McGowan v. Lane County Local Government Boundary Commission

795 P.2d 560, 102 Or. App. 381, 1990 Ore. App. LEXIS 687
CourtCourt of Appeals of Oregon
DecidedJuly 18, 1990
Docket191-00; CA A60365
StatusPublished
Cited by7 cases

This text of 795 P.2d 560 (McGowan v. Lane County Local Government Boundary Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGowan v. Lane County Local Government Boundary Commission, 795 P.2d 560, 102 Or. App. 381, 1990 Ore. App. LEXIS 687 (Or. Ct. App. 1990).

Opinion

JOSEPH, C. J.

Petitioners seek review of respondent boundary commission’s approval of the annexation of intervenor’s 29-acre tract to the city of Eugene through the “expedited” procedures of ORS 199.466.1 The statute specifically makes the public hearing and related procedural requirements of ORS 199.461 to ORS 199.463 inapplicable. No notice is required by ORS 199.466. The statute does require that the “brief analysis” and recommendation of the commission’s executive officer be sent to certain governmental agencies and officers, to the owners of the territory proposed for annexation and “to such other persons as may be required by the commission.” Unless one of the recipients of the analysis and recommendation requests that the hearing, notice and other procedures of ORS 199.461 to ORS 199.463 be invoked, the annexation is deemed approved [384]*384by the commission 25 days after the filing of the annexation petition.

Petitioners own property adjacent to the annexed area, and they maintain that the annexation can adversely affect their interests. They were not notified of the annexation proceedings. They contend that they were entitled to notice and that the commission’s failure to provide notice, and an opportunity to request and participate in the plenary procedures of ORS 199.461 to ORS 199.463, requires that we reverse the approval of the annexation. Petitioners’ arguments are diffuse, but their thrust is that some combination of (1) the statutory scheme itself, (2) Oregon cases relating to quasi-judicial procedures and (3) due process require that owners of land adjacent to an area proposed for annexation be given notice and “an opportunity to request and appear at a public hearing.”

At the outset, we note that petitioners do not contend that ORS 199.466 is unconstitutional or in conflict with other statutory provisions. Their position is that the statute can be applied in a way that allows the procedures that they think should be followed: If the commission had named them as “other persons” to whom it may require a copy of the analysis and recommendation to be sent, they could have initiated the procedures. The threshold problem, and one that petitioners never surmount, is that ORS 199.466 expressly obviates the procedural requirements of ORS 199.461 to ORS 199.463, including notice requirements. Petitioners’ ultimate point is that ORS 199.466 must be applied in such a way that the procedures of other statutes, which it expressly makes inapplicable, will in fact be followed.

Petitioners state:

“If the Boundary Commission had established under the expedited procedures a notification process that included persons who are potentially adversely affected and aggrieved by this or any other annexation, then this appeal would not have been filed. The Boundary Commission could look to almost any zoning or land use process from any town or county in Oregon as a model in adopting a requirement that the filing of any petition, even those filed under the so-called expedited process, must be advertised to the public. At a minimum, adjacent landowners should be notified and given the right to request a public hearing.”

[385]*385It is true, of course, that a boundary commission can implement ORS 199.466 in a way that renders the expedited process that the statute contemplates a virtual dead letter. However, petitioners seem oblivious to the fact that the objective of the statute is the opposite. Moreover, they have not succeeded in demonstrating that that objective and the specific means that the statute establishes for realizing it are not permissible.

Petitioners argue that annexation decisions are inherently quasi-judicial and that, therefore, boundary commission proceedings pertaining to annexations must follow the notice and other procedures delineated in Fasano v. Washington Co., 264 Or 574, 507 P2d 23 (1973), disapproved on unrelated grounds Neuberger v. City of Portland, 288 Or 585, 607 P2d 722 (1980), and later related cases. However, Fasano and its progeny arose out of and were specifically referable to statutory or local legislative criteria that the courts held to be adjudicative in character. In the absence of criteria to which quasi-judicial procedures can or must be applied, the procedures are not required. Petitioners direct us to no such criteria in ORS 199.466 or ORS chapter 199 generally. The closest they come is ORS 199.462(1):

“In order to carry out the purposes described by ORS 199.410 when reviewing a petition for a boundary change or application under ORS 199.464, a boundary commission shall consider local comprehensive planning for the area, economic, demographic and sociological trends and projections pertinent to the proposal, past and prospective physical development of land that would directly or indirectly be affected by the proposed boundary change or application under ORS 199.464 and the goals adopted under ORS 197.225.” (Emphasis supplied.)

Petitioners reason that that provision as a whole, and the emphasized language in particular, establish adjudicative criteria in which they, as persons whose property might be affected, have an interest that calls for quasi-judicial protection and participation. We disagree. ORS 199.462

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90 P.3d 1036 (Court of Appeals of Oregon, 2004)
Bellinger v. Lane County Local Government Boundary Commission
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895 P.2d 797 (Court of Appeals of Oregon, 1995)
McGowan v. City of Eugene
795 P.2d 563 (Court of Appeals of Oregon, 1990)
Donaldson v. Lane County Local Government Boundary Commission
795 P.2d 564 (Court of Appeals of Oregon, 1990)
McGowan v. LANE CTY. L. GOV. BDRY. COM'N
795 P.2d 560 (Court of Appeals of Oregon, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
795 P.2d 560, 102 Or. App. 381, 1990 Ore. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-lane-county-local-government-boundary-commission-orctapp-1990.