.004.8.b. (LOC 50.01.004.5.b.). 3 Per Exhibit C-1, on December 7, 2018, a "preliminary courtesy notice" of the pending 4 annexation proceedings (then scheduled for February 5, 2019) was sent to all property owners 5 in the territory. On December 18, 2018, a formal notice was sent to the owners of all properties 6 with Comprehensive Plan RP Overlay District designations, informing them of the opportunity 7 to contest the designation by January 16,'2019 (20 days before the initially-scheduled hearing 8 date). An email response to this was received from the owner of 5125 Bonita Road. On January 9 15, 2019, a Measure 56 notice was mailed to all the owners, and the following day the first 10 notice of the annexation public hearing was mailed and signage was posted as required, all for 11 the February 5th meeting date. 12 After staff discovered that the zoning map in the January 15' notice showed incorrect 13 zone designations for some of the properties, the public hearing was rescheduled to March 5, 14 2019, a second Measure 56 notice was mailed on January 29th, and the second notice of public 15 hearing was mailed and posted on January 30th--with the zone designations corrected. 16 Thus, the owners were aware of the proposed annexation of their properties for 17 approximately three months before the public hearing was held. The required Measure 56 18 notices and public hearing notices were mailed 21 and 20 days in advance of the initially- 19 scheduled hearing date, and then again 35 and 36 days before the March 5th re-scheduled 20 hearing date. While it is unfortunate that the initial notices showed incorrect zone 21 designations, this was corrected in the notices for the rescheduled public hearing—which were 22 mailed and posted well in excess of the required 20-day notice period. In addition, the record 23 was held open for seven days after the public hearing to provide an additional opportunity to 24 submit written testimony. The City Council finds that the corrected notices and re-scheduled 25 hearing date cured any alleged procedural defect relating to the earlier incorrect labeling of 26 zoning designations, and also finds that there has been no showing of resulting prejudice to a Page 6 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 party's substantial rights. 2 As for the testimony of the owners of 5165 Carman Drive and 5195 Bonita Road that 3 they received no notice of the opportunity to contest the RP District Overlay designation, staff 4 subsequently reviewed the record and re-confirmed in Exhibit C-1 that all property owners with 5 RP designations were mailed the required "Notice of Proposed Sensitive Lands Designation and 6 Opportunity to Object" on December 18, 2018. The City Council finds that the requirement in 7 in LOC 50.01.004.5.b. to so "notify" the owners is satisfied by mailing the notice. The Code 8 does not require the city to prove that the owners received, read, or remembered the 9 notification. Although the owners here maintain they did not receive the notice, the City 10 Council finds that there is substantial evidence establishing that the required notice was sent, 11 and therefore finds that the requirement to "notify" the owners was satisfied. 12 From Exhibit C-1 it appears that the December 18" notice of the Sensitive Lands 13 objection opportunity referenced timelines related to the originally-scheduled February 16' 14 hearing date. The Council finds that not mailing another notice of the Sensitive Lands objection 15 opportunity when the hearing date was re-scheduled is not a procedural flaw. Nothing in LOC 16 50.01.004.5.b. requires re-sending this notice each time a hearing is postponed or rescheduled. 17 The City Council notes that, even after annexation, property owners retain the 18 opportunity to contest an RP designation under the same map correction criteria in LOC 19 50.07.004.8.b.—currently without a filing fee. The accuracy of the RP designation on the 20 subject properties is not before the Council in these annexation proceedings. 21 One of the two owners of 5165 Carman Drive and 5195 Bonita Road testified as to a 22 recent death of a parent and current medical issues as warranting a delay of the annexation 23 proceedings. The City Council certainly sympathizes with the owner with regard to these 24 unfortunate circumstances. As detailed above, all property owners have known of the pending 25 proceedings for three months, and have received multiple hearing notices, coupled with an 26 additional opportunity to submit written testimony after the hearing. The owner did not offer Page 7 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 how these time periods were inadequate in light of her described circumstances, and the 2 Council finds no evidence of prejudice to a substantial right of the owner that would result from 3 not delaying this matter for yet another hearing. 4 3. Previous Council Statements on Annexing Residential Property 5 Written and oral testimony was received from a number of neighborhood association 6 representatives and others to the effect that the City Council, in its earlier discussions of 7 annexation policy, had indicated or "promised" that it would not undertake "island" 8 annexations including residential properties, and that the current annexation proposal amounts 9 to the Council "going back on its word." As detailed in Exhibit C-1, during study sessions on 10 annexation policy, the Council discussed its support for island annexation of commercial 11 properties, including the "six property island annexation" near Meadows Road—referring 12 specifically to the subject island territory. While the Council supports "friendly" annexation of 13 residential-only islands and individual properties, nothing in the Council's previous discussions 14 has been inconsistent with annexing islands that include commercial parcels together with a 15 small number of residential properties. Again, this particular island territory was specifically 16 identified in those discussions. The city cannot use the island annexation process under ORS 17 222.750 to annex only a portion of an island. Costco v. City of Beaverton, 343 Or 18, 161 P3d 18 926 (2007). In any event, study session discussions do not create binding criteria for 19 subsequent decision-making. As detailed in the incorporated materials, the island annexation 20 in this case is consistent with applicable Comprehensive Plan policies, notably Policy C-2 of the 21 Urbanization Chapter of the Plan, which provides that the City may initiate island annexations 22 as allowed by state law to create logical City boundaries and to provide economic and efficient 23 provision of City services to existing and proposed development within the subject area, and to 24 adjacent land. Nothing in this policy, or any of the other applicable annexation criteria, 25 prohibits annexation of islands containing a mix of commercial and residential parcels. 26 4. Annexation Effective Date for Residentially-Zoned Parcels. Page 8 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 The City Council received testimony from residential property owners requesting an 2 extended ten-year effective date for annexation, rather than the three-year minimum in ORS 3 222.750, in order to give them time to prepare for and adjust to increased costs of being within 4 the city. One of the property owners also testified as to health problems and a death in the 5 family as additional reasons for an extended effective date. The Council finds that, in light of 6 the particular circumstances surrounding the residential properties within the territory, 7 including without limitation health and family issues, potential for requested map correction 8 proceedings for the RP Overlay designation, and the asserted misunderstanding of the City 9 Council's approach to residential properties within an island including commercial properties, 10 the Council should exercise its discretion to extend the effective annexation date for the 11 residentially-zoned properties to ten years from the enactment of Ordinance 2812. In order to 12 minimize piecemeal sequencing, this should apply not only to the parcels that are both 13 residentially zoned and in residential use, but instead to all residentially-zoned property in the 14 territory, including Lots 700 and 800 and the residentially-zoned portion of the Meadow 15 Avenue right-of-way. 16 5. Other Legal Issues. 17 Other legal issues, including those raised in the WKL Letter of March 12, 2019 (Exhibit F- 18 207), are addressed in the March 18, 2019 legal memorandum from the City Attorney for AN 19 18-0019, a copy of which is attached to these findings as Exhibit 1 As stated above, this 20 memorandum is incorporated as part of the findings of the City Council. 21 CONCLUSION 22 The City Council concludes that AN 18-0019, as modified to be consistent with these 23 findings, complies with all applicable criteria and should be approved. The Council also 24 concludes that proposed Ordinance 2812, as modified to be consistent with these findings, and 25 which implements AN 18-0019, should be enacted. 26 Page 9 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 EXHIBIT 1 Legal Memorandum 2 3 :': • MEMORANDUM 4 o • 5 �� , • 6 7 TO: Mayor Kent Studebaker Members of the Lake Oswego City Council 8 FROM: David Powell,City Attorney 9 SUBJECT: Legal Memorandum(AttJ 18-0019,Ordinance 2812); 10 Addressing Legal Arguments in the March 12,2019 submittal by WKL Investments Airport,LLC(Exhibit F-207) 11 DATE: March 18,2019 12 This memorandum addresses the legal issues raised in the March 12,2019, letter from 13 legal counsel for WKL Investments Airport, LLC("'WKL")in AN 18-0019. WKL is the owner of the property at 5200 Meadows Road,which is one of the parcels subject to the proposed "island" 14 annexation. That parcel is currently in commercial use as an office building. 15 1. Tax Lots 700 and SOO. 16 As noted in Section 4 of WKL's March 12,2019,letter,Exhibit F-207(the"WKL Letter"), the draft findings submitted by staff(Attachment C to draft Ordinance 2812)includes a section 17 listing the effective dates for the annexation(page 11). This describes six of the subject properties as being"zoned for and in residential use." The draft findings state that the 18 annexation of all six of these properties will have an effective date of March 7,2022.If the annexation proceedings had concluded as of the first hearing,this would have been over three 19 years from the date the annexation would have been proclaimed via Ordinance 2812. For non-consensual annexation of territory surrounded by the corporate boundaries of 20 the city(Island annexations"),ORS 222,750(5)requires that,for properties that are"zoned for and in residential use,"the city"shall"specify an effective date at least three years and not 21 more than 10 years after the annexation is"proclaimed"approved. 22 WKL points out that,while all six properties are zoned for residential use,Tax Lot 700 is listed In the staff report Property Tax Summary"Land Use"column as"Telecom,"and Tax Lot 23 800,while listed as SFD(single family dwelling), is vacant. WKL asserts that,because these two parcels not in residentialJse in addition to being residentially zoned,the city"may not legally 24 defer the effective date of these two tax lots." 25 503.675.3994 390 A Avenue PO BOX 369 Lake Owego,OR 97034 wmv,ci.oswego.ar_us 26 Page 10 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 Page 2 of 5 1 2 This assertion is incorrect. ORS 222.750(5)mandates at least a three-ye a r defe rra l for 3 properties that are both residentially-zoned and in residential use. It does not prohibit deferral for other properties. In fact,in the same letter,WKL asks fora similar effective date deferral 4 for its own property at 5200 Meadows Road (Tax Lot 706),which is neither residentially-zoned 5 nor in residential use: 6 " WKL renews its request to the City Council that if it annexes Tax Lot 706,that it do so with a three-year deferral of the effective date to March 7,2022,the same 7 date as the six residentially-zoned properties to be annexed by the City as part of the island annexation. No local or state law prohibits deferral of the effective 8 date of the annexation of Tax Lot 7J6." WKL Letter, page 6(emphasis added). 9 Likewise, nothing prohibits the city from deferring the effective date for Tax Lots 700 10 and 800 to be the same as for the other residentially-zoned properties. 11 The WI(L Letter argues on page 3 that the city must re-notice the annexation proceedings because the "incorrect determination of the deferral date"for Tax Lots 700 and 12 800 prejudices the substantial rights of the owners,who might have taken different positions if they,had known their properties are not subject to a deferred effective date. However,the 13 staff proposal is to establish the same deferred date for these lots as for the other residentially- zoned parcels—the same deferral as that proposed in the draft findings. There can be no 14 prejudice to these owners by proceeding with the annexation under the same terms. Finally, 15 neither owner has objected based upon substantial prejudice, and WKL does not assert the authority to object on their behalf. 16 If the City Council proceeds with the annexation as proposed,the CounciFs adopted 17 findings, and the wording of the final ordinance,should reflect that the deferral for Tax Lots 700 and 800 is not based on the mandate in ORS 222.750{5}. 18 2. Effect of Residential Deferred Annexation Date on Status of WKL Property. 19 20 WKL argues that, if the effective date of annexation of the residentially-zoned properties is deferred for three years,WKL's commercial property will not be an "island' on the 21 effective date of its annexation, and therefore it can't be annexed under the non-consensual "island" process authorized by DRS 222.750. WKL states that this argument is supported by 22 the Oregon Supreme Court decision in Costco tf City of Beaverton, 343 Or 18, 161 P3d 926 {2007)1, WKL inadvertently included a copy of the earlier Court of Appeals decision in that case 23 as an exhibit to its letter, rather than the cited affirming Supreme Court opinion{Attachment 1 to this Memo). 24 25 WKLcited the Supreme Court opinion as 341 Or 54&. However that citation is actually only to the order granting 26 the petition for review_ The Supreme Court's opinion appears at 343 CT 18. Page 11 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 Page 3 of 5 2 In the Costar case,the city of Beaverton attempted to annex only a portion of territory constituting an "island."The version of ORS 222.750 in effect at that time said that when 3 territory is surrounded by a city"it is within the power and authority of that city to annex such 4 territory."Beaverton argued that, because the legislature conferred upon the city the power to annex the whole island, it also conferred power to annex a part of the whole. 343 Or at 25, 161 5 P3d at 929,930. The Supreme Court disagreed,noting that the word "such' refers to something previously mentioned and indicates that it is"the identical thing," fd.The court 6 concluded therefore that the territory that is encircled to form the island in the first instance is the territory to be annexed under the island annexation statute, "no more and,also,no less," 7 Id. 8 However,the Castro decision did not review or consider circumstances where,as here, a city does not move to annex only a portion of an island, but instead annexes the entire island 9 through a single proceeding, resulting in a single "proclamation of annexation'for the entire 10 island, and implemented through a single ordinance—but specifies differing effective dates for properties within that island as allowed or mandated by law. Here,the city boundaries 11 completely surround the territory to be annexed,whether or not there are varying "effective dates" within that territory. As a result, even if the text of ORS 222,750 today were the same as 12 the text interpreted in Costco, nothing in that decision invalidates the current island annexation process. 13 Importantly, however,the text ORS 222.750 was substantially amended after the date 14 of the Beaverton annexation proceedings reviewed in Castro. Appended to this memo as 15 Attachment 2 is Chapter 654 Oregon Laws 2007,Section 1(2007 House Bill 2760),which substantially amended the statute in a number of ways (new text in bold type;deleted text in 16 bracketed italic type).. The text granting the "authority of that city to annex such territory" (cited above)was replaced with the city may annex the territory pursuant to this section.' 17 Subsection (2). The bill also added provisions requiring delayed effective dates for residential properties,and requiring the city recorder to notify the county clerk"in which any part of the 18 territory subject to delayed annexation is located"within certain time periods after the "city proclaims the annexation approved"as well as within time periods "before the annexation 19 takes effect."Subsection 5. This bill also added a provision stating that, notwithstanding the mandated delayed effective date for certain properties, "property that is subject to delayed 20 annexation becomes part of the city immediately upon transfer of ownership." Subsection(6). 21 These amendments demonstrate that, in the post-Costco version of ORS 222.750,the 22 Legislature clearly contemplated the possibility of differing effective dates for properties within an island,following a "proclamation' of annexation of the entire island. If instead the 23 Legislature intended that the non-consensual island annexation opportunity is available only where properties within the island all have the same zoning, use or effective date,it could have 24 said so. Certainly, nothing in the statue's language supports WKI's argument that a parcel that is part of an island at the time an annexation is proclaimed retroactively loses that status if an 25 adjacent property within the island has a later effective date. This is most obvious with the provision requiring a post-proclamation accelerated effective date upon transfer of ownership 26 Page 12 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 Page 4 of 5 1 2 (Subsection 6). Nothing in the statute limits this accelerated effective date to situations where all adjoining island properties have already become part of the city—especially since, under 3 WKL's theory,the adjoining properties within the original island could not have become 4 annexed prior to the transfer of ownership of the subject parcel, as they too would have retroactively lost their island status, 5 In short, nothing in the language of ORS 222.750,or in the Costco interpretation of an 6 earlier version,suggests that the status of parcels determined to be within an island at the time an annexation is proclaimed are to be retroactively re-determined upon future (and sometimes 7 shifting)effective dates. 8 3. County Consent to Annexation of Meadow Avenue 9 There are a number of annexation processes authorized by state law. One process is 10 provided under ORS 222.125,which allows annexation without an election or a hearing if the city obtains the consent of all the owners of land in the territory,and not less than 50 percent 11 of the electors residing in the territory. In Section 4C of the WKL Letter,WKL cites Aftomont Homeowners'AssHomeowners'Association inc., v City of Happy Volley, 74 Dr LUBA 126(2016)as holding that 12 the county was the "owner"of unincorporated right-of-way lying within territory Happy Valley endeavored to annex under ORS 222.125, and that therefore the county's consent to the 13 annexation was required. WKLarguesthat, under ORS 222.125 and the LUBA decision, Lake Oswego is required to have the county's consent in order to annex the Meadow Avenue right- 14 of way 15 This argument is puzzling as WKL is aware that Lake Oswego is here using an entirely 16 separate process under ORS 222.750,which allows annexation of territory su you ided by the corporate boundaries of the city"with or without the consent of anyr owner of real property 17 within the territory or resident of the territory."ORS 222.750(4). The Meadow Avenue right-of- way is part of the"island"territory to be annexed under that statute. Consequently,the 18 county's consent as a property owner is not required. 19 The annexation process under ORS 222.125 is not being used in these proceedings. If it 20 were,the city would need not only the county's consent, but also the consent of all other p ro perty owners-including WKL. 21 Although academic, it is worth mentioning that WKL is incorrect in asserting that the 22 county has not consented to annexation of Meadows Avenue. WKL's arguments seem to conflate annexation of a right-of-way(bringing the right-of-way within the city boundaries)with 23 transferring road jurisdiction{transferring responsibility for administering and maintaining the right-of-way). Transfer of road jurisdiction often involves a separate process from annexation. 24 The Altamont case found that a provision of the Clackamas County/Happy Valley Urban Growth 25 Management('"UGMA")stating that the city will assume jurisdiction of county roads within an area annexed to the city does not amount to the county's written consent to the annexation of 26 those roads.WKL argues that the Clackamas Cur,..ty/Lake Oswego UGMA("Lake Oswego Page 13 of 24- FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 Page 5 of 5 2 UGMA'") contains"the same provisions" as the UGMA considered in Altarnont and therefore the Lake Oswego UGMA cannot be considered as including county consent to annexing 3 roadways, 4 The cited portion of the Lake Oswego UGMA contains two provisions(see Exhibit 4 to 5 WKL Letter at Page 6 under"City Annexations"). One deals with transfer of road "jurisdiction" upon annexation,similar to the UGMA provision considered in Altomant. However,the second 6 Lake Oswego provision states "[t]he City annexation proposals shall include adjacent road right- of-way to properties proposed for annexation. The County shall not oppose such annexations." 7 This clearly amounts to written county consent to annexation of adjacent county roads. Contrary to WKL's assertion,the Aftomorit opinion cited no similar annexation provision in the 8 Happy Valley UGMA,and certainly did not rule that such a provision would not qualify as county consent under the ORS 222.125 process. 9 10 4. Reasonableness 11 WKL cites Portland General Electric v. City of Estacada, 194 OR 145(1952)as holding that annexatio is must be reasonable. However, WKL does not specify what fails to meet this 12 standard. It instead simply states,"[a]n annexation that does not satisfy all statutory requirements is unreasonable." Presumably,WKL is referring to the statutory arguments made 13 elsewhere in the WKL letter,all of which have been addressed in this memorandum. 14 5. Conclusion 15 The legal arguments in the WKL Letter are without merit. 16 17 ATTACHMENTS 18 1. Costco v. City of Beaverton, 343 Or 18, 161 Pad 926(2007) 2. Chapter 654Oregol Laws 2007,Section 1(2007 House Bill 2750) 19 20 21 22 23 24 25 26 Page 14 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 ATTACHMENT 1 2 3 926 Or_ 161 PACIFIC REPORTER, 3d SERIES 4 343 Or. LS Decision of Court of Appeals affirmed; t TCO WHOLESALE CORPORATION, LUEA's order reversed;remanded. Petitioner, Gillette, J., dissented with an opinion in 5 and which De Mums,C.J"joined. 6 Henry Kane,Intervenor-Petitioner, 1.Municipal Corporations 1) 7 Can OF IBEAVERTON', Respondent, Legialatian prohibiting city from annex- Wells Real Estate Funds,Inc., ing territory in any manner without obtain- 8 Respondent on Review, ing epprova]of the owners of the property to be annexed did not apply retroactively to v. dispute concerning eity's partial inland an- 9 City of Beaverton,Petitioner on Review. mica of certain territory, as the city an_ Bold, LLC,Petitioner, nexed the territory at issue prior to the 10 arid legislation's effective date, and the annex- ation was a final appealable decision. West's' Henry Kane,Intervenor-Petitioner, Or.Rev_ Stat_ Arm_ §§ It 7_015(11)(a)(A)r 11 1R7b25(L};Lawa 2306,c.&14,11. 12 City of Beaverton,Respondent 2. Municipal Corporations29(4) C.E.John Company, 'Inc., Petitioner, Although city's boundaries surrounded 13 territory and created an°`istand,'r city's island and annexation authority, i_e, its statutory au- Henry Kane,Intervenor-Petitioner, tharity to annex property without consent of 14 property owners if the city boundaries sur- rounded the property to be annexed,did not City of Beaverton,Respondent include authority to annex only a portion of 15 (L[UEA sos. 2005-111 24Urr-0•16,2005-4150, the island when the city boundaries did not 2005-053S CA Al44d9S; SC S53777). completely and contiguously encircle that 16 portion- West's Or.Rev, Stat. Ann_ Supreme Court of Oregon § 222.751 En Banc. 17 Argued and Submitted march 5r 2007_ 3. Municipal Corporations 29(4) Decided June 7, 20(1. A sty dces not have authority to engage 18 Background:. Property owner sought ju- in island annexation pursuant to statute, dicta] review of order of the Land [:se to annex property surrounded by citye 19 Board of Appeals (LUBA) that. affirmed boundaries witlwut consent of the property ownerar if eity's boundaries do not completely civ's derision to annex certain property and contiguously encircle the property to be 20 pursuant to annexation statute_The Court. annexed_ vveat'e Dr,Res_ Stat. Ann. of Appeals,20G OrApp_3S°, 136 P.3d 1219, 222150. reversed and remanded_City filed petition 21 for review_ d. Municipal Corporations 29(4) Holding: The Supreme Court,Walters,J_, Statute requiring that territory be 'sur- 22 held that city's authority to engage in is- rounded by"city beundarica in order for city ]and annexation did not permit partial is- to engage of island annexation, i e, annex- 23 ]and annexation when fife portion le be ation of the surrounded property without annexed was not completely and contigu- consent of property owners, requires that ous]y encircled by city's boundaries. city boundaries encircle the territory com- 24 25 Attachment 1 26 Page 1 of Page 15 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 1 ATTACHMENT 1 2 3 COUFCO WHOLESALE CORP. v. CITY OF BEAFEHTON Or_ 9r9 j car as 16I P9d BSd(Or_20117l plete]y and contiguously_ West's Or_Rev_ review. With him on the brief was. William 4 Stet_Ann_§ 2t. .750. J_Scheiderich_ See publication Woods and Phrases Jack L_Orchard,of Ball Janik LLF,otherParty 5 for other judicial constructions and clef land,argued the cause and filed the response initions_ and brief for respondent on review_ With 5. Municipal Corporations 229(41) him on the response and brief was. Dana L. 6 under statute governing city's island an- (Craw cauk_ nexation authority,LE its authority to annex Thomas Sponsler, of Beery, Elsner 8e 7 property without consent of property owners Hammond LLP, Portland, filed the brief for if the city boundaries surrounded the proper- amicus curiae League of Oregon l tie6. ty to be annexed, the territory that is encir- 8 cled, completeb and contiguously, by cit'a WALTERS,J. boundaries to form the island in the fret JUnder state statute, a city may annex 9 instance, I.E. the territory that map• be an- property that is contiguous to the city by hexed— no mare andr also, na leas. West's ohi-fining either the consent or majority vote Or_Rev.Stan_Ann_§ P22.7aU_ of the owners of the property to be annexed. 10 A city may annex property without such 6. Municipal Corporations 956(1.) approval if the city boundaries "surround" 11 Cities have the power to obligate those the property to be annexed,a form of annex- who own property within thci r boundaries to atinet referred to as an island annexation. In shoulder municipal burdens.such as pstiti2nent this roan we decide whether a city may annex 12 of taxes; however, cities do not have inher- only part of an island that it surrounds wwith- ent, home-rule authority to impose those out the consent or majority vote of the own- same obligations on those outside their bcr- 13 ders_ era The territory that gives rise to the dispute 7. Municipal Corporations 29(2) in this case is made up of property owned by 14 Cities do not have inherent, home-rule Wells Real Estate Funds, Inc. (Wells), re- authority to extend their borders to annex spatudettt on review in this court, and Nikes 15 unwilling property owners and make them Inc. (Nike)-t The City of Beaverton [city} subject to municipal obligations_ extended its boundaries and encircled that territory SO that its boundaries wore contigu- 16 9. Municipal Corporations mat ova to the territory on ail sidca_ It is undia- Cities can extend their boundaries with- puted that that territory thus became an 17 out the consent of the affected property own- island, within the meaning of the island an- ers and against their will if state legislation nexation statute, and that Oregon law au- grants them the authority to do so_ thorixes the city to annex that territory in its 18 entirety without the approve] of the owners 9. Municipal Corporations ? of property in the territory_ It is legislative, and not home-ruler au- Ill In 20de1ti the city adopted a resolution 19 0-writ/ that a city exercises when it acts extraterritarially. announcing a policy to annex all adjacent urban unincorporated areas over time and 20 directing the mayor to annex the territory at issue in its entirety, including both the prop On review from the Court of Appeals_* 21 erty owned by Wells and the property owned Alan Andrew Rapp]eyea,of Beaverton City by Nike. In MI5, however, the city excluded Attorneys Office, Beaverton, argued the from further annexation proceedings all 22 cause and filed the brief for petitioner on property owned or ]eased by Helier Aa a 'Appeal From Land Ilse Bo ra of Appeals. 206 2 The annexation ordinance that the city adopted 23 Oi-Jpp.38a.136 P.3d L2 Lg(21106)_ included the Castro property_ Coleco challenged I. The territory also included property owned ley the a"".+.Hm.el a city hmr E and by appeal in Cosico Wholesale Corporation(Canna). 24 25 26 Attachment 1 Page 2of8 Page 16 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 928 Or- i61 PACIFIC REPORTER, 3d SERIES 3 result, although the city boundaries contin- the annexing sty and a body of water" ued to form a ring around the territory as a Coatm 4i7wfeaoIe Carp. a City of Beaverton, 4 whole, and although the Wells property was 20€ Or.App- 3S0, 398, 126 P.3d i2i9 (200C). located within that ring, the city boundaries We granted the city'a petition for review l were no longer y oantiguouen to the We begin our retiiex with the text.of ORS 5property then to annexed,the V4es prop- 222-750r which authorises island annexation erty jzron all sides- The Nike property of territory"surrounded by city boundaries stood between the city boundary and the 6 Wells property on one side. The city never- "WItell €errttrxrW 12ot ati€ham a citlf as sarr- the]esa asserted that it could annex the Wells 7r21"ode-d IT the o°rla°l'ote boeueda °f 7 proPertar the city or by the corporate boundaries of the city and the ocean shore or a stream, 'The subject properties are within islands bay, lake or other body of water, it is 8 defined by the Cit}ra corporate lirtuta. Some of the properties that are the subject Leftmaim the power and arcthorat} of that of this proposed annexation constitute only ends terrafrm- However, 9 part of an island- The statutory provision this section does not apply when the te. entire- cited above[ORS 22-750]does not require tort'not within a sty is surrounded Arcr +tion or an entire island.„, ly by water. Unless otherwise required by 10 its cbarterjannexation by a city under Wells appealed the annexation of its prop- this section shall be by ordinance or res - 1 �y to the Land Use Board of Appeals lotion subject to referendum_with or with- 1 (LU]3A)- After LUSA affirmed the cit3r'a out the consent of any owner of property annexation of the Wells property, Wells within the territory or resident in the ter- 12 sought judicial review in the Court of Ap- ritory" peals- The Court of Appeals reversed, con chiding that, under the applicable statute, (Emphasis added-) 13 ORS 222.751), "the territory to be annexed [a,2.] A. shown in the figure below_ the must be completely enclosed by and contigu- territory conaisting of the Wells property 14 one with the corporate boundaries of the and the Nike property is indisputably "sur- annexing city or the corporate boundaries of rounded by"the city boundaries- 15CityTerdtag y 16 I M 17 1 pry only paitillecePAgetpus 18 r WI*t turkey t -. y 19 } 20 the Land Use Board of Appeals, but then de- Se ORS L47,825(1) (LUBA jurisdiction); ORS dined to seek further rwniew. 197.615(11Xa]{,t) (defining land use derision). The Oregon legislature thou enacted legislation, 21 3- The city used the plural islands"because the which became effective on September 2, 2035, city also annexed other property in other islands. providing that "the City of Beaverton may not None of those properties is involved in this pro- annex territory in any manner that do•s not carding. require the city to obtain approval of the ma- 22 drabs of or lice property owners in the territory... 1- There has been subsequent legislation related Or. Laws 2005, ch. grid, § L. Ilse Legislature to this dispute, but we are satisRed that the provided that the rt became effective upon its 23 Legislation has not rendered the dispute moot. passage and did out provide that that section was On March 1,2005,the city annexed the territory retroactive- fd§ 12.The ban will lapse January at issue- That was a Final appealable decision_ 2,200g. /of§ LO- 24 25 Attachment 1 26 Page 3 of 8 Page 17 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 COSMO WHOLESALE CORP. v. DTI OF 13EAYEFt7ON Or. 92J car as 161 P3d 426(OE non 3 The city agrees that,as a prerequisite to the lie adjacent to all around or in most di- exercise of its statutory island annexation rections." fd 4 authority, its boundaries must contiguously using F.h e o ak. sense the word " ur ."aro-und and completely encircle the territory m ques- and applying it to the figure shown above_it lion and create such an island_ The city is clear that the city boundaries "surround" 5 argues, however, that, once its boundaries the territory made up of both the Wells and surround and create such an island, it is Nike properties_ The city boundaries form a entitled to annex all or any part of that ring around that territory,extend around the 6 island_ The city contends that, because the edge of it,constitute a circular boundary for Wells property is within the circle of its it, and lie adjacent to it all around_ As a 7 boundaries, it too is "surrounded by" city prerequisite to annexation under ORS boundaries_ The city contends that the only 222.750r the corporate boundaries of the city contiguity that is required is the partial con- necessarily must surround territory in such a 8 tiguity of the city territory and the Wells completely encircling and contiguous fashion property that is represented by the solid line or no island would be formed in the first 9 shown on the figure above. Wells responds instance. that ORS 222.750 allows only annexation of Id] The city points to the part of the territory that is completely and contiguously dictionary definition that provides, Ito] lie 10 surrounded by city boundaries and that, adjacent to all around orr rre./east direr/ions" when the city eliminated the Nike property (emphasis added). It contends that,once the 11 from its annexation plans, the city bound- island is formed and city boundaries "srrr- ari.es no longer surrounded the territory to round" a territory completely and contigu- be annexed in the manner required by the oust, they also "surround" any part of that 12 island annexation statute. The issue pre- territory, even though they he adjacent to seated is whether a city has authority to that part only"in most directions."To accept 13 engage in island annexation pursuant to ORS that argument.,we would be required to give 222.750 if city boundaries do not completely the term"surround"as used in ORS 222.750 and contiguously encircle the property to he two different meaningE (1} to create an is- 14 annexed. land, city boundaries must lie adjacent to drirrie first consider the wards"surrounded territory all around it; and(2) to annex part 15 by,"as used in ORS 22a750r and consult the of an island,city boundaries need Lie adjacent dictionary. The word "surround" means to to territory only 'Sin most directions:" The be situated or found around, about, or in a words "surrounded be cannot have both 16 ring around. See 4i'eb714- 2 Third New f/.t7 meanings, because those wordsescribe Dictionary 2202 (unabridged ed. 2002) (pro- and limit the conditions that allow the exer- 17 aiding definitions)_ The senses in which that case of authority_ If"surrounded by" means word can be used are many. Some agggeEt a adjacent "in most directions," then ORS requirement of close proximity, if not conti- guity. 222.750 would impose no requirement that 18 Others seem to permit more distance_ city boundaries complete]y and contiguously 'To throng, press, or cluster around," as encircle the territory to create an island in 19 "[the] crowd throngted] the victor" complies the first instance_ We conclude that. in re- immediacy, as do"to envelop in or as if in a quiring that territory be "surrounded by" cloud or misty" or "to encase or cover hate city boundaries, the legislature required that 20 pulp around a core" Id. "To live aronnrl on city boundaries encircle the territory all or or most sides,""to form or be in a retinue PietetX and contiguously_ 21 [or] entourage," or "to be present around, [6] That conclusion does not, however, about, or near' all imply a greater range_ completely answer the city's argument The 22 fd Because ORS _750 uses"surround"in city contends that, because the legislature conjunction with"boundaries,"the sense that has conferred upon the city the power to most aptly fits our purpose is"to form a ring annex the whole island, the legislature also 23 around: extend around or about the edge of: has conferred the power to annex a part of constitute a curving or circular boundary for: that whole. To respond, we consider the 24 25 Attachment 1 26 Page 4 of S Page 18 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 930 Or 161 PACIFIC REPORTER, 3d SERIES 3 part of the statute beginning after the words Tillamook, 132 Or_ 332, 242-4,2r 124 P. 537 "surrounded by_" ORS 2.750 provides 11912J, In Thsrbes the court round it repug- 4 that, when "territory" is surrounded by city nant to its ideas of fairness and justice that boundaries,the city may annex"such territo- "sin enterprising municipal corporation"could ry_" "Such" refers to something previously subject those outside the city to the burdens 5 mentioned and indicates that it is the identi- of municipal taxation 'without their consent cal thing_ See >r'Va6stera at 2252 (defusing and against their wit]." Id at 414,125 P_43. 6 "such,' in parer as "previously characterised [S] That does not mean that cities cannot or specified. , FORE[4]ETITIONEO"}_ The expand without the consent of property own- most straightforward reading of the statute, era who have chosen to live outside their 7 and the interpretation that we adopt, is that confines_ Cities can extend their h-rundaries the territory that is encircled,completely and without the consent of the affected property contiguously, to form the island in the first owners and against their will if state legis]a- 8 instance, is the territory that ' be an- tiara grants them the authority to do so_ nexed—no more and,also,no less_ Mid-Coautl 5 310 Or_ at 1G1-64, 755 F2d 9 [6,71 In reaching that conclusion,we con- 541_ Sut, in considering the scope of that eider not only the text of ORS 222_750 but authority, we are caglaizant that the degree 10 also the statutory and historical conLest in to which the legislature permits a city to act which it fits_ People who purchase property uniiaterally is the same degree to which the make a choice to attain the benefitsr and legislature deprives a property owner of the 11 subject themselves to the burdens,of proper- ability to choose municipal affiliation,its!aun- ty ownership,some of which are determined efits,and burden_ 12 by the location of their property within or When the state legislature first enacted a without city limits_ Cities have the pewter to statute permitting cities to extend their bar- confer benefits on those who own property dens in 18,E32, the legislature required that a 13 within their boundaries, providing them with majority of voters in the city and that a services such as police protection_ Cities majority of voters in the territory to be 14 also have the Power to obligate those who annexed vote separately in favor of annex- own property within their boundaries to ation_ Or.Laws 1592,p.1120,§ 4,redifiaed oa shoulder municipal burdens,such as payment Lord's Oregon Laws, title X XV1r ch_ I, 15 of taxes. Oregon cities do not have inherent, 5 2209 (1.910). The legislature has main- home-rule authority to impose those same twined the requirement of tvnsent or election 16 obligations on those outside their borders. in the territory to be annexed to this day, MidC'oior F'utaina Aides Brea v. Caw of except. in two Epeeist circumstances_ See P rtiaaa* 310 Or_ 1.62, 1.61, 795 P.241 641 ORS 222.111(5)(indicating exceptions to eleo- 17 (1990). And cities do not have inherent, lion requirement). The legislature has dis- home-rule authority to extend their borders pensed with the consent or election require- to annex unwilling property owners and meets For island annexation and fir territory make them subject to municipal posing a health hazard ORS 222.750(origi- _job]igatians. Landeas v_ City of Cottage na!!'eruaeled as Or. Laws 1919, ch_ G, § L); 19 Grove, GI Or. 155, 156-57, 129 P.527(1912), ORS 999.S4D-222.131.5(prigiicaay enacted as abrogated on other grounds 4 Mici-Cannixj, Or. Laws 1967,ch_ 621)_ For health hazard 20 2L0 Or. at 166, 795 P2d 541; Thurber v. annexation, the legislature expressly permits McMinn:v.lfsr 03 Or_ 410, 41.4-1G, 1.2B F_ 43 cities to annex only part of a territory other- (1912), abrogated on other irrounds by Sate wise subject to forcible annexation,provided 21 sr rgi Minn*'. Milwasdois, 221 Or. 473,372 that cities follow andmeet specified pr4ee- F2d G90 01.002J; Stale ex -re-2 v. Port if dures and standards. ORS 9.22.SS0,r The 22 5_ ORS 222.E-14(3)pi- ds,in part: tiara and heaving,reduce the boundaries of the "IF the director(Director of I3uman Services) affected territory to the part of the territory deterrnimea that a danger to the public exists that proents a danger if the area to be exclud- 23 because of conditions within only part of the ed would not be surrounded by the affected affected territory,the director may.upon peti- territory remaining to be annexed and would 24 25 Attachment 1 26 Pale 5 of 8 Page 19 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 COFCCO WHOLESALE CORP. v. CITY OF BEAVERTON Or. 931 CI .:L61 Pad 926{or_2107} 3 legislature has not expressly granted cities erally requires majority approval of the af- similar power to engage in partial island fected landowners_ A city that seeks to an- ennexation 4 rex property that it class not surround, no 4 We conclude from our examination of the matter how great the need or how good the text of ORS _750r the statutory scheme in reason, must obtain that approval_ Even if 5 which it is embedded, anclr relatedly, its his- the authority to engage in island annexation torical roots,that the legislature has granted does not permit partial island annexation, cities the right to annex property beyond its that authority gives cities significant power 6 borders in only particular, limited cireum- to annex without obtaining the consent of the stances. Because ORS 2 2.50 does not ex- affected landowners_ Cities that wish to an- 7 plicitly authorize annexation of part of an nee only a part of an island are not prohibit- island that is not itself surroundedr complete- ed from doing so. Instead, they are supply ly and contiguouslyr by -city boundaries_ we required to meet the standard neae xary for 8 hold that that statute does not authorize nonisland annexation_ If Oregon cities main- annexation of the Wells property_ twin that they should have greater authority 9 As a slight variation an the argument that., to act outside their boundaries without the once an island is contiguously and completely approval of the affected property owl surrounded, a city may annex all or part of they can and should appeal to the legislature 10 that island, the city and armaicres League of for that express authority_ Oregon Cities argue that,even if cities even- The decision of the Court of Appeals is 11 tually must annex an island in its entiretyr no affirmed_ The order of the Land Use Board statute prohibits them from proceeding to of Appeals is reversed, and the case is re- that end in incremental steps. The ans1 ur mended to the Land Ilse Board of Appeals 12 to that argument is the same as the answer for further proceedings. to the partial annexation argument: While no 13 statute expressly prohibits partial or lucre f,LLLETTErJ�dissenting_ mental island annexation, the legislature's use of the term"such territory"requires that The work of cities in the environment cre- 14 the territory that forms the island be the ated by Ballot Measures 5 (1990) and 50 territory that is annexed_' (1997) is difficult enough, without this court 15 I91 making it worse. In this case,unfortunately, 4�taicara also expresses its concern that is what the majority does,by misreading that a decision affirming the Court of r1p a statute vital to the operation of cities in the peals wall undermine the annexation authori- 16ty of home rule Mies. We note first that it present day_ is legislative, and not home rule, authority That statute is ORS 22a750_ I repeat the 17 that a city exercises when it arta extraterri- pertinent parts of it here to facilitate the torially. See Mid-Comwatj,310 Or.at 161-€4, discuauon_ 7k! P3d Ml (explaining difference) In "When territory -tot within a city is 18 granting that authority, the legislature gen- mi vie eded b r the corpo?uts&,emtderies of not be directly served by the sanitary.water or Estacada, 194 Or. 145, Idfi, 24] P.2d 1129 19 other facilities net]=ir-nry to remove or alleviate (]B57J(proposed annexation void as in any part the danger to public health existing within the is void as to whole). affected territory remaining to be annexed" 20 E_ The other manic, in which rides car a0000F 7_ The annexation ordinance at isme here does plish annexation is by majority consent or vote in not reflect on intent to engage in incremental the area to be annexed_ When cities use those annexation_ Moreover, after the city adopted 21 pnacrssee. they describe the area in be annexed that ordinance.the legislature pared an act that, and determine whether a majority in the area according to the parties,effectively prohibits an- described consent or vote in Favor. It is maid- nexatinn of the Hike properties without the own- 22 paced that the city will annex the described terri- er s consent For up In 35 years. See Or_ Laws Cory as a whole_ Sae ORS 222_I25-222_L73(set- 2005,ch. 644,§§5, L L {certain defined Proper- Ong procedure for consent or election including ties can be annexed only by consent; provision 23 setting final boundaries of territory to be en- will Lapse as lair as 2040 depending on further Hexed); sec dn.P.ortdmed Gen.Elac_Co.w_City of legislative amendments). 24 25 Attachment 1 26 Page 6 of 8 Page 20 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 932 Or_ 161 PACIFIC REPORTER, 3d SERIES 3 the city. • • it ale within the power and at fl29_ The majority begins by assuming aathorz of that city to inner such terri- that an island territory moat be completely 4 tor} • " * Unless otherwise required by surrounded by and completely contiguous to rta charter, annexation by aJ city under a city's boundary_ It then paints to the city's this section shall be by ordinance or reap- definition of an island territory as one that is 5 lution subject to referendum,with or with- Jampletely surrounded by but not neces- out the consent of any owner of property sariiy completely contiguous to a ety's within the territory or resident in the ter- boundaries. The majority then offers a sin- 6 ntory." gle sentence that purports to explain why the (Emphasis added_) Respecting that statute, latter meaning is impossible: 'If'surrounded 7 the majority quite rightly states, 'The issue by' means adjacent in moat directions,'then presented is whether a city has authority to ORS 222'751) would impose no requirement 8 engage in island annexation pursuant to URS that city boundaries completely and contigu- 222.750 if city boundaries do not completely ously encircle the territory to create an in- and contiguously encircle the property to be ]and in the First.instance." 21a Or.at 25, 16h 9 annexed" 243 Or. at 22., 161 F.3d at 92t_ P2d at 929. The majority then answers the question in For some reason,the majority fails to ree- 10 the affirmative_ ognize the circularity in the foregoing discus- Let us at this point be clear about the sion. The majority begins by positing the majority's requirement of complete contigu- correctness or the very definition that it 11 ity. When an "island" consists of two or seeks to uphold It ie no wonder that it can more parcels in separate ownership, a city conclude that that narrow definition is the 12 ordinarily will be completely contiguous uous to correct one_ But the fact is that nothing in the parcels correctively, but not with any the wording of the statute requires complete single parcel in its entirety_ The comae- contiguity. Moreover,the city's broader def- 13 quence of reading a ucomplete contiguity" inition of the term "surround" would cover requirement into ORS 221E_754 is that, if a bath kinds of islands that the majority opin- 14 city decides for any reason that it does not ion illustrates_ wish to annex each and every parcel within The majority itself appears to recognize an island all at once, the oty lacks the au- that its point respecting the warding of the 15 thority to annex ang of the parcels_ statute cannot be dispositive, because it For the life of me, I cannot understand spends four further pages arguing history, 16 how such a reading of the statute could per- But,if the statutory wording were as diisposi- suade anyone, much leas the majority_ To tive as the majority suggests, why does it begin with, as the majority appears to ac- need further discussion? The truth is that 17 knowledge in its review of various definitions neither the wording of the statute, nor the of the wordy 242 Or. at 21r 161 P.33 at*.t29r speofc wording of any other statutes, an- 18 that the word "surround" is ambiguous, swcers the issue before us_ We are left to Furthermore,even the definition the majori- logic and good sense respecting the scope of ty chooses to use, viz., "ta form a ring authority that the legislature intended to 19 around: extend around or about the edge of: grant to cities under ORS 222.754. For me, constitute a curving or circular boundary for that inquiry need not take long. 20 he adjacent to all around or in moat ds- Even a casual glance at the Oregon Re- rectsoxa," id (emphasis added), does not it- vised Statutes reveals the importance of cit- 21 self require complete contiguity_ Finally,the lea in the scheme of Oregon governance_ majority's efforts at injecting a complete con- Laws relating to their organization and artiv- tiguity requirement into that definition are ities take up six full chapters—ORS chapter 22 weak at best In that regard,. the majority 221 to chapter 227. Cities are the political contends that requiring anything less than bodies that deliver the urban services that complete contiguity would give the term make it possible for citizens to live together: 23 'surround,' as used in ORS 222.750, two They provide public safety services (police different meanings. 3&2 Or_ at 21, 1fi1. P,2d and fire protection), public health services 24 25 Attachment 1 26 Page 7 of 8 Page 21 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACHMENT 1 1 2 W1LzoN v. TR1COUNTY METRO. .TR. SP. DIST. Ur_ 933 Cite as 1.6] PJad 4133(Or_21:1071 3 (water and sewer services), recreation and permit a city to matte exactly the kind of leisure opportunities (parks, trails, and nil- commonsense governmental der on that my tore reserves), and organizational control hypothetical describes. I don't believe that, 4 over the infrastructure within their bound- and I cannot understand why the majority, aries (traffic controls, parking restrictions, given a dhaice of answers,rhoostes to_t rJ goring and other land use restrictions). To The point in all this is that the exercise of support those services (and a thousand ath- the authority to annex is a rlsssirshlly politics] era, many peculiar to a particular city or choice,oifkuenced by any number of consid- erations_ And it is precisely that sort of Those taxes are levied on property within the authority that the legislature was addressing 7 boundaries of the city_ Often, there will be when it enacted ORS 2t2.r3O to assist cities islands"within the city that have not come in doing their work_ The question then within the city far any number of reasons_ should Qatar to us. In that contort,and even allowin8 Some of the reasons may be political: For example, a city may make it a policy not to tar the fart that the pivotal word is annex parcels where the resistance is very undefined, why should we adopt a definition 9 strong, partly on the theory that persons so that hamstrings cities in doing what they are forced into a city usually contribute nothing supposed to doh Put that way,the answer is 10 positive to the life of that city. Same of the obvious_ reasons may be practical A city may find I respectfully dissent. 11 something about the property in question that makes the property undesirable,such as DE MUNIZ, C.J.,joins in this dissenting a surface water runoff problem that would opinion_ 12 cost the city more to remedy than the city ever would rye in offsetting tax revenuer 13 Or the city simplywr may determine that it o TnThur .s s tw lacks the ability to supply urban services to r an island parcel at a particular time, so it 14 chooses not to exercise its authority for the time being_ 15 As one can Eee, each of the foregoing, 343 Or. L completely legitimate considerations need oat Jefferson W IL.SON, Petitioner on Review, apply to a complete"island." It may be true, 16 to take just one example, that one half of an v. island consists of rugged terrain with signifi- TRL4OU1u'Y METROPOLITAN TRANS- 17 rant surface water runoff problems,while the PORTAT]ON DISTRICT OF ORE CON. other half of the'Wand"consists of an area a municipal corporation. Respondent on ideal far home sites, all the more so because 18 the city's population has. been expanding in that direction and the city recently has con- (1: 1-N I .. CA Ail s23; SC S52111). 19 atructed large improvements, in the water Supreme Court.of Oregon_ and sewer system serving the area_ Annex- ation of the Latter half would be helpful to the Argued and Submitted March 91,22O06. 20 city through added revenues to at.least par- Decided June 7,2O 7_ tially offset the new urban services now available to that parcel; annexation of the Background: Sus passenger brought a- 21 other part of the island would be detrimental tian against transportation district for in- to the city_ Yet, today, the majority an- juries sustained when bus driver took eva- 22 rwunces that the.?..evistat241.16 intended not to sive action to avoid colliding with another I_ An etirn more charming example world invoke ed any such island to be permanent,as long as o 23 an island consisting in part of property of the private owner within it desired to keep it that United States, which the city cau1d no: annex. According to the majority.the legislature intend- 24 25 Attachment I 26 Page 8 of 8 Page 22 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 Chapter 0654 Page 1 of 2 1 ATTACH ME NT 2 2 Chapter 654 Oregon Laws 2007 3 AN ACT 4 HB 2760 5 Relating to annexation:creating new provisions;amending ORS 222.750; and declaring an emergency. 6 Be It Enacted by the People of the State of Oregon: 7 SECTION 1. ORS 222.750 is amended to read: 8 222.750.(1)As used In this section: (a) "Creek"means a natural course of water that is smaller than,and often tributary to, a river, hut is not shallow or intermittent. 9 (b)"River"means a large,continuous and natural stream of water that is fed along its course by converging tributaries and empties into an ocean,lake or other body of water. 10 (2) When territory not.within a city 15 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 booty of 11 water, it is within the power and anthortry of that arty to annex,such territory- However,]a river,a creek,a bay,a lake or Interstate Highway 5,the city may annex the territory pursuant to this 12 section after holding at least one public hearing on the subject for which notice has been mailed to each record owner of real property in the territory proposed to be annexed. 13 (3)This section does not apply when the territory not within a city: (a) Is surrounded entirely by water; or 14 (b) Is surrounded as provided in subsection (2)of this section,but a portion of the corporate boundaries of the city that consists only of a public right of way,other than Interstate 15 Highway 5,constitutes more than 25 percent of the perimeter of the territory, (4) Unless otherwise required by its charter,annexation by a city tinder this section[shaft] must 16 be by ordinance or resolution subject to referendum, with or without the consent of any owner of real property within the territory or resident in the territory- 17 (5) For property that is zoned for, and in,residential use when annexation is initiated by the city under this section,the city shall specify an ef'fcetle date for the annexation that is at least three years and not more than 10 years after the date the city proclaims the annexation 18 approved, The city recorder or other officer performing the duties of the city recorder shall: (a)Cause notice of the delayed annexation to be recorded by the county clerk of the 19 county in which any part of the territory subject to delayed annexation is located within 60 days after the city proclaims the annexation approved; and 20 (b)Notify the county clerk of each county in which any part of the territory subject to delayed annexation is located not sooner than 120 days and not later than 90 days before the 21 annexation takes effect. (6)Notwithstanding subsection (5)of this section, property that is subject to delayed 22 annexation becomes part of the city immediately upon transfer of ownership. (7)This section does not limit provisions of a city, charter,ordinance or resolution that are 23 more restrictive than the provisions of this section for creating or annexing territory that is surrounded as described in subsection (2)of this section. 24 25 Attachment 2 26 Page 1 of 2 Page 23 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019 ATTACH ME NT 2 1 SECTIQN 2. (1)The amendments to ORS 222.750 by section 1 of this 2007 Act apply to 2 an ordinance or resolution adopted on or after the effective date of this 207 Act that declares an annexation approved. 3 (2)ORS 222.750(7) applies to a provision of charter,ordinance or resolution enacted before,on or after the effective date of this 2007 Act. 4 SECTION 3. This 2007 Act being necessary for the immediate preservation of the public 5 peace,health and safety,an emergency is declared INN exist,and this 2007 Act takes effect on Its passage. 6 Approved by the Governor June 27,2007 7 Filed in the office of Secretary of State June 27,2007 8 Effective date June 27, 2007 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Attachment 2 26 Page 2 of 2 Page 24 of 24— FINDINGS AND CONCLUSIONS I ORDINANCE 2812 I AN 18-0019