Renken v. City of Oregon City

(1) Under OCMC 14.04.060, the city is not limited to considering existing infrastructure at the time of annexation but may also consider future availability of infrastructure improvements to support the development of annexed territory, and (2) the OCMC does not require the city to identify exactly how infrastructure will be paid for as part of annexation decisions.

Petitioners appeal a city decision approving the annexation and rezoning of 92 acres for urban development pursuant to the Park Place Concept Plan (Concept Plan). The Concept Plan was adopted by the city in 2007 after the subject property was included in Metro’s urban growth boundary. To implement the Concept Plan, the city amended its comprehensive plan map to designate the subject property for various residential and commercial uses. In 2018, intervenor applied to the city to annex and rezone its property to implement the comprehensive plan designations. The city approved the proposal and this appeal followed.

Oregon City Municipal Code (OCMC) 14.04.060 lists a number of “factors” to be considered in approving annexations, including the adequacy and availability of public facilities to service potential development. In approving intervenor’s application, the city found that various improvements to the city’s water system would be required to serve the subject property and that, while those improvements were not included in the city’s capital improvement program (CIP), intervenor would seek a CIP amendment before development to include those costs. In their first assignment of error, petitioners argue the city’s findings erroneously focus on whether the city’s water system will have the future ability to serve development, rather than whether the system is adequate at the time of annexation. In addition, because the city neither required intervenor to pay for the improvements directly nor imposed a condition of approval requiring the CIP amendment, the city cannot make a positive finding on this factor. Respondents argue the city adopted findings that intervenor would be wholly responsible for the cost of the improvements, potentially through some combination of system development charges and local improvement districts. LUBA agrees with respondents that nothing in the OCMC limits the city’s consideration to the existing infrastructure at the time of annexation or requires that the city identify exactly how infrastructure will be paid for as part of annexation decisions. The first assignment of error is therefore denied.

In their second assignment of error, petitioners argue that the proposed rezoning is inconsistent with one of the city’s comprehensive plan goals regarding transit-oriented development. Respondents argue this issue was not raised below and it is therefore waived under ORS 197.763(1). In response, petitioners argue they can raise this issue for the first time on appeal pursuant to ORS 197.835(4)(a), which allows petitioners to raise new issues to LUBA if a local government omits applicable criteria from its notice of hearing. Because the proposed rezoning does not authorize and intervenor’s application does not involve transit-oriented development, LUBA agrees with respondents that the goal does not apply to intervenor’s application. The city was therefore not required to list the goal its notice of hearing and petitioners cannot raise this issue for the first time to LUBA. Thus, the second assignment of error is denied and the city’s decision is AFFIRMED.