A whack at democracy in land use

Suburban and rural Troutdale, Oregon. Photo: author

Here's a problem that could use fixing, but is prompting legislative overreach. Apparently there are some places inside the Portland region's urban growth boundary that developers are having a hard time developing. These are usually unincorporated areas adjacent to, but outside, city limits. When a developer asks a local city to annex his/her land, it must go to a public vote. To succeed, the annexation must receive a "yes" vote from a double majority - a majority of residents in the affected unincorporated area, and a majority of residents in the city doing the annexing. Even after this hurdle, the developer must figure out how to extend (and pay for) infrastructure like roads, water, sewer and electricity, while also paying numerous system development charges (SDCs) for services like emergency services, schools and recreation. It's a tough, expensive process, and sometimes developers ask cities for financial help in extending infrastructure or reducing fees.


Not surprisingly, many developers' efforts hit roadblocks under this system. The double majority rule often results in failed annexation votes, thanks to unincorporated residents who would rather keep their rural setting, lower taxes, and lack of public services. But even after successful annexations, calls for help in paving roads and burying sewer lines usually fall on the deaf ears of cash-strapped local governments. That brings us to the present, when a handful of developers are upset about their inability to develop land that is within the urban growth boundary and close to existing development and services. Again, a problem that could use fixing.

But a solution proposed this week by the Oregon House is yet another example of the land use pendulum swinging too far in one direction (past examples include Measure 37). Yesterday, the House approved House Bill 4090, which according to The Oregonian, "strips cities and voters of their power to regulate growth and forces them to provide sewer and water service to unincorporated areas." Upon closer inspection of the actual bill, it appears that developers would still have to pay for the extension of services, and continue to pay SDCs. This is good, but I'm concerned about the following wording from section 2-3 of the bill:

A service provider may [emphasis mine] charge to the owner all costs incurred to connect the lawfully established unit of land to the service facilities and to deliver the sanitary sewer or water services pursuant to this section.

In the world of legal language, "may" is non-binding, as opposed to "shall," which is binding. In this case, the more permissive "may" means that a sewer authority, for example, could ask taxpayers to pick up the tab for extending sewer lines, instead of charging the developer. That's my understanding, anyway.

I'm also leery of the other main provision of House Bill 4090. Amended section 4a-6 states:

...the governing body of a district may declare the annexation approved by resolution or ordinance without submitting the annexation plan to the electors of the district or to the electors of the territory proposed to be annexed.

Here's the thing: I have no problem with scaling back the double majority rule where rural residents squash nearly every attempt to annex. But I do have a problem with allowing special districts (water or sewer authorities) to supersede the powers of city councils. Local citizens elect city councilors to make smart decisions about the future of their communities. Yes, most special district leaders are also elected, but their relationship with the public pales in comparison.

Instead of this bill, the House could have simply eliminated the double majority rule, making annexations and development within urban growth boundaries much easier. That apparently didn't go far enough, so now we're looking at taking away local control of land use, and potentially putting the public on the hook for paying for suburban development. Oddly, this also puts property rights groups like Oregonians in Action in favor of reducing the power of voters and local elected officials. Interesting. We'll have to see what the Senate and Governor think of this.