HOUSE COMMITTEE ON LAND USE

 

 

May 11, 2005 Hearing Room 50

1:30 P.M. Tapes  91 - 94

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Mitch Greenlick, Vice-Chair

Rep. Robert Ackerman

Rep. Mary Nolan

Rep. Patti Smith

Rep. Mac Sumner

 

STAFF PRESENT:                  Sam Litke, Committee Administrator

Lindsay Luckey, Committee Assistant

 

 

MEASURES/ISSUES HEARD:

HB 3474 – Public Hearing

                                                SB 887A – Public Hearing

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 91, A

 

Chair Garrard

Calls the meeting to order at 1:40 p.m. and opens a public hearing on HB 3474.

HB 3474 – PUBLIC HEARING

 

Rep. Mac Sumner

HD 18.  As sponsor of HB 3474, introduces and speaks in support of HB 3474.

025

Dave Hunnicutt

Oregonians in Action.  Submits a packet of information (EXHIBIT A) and explains that HB 3474 will allow for permitting of churches and notes exceptions found in Section 2 (3).  Reviews the establishment clause.  Details a Massachusetts case which corresponds to Oregon case.

127

Hunnicutt

References law literature dealing with the use of zoning to discriminate against religious organizations.  Discusses Department of Land Conservation and Development (DLCD) rules relating to zoning of churches.  Asserts there is discrimination against churches and stresses HB 3474 will apply to all religions. 

185

Rep. Greenlick

Asks if there have been any constitutional challenges to the current status of prohibiting building in exclusive farm use zones (EFU).

 

Hunnicutt

Responds that he is unaware of a challenge in Oregon.  Adds that they raised the issue in a previous Molalla christian church Land Use Board of Appeals (LUBA) case and discusses the lack of evidence. 

207

Rep. Greenlick

Asks about the constitutionality of the land use laws discussed, and relays that in other states, land use laws have not been found to be in violation of free expression.

 

Hunnicutt

Responds he cannot give an answer for all 50 states.  Discusses the establishment clause challenged by municipalities and references the Massachusetts statute which was used as a template for HB 3474.

234

Rep. Greenlick

References Section 2 (2), and asks hypothetically if under this clause a large non-profit educational facility could move into farmland.

 

Hunnicutt

Responds that under this measure it could.

252

Rep. Ackerman

Asks why they incorporated educational uses with religious uses in HB 3474.

 

Hunnicutt

Responds that they were trying to match Massachusetts law as closely as possible to avoid litigation.  Adds they would be open to amendments that would clarify religious educational facilities.

281

Rep. Ackerman

Asks if there is a reasonable statewide need to provide for preferential siting of religious organizations.

 

Hunnicutt

References prior cases around the state.

 

Rep. Ackerman

Notes the bill is based upon ownership and asks what would stop entities from abusing this provision.

 

Hunnicutt

Responds that they should look to the Massachusetts record with the statute and is unaware of any cases of abuse.

340

Steven K. Green

Professor of Law, Willamette University.  Submits and summarizes written testimony in opposition to HB 3474 (EXHIBIT B).

TAPE 92, A

020

Green

Continues testimony, discussing his third concern outlined on page 2 of his written testimony.

042

Christy Munson

Counsel, League of Oregon Cities.  Speaks in opposition to HB 3474.  Stresses HB 3474 would be a major change in how land is regulated.  Elaborates on her concerns.

082

Lane Shetterly

Director, Department of the Land Conservation and Development (DLCD).  Notes his background in educational siting.  Expresses concerns of the department, describing HB 3474 as a supersiting bill favoring public entities, religious organizations and non-profit educational organizations.  Reiterates Munson’s testimony related to demands on government, including availability of services and infrastructure. 

132

Rep. Greenlick

Asks Munson if HB 3474 would prevent the City of Portland from regulating campuses’ land use actions.

 

Munson

Responds that under certain circumstances they may be exempt from regulations.

145

Rep. Ackerman

Asks if the religious land use and institutionalized persons act has preempted language on state statutes of a similar effect.

 

Green

Responds that he believes they do not preempt state law.

 

Chair Garrard

Asks Shetterly if he would personally support this bill.

 

Shetterly

Responds negatively and elaborates.

170

Rep. Anderson

Asks which zones a church is prohibited from zoning in.

 

Shetterly

Defers to Eber.  Notes that churches can be sited as conditional uses in zones.

 

Munson

Comments that churches can be sited outside of urban growth boundaries (UGB) and are designated “rural churches”.

191

Ron Eber

DLCD.  Reports that regarding rural land, Land Conservation and Development Commission (LCDC) rules preclude churches and schools from zoning within 3 miles of a UGB or on high value farmland.  Adds they are not allowed on forest land at all and that under Goal 14 does not allow urban uses outside of a UGB.

208

Rep. Nolan

Asks if under HB 3474 the exemption from local regulations applies to any property owned by one of the specified entities regardless of use, so asks if currently alternative uses would be allowed in any zone. 

 

Munson

Responds with the two tests in HB 3474 and elaborates.

240

Rep. Sumner

Comments that under current land use rules a specific situation would not be permitted.

 

Shetterly

Gives examples of church sitings.  Describes an example of a broad interpretation under ambiguous language.

290

Rep. Greenlick

Asks if there is a problem siting churches inside UGBs in terms of the types of uses allowed. 

 

Munson

Responds she does not know about the specifics of siting but discusses governmental regulations regarding churches inside the UGB.

325

Shetterly

Discusses the problem of siting a specific church within a UGB due to inadequate land supply.

 

Rep. P. Smith

Asks if the state does land use applications by ownership. 

 

Eber

Responds that that information is part of the process dependant on the type of application.

350

Rep. Sumner

Discusses the problem of siting churches within UGB in rural areas.

 

Shetterly

Reviews the LUBA decision in the Molalla Christian Church case and the possibility to pursue the exception process.

390

Eber

Gives an example of an exception approved for a church outside the city of Amity.

400

Elon Hasson

Lobbyist, 1000 Friends of Oregon.  Speaks in opposition to HB 3474. 

TAPE 91, B

010

Phillip Kennedy – Wong

Ecumenical Ministries of Oregon.  Thanks Rep. Sumner for the intent of the bill but speaks in opposition to HB 3474.  Outlines objections.

054

Randy Tucker

Legislative Affairs Manager, Metro.  References three examples of “rural churches” located outside of the UGB serving urban populations.  Discusses expansion of UGB for industrial purposes. 

084

Rep. Anderson

Asks Kennedy-Wong if a specific example would be allowable.

 

Kennedy - Wong

Verifies he means in respect of HB 3474.

 

Rep. Anderson

Confirms this.

 

Kennedy-Wong

Describes legal challenges in determining what constitutes a “religious body”.

112

Rep. Anderson

Verifies a point in Kennedy-Wong’s testimony about physical buildings and preserving land.

 

Kennedy-Wong

Discusses spiritual and physical aspects of religion.

 

Rep. Anderson

Asks if we have committed sins by building on land.

 

Kennedy-Wong

Respond negatively. 

 

Rep. Anderson

Verifies a point in Kennedy-Wong’s testimony.

 

Kennedy-Wong

Responds that HB 3474 is not a “one-size fits all”. 

 

Chair Garrard

Closes the public hearing on HB 3474 and opens a public hearing on SB 887A.

SB 887A – PUBLIC HEARING

170

Sam Litke

Committee Administrator.  Reviews the legislative history of SB 887A and explains its provisions.  References –A13 amendments (EXHIBIT C), -A10 amendments (EXHIBIT K) and –A11 (EXHIBIT L).

 

Rep. Greenlick

Asks about other amendments.

 

Litke

Reports the committee has not received other amendments.

 

Chair Garrard

Recesses the meeting at 2:55 pm and reopens at 3:00 pm.

242

Sen. Ryan Deckert

SD 14.  Outlines the effect of the -A13 amendments (EXHIBIT C) and submits a written explanation of the amendments (EXHIBIT D).

 

Rep. Greenlick

Expresses concern if the mediation group detailed in the –A13 amendments could not reach a consensus and the lack of consequence.

 

Sen. Deckert

Agrees that the mediations are not binding but relays the possibility of the neutral third party helping to adjudicate the issue.

 

Chair Garrard

Announces the origin of the –A13 amendments (EXHIBIT C), the –A6 amendments (EXHIBIT I), -A8 amendments (EXHIBIT E), -A9 amendments (EXHIBIT F), -A10 amendments (EXHIBIT K),–A11 amendments (EXHIBIT L) and the –A12 amendments (EXHIBIT M).

356

Rep. Brad Avakian

HD 34.  Explains the effect and intent of the -A8 amendments (EXHIBIT E) and -A9 amendments (EXHIBIT F)

TAPE 92, B

006

Rep. Ackerman

Asks if the mediation has the effect of staying the annexation election.

 

Rep. Avakian

Responds negatively.

 

Rep. Ackerman

Comments that a continuing election and a mediation process seem to be cross purposes. 

 

Rep. Avakian

Agrees and suggests support of other annexation bills before the committee in conjunction with SB 887.

015

Rep. Sal Esquivel

HD 6.  Submits map of (EXHIBIT G).  Describes misuse of forced annexations and asserts most municipalities function well.  Explains the procedure for dealing with enclaves in the city of Medford.  Describes problems in allowing enclaves but asks for awareness in maintaining the tool of municipalities to annex enclaves.

110

Chair Garrard

References letter in support of SB 887 from Micheal J. Konich of Leupold and Stevens, Inc (EXHIBIT H).

126

Julia Brim-Edwards

Deputy Director for State and Public Affairs, Nike.  Submits –A6 amendments (EXHIBIT I) and explains their effect.  Elaborates on reasons for the extension of the sunset. 

 

Rep. Greenlick

Asks if this extension would relate to Columbia Sportswear as well.

 

Brim-Edwards

Responds affirmatively.

 

Rep. Greenlick

Asks if ESI is included in this amendment.

 

Brim-Edwards

Responds she believes they have another amendment.

155

Gary Conkling

Tektranix.  Submits the -A10 amendments (EXHIBIT K), -A11 amendments (EXHIBIT L) and written testimony (EXHIBIT J).  Urges support of -A10 and -A11 amendments.

220

Rep. Greenlick

Submits and explains the -A12 amendments (EXHIBIT M).  Describes need for consequences with interim work groups.  Notes intention to propose more amendments which would a delay an implementation of this until January 2008 and repeal ORS 222.750. 

300

Linda Ludwig

League of Oregon Cities.  Submits and summarizes written testimony urging the passage of SB 887 A-engrossed without changes (EXHIBIT N).  Discusses possible consequences of island annexations and changing definitions.  Reiterates her prior recommendation for a interim work group. 

TAPE 93, A

002

Ludwig

Reports she cannot support the -A12 amendments, and asks that the committee not pass HB 3084.

 

Chair Garrard

Asks if there are any representatives from the City of Beaverton present.

 

Ludwig

Responds that there are not.

018

Chair Garrard

Asks about Beaverton and the issue of annexation.

035

Ludwig

Mentions that SB 887 has a provision that directly impacts Beaverton and not other cities and the League of Oregon Cities’s support of SB 887.

055

Steve Bryant

City of Albany.  Submits a map of Albany showing recent annexations (EXHIBIT O).  Expresses concern for a statewide solution to a limited problem.

 

Chair Garrard

Notes the dilemma before the committee.

 

Rep. Greenlick

Relays the possibility of other cities interpreting the laws in the same way that Beaverton has.

093

Bryant

Continues testimony.  Discusses annexation as a necessary tool for cities.  Discusses benefits available to unincorporated citizens without paying.  Relays that the most important point is the efficient provision of urban services.  References island annexations done in the past year and points them out on the map of Albany (EXHIBIT O)

 

Chair Garrard

Asks for clarification on which voters he is referring to.

 

Bryant

Responds the voters of the city and notes that members of the proposed territory may make comments at the meeting.

 

Chair Garrard

Verifies that those in the proposed territory may not vote.

 

Bryant

Confirms this.  Discusses other options for annexing.  Notes that the proportion of voters in the territory are usually small and would not effect the vote.

171

Chair Garrard

Verifies he means their proportion compared with the city vote.

 

Bryant

Confirms this.  Refers to the map. 

 

Rep. Greenlick

Asks if the portion referenced was annexed under ORS 222.750.

 

Bryant

Confirms this.

 

Rep. Greenlick

Verifies this was done because of the bordering river.

 

Bryant

Responds affirmatively and continues describing the annexation.  Asks that the committee not take a “one size fits all” approach.

231

Rep. Greenlick

Asks how the city would have been able to annex a certain part of land if the river were not located where it is.

 

Bryant

Responds that they would not have been able to and remarks that the urban growth boundary (UGB) is located where it is because of the river. 

 

Rep. Greenlick

Asks why the city gave the owners of particular enclave city services.

 

Bryant

Responds that the water systems existed before the city owned the water and discusses the services provided. 

300

Jerry Ritter

Oregon Communities for a Voice in Annexations.  Submits and summarizes written testimony in support of SB 887A (EXHIBIT P).

386

Ritter

Responds to previous testimony.

TAPE 94, A

003

Harvey Matthews

Association of Oregon Industries.  Speaks in opposition to SB 887A and relays supports Rep. Greenlick’s -A12 amendments. 

036

Dana Krawczuk

Attorney, Ball Janik.  Submits and summarizes written testimony suggesting amendments to SB 887A (EXHIBIT Q).

079

Rep. Ackerman

Verifies with Rep. Greenlick that the -A12 amendments take out Section 3 of A-Engrossed SB 887.

 

Rep. Greenlick

Discusses other sections it would effect.

 

Rep. Ackerman

Notes the -A12 amendments take out lines 4-19.

 

Rep. Greenlick

Adds it will also delete pages 2, 3, and 4 of the original bill.

 

Rep. Ackerman

Asks if Rep. Greenlick intended to delete Section 3 which deals with the single majority requirement for ORS 195 types of annexation.

 

Rep. Greenlick

Responds that that was not the intent.

 

Chair Garrard

Verifies that the discussion is focused around whether or not any amendments address annexation that occurred before March 1, 2005.

 

Rep. Greenlick

Responds that the discussion is not focused on that point and clarifies that they are trying to determine if they took out the ORS 195 piece of the bill on page 1, line 8-9.

 

Rep. Ackerman

Notes further changes needed for the amendments.

100

Rep. Greenlick

Agrees.  Asks Krawczuk whether the appeal stopped the annexation.

 

Krawczuk

Responds that it will depend on the result of the appeal and explains.

 

Rep. Greenlick

Asks about the current status of the annexation.

 

Krawczuk,

Responds that for the property owners who have appealed to LUBA, the annexations are in abeyance.

121

Sean O’Day

Assistant City Attorney, City of Salem.  Remarks that any revision to ORS 222 must be deliberative and comprehensive.  Highlights island annexations and discusses cities’ use of this process.

195

Rep. Ackerman

Asks if O’Day is familiar with any unincorporated municipalities which receive the majority of their services not from adjoining cities but from regional systems and special service districts.

 

O’Day

Responds that services provided by special service districts are more along utility types of services.

 

Rep. Ackerman

Poses a hypothetical situation with an unincorporated area that was receiving 75% of its services from regional providers and special service districts and asks if that argues more in favor for a vote of the people in the unincorporated areas to associate with the city.

 

O’Day

Responds and discusses the public process involved in annexations.

227

Rep. Ackerman

Restates his question, asking if the unincorporated areas receiving 75% of its municipal services from special service districts and regional systems, aside from the city, would argue in favor of having the people vote before they are annexed into a city.

 

O’Day

Responds that it would be a compelling argument, but is not the case in Oregon.

 

Rep. Ackerman

Responds that it is where he resides.

 

O’Day

Responds that it is not in Salem.

240

Glenn Gross

City of Salem.  Reports on the testimony from the City Council in previous hearings.  Discusses voluntary annexations. 

 

Rep. Greenlick

Asks if the specific annexation would be under ORS 222.050.

 

O’Day

Discusses the statutory process.

 

Rep. Greenlick

Remarks that no one is objecting to voluntary annexations. 

 

O’Day

Explains that they do not want to loose the annexing tool for the future.  Encourages the committee not to hinder cities’ ability to annex.

287

Rep. Anderson

Asks if there is a way to make things more balanced with the existing process related to islands.

 

O’Day

Responds it is a good question and that should be directed at the task force.

300

Rep. Greenlick

Comments on cities’ position.

 

O’Day

Point out the public process involved.

 

Gross

Adds that in the future an involuntary annexation may be appropriate.

336

Doug Riggs

Central Oregon Cities Organization.  Submits and summarizes written testimony raising issues on annexation and SB 887A (EXHIBIT R).

TAPE 93, B

002

Riggs

Relays personal experience with those outside of UGBs.

014

Chair Garrard

Remarks that County Commissioners do not have the power to stop city annexations and comments on misleading wording in Riggs written testimony.

 

Riggs

Clarifies his point. 

050

Jon Chandler

Oregon Homebuilders Association.  Makes suggestions to the committee and issues support for SB 887A. 

 

Chair Garrard

Makes announcements on future actions.

 

Chair Garrard

Closes the public hearing on SB 887 and adjourns the meeting at 4:36 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 3474, packet of material, Dave Hunnicutt, 14 pp
  2. HB 3474, written testimony, Steven K. Green, 2 pp
  3. SB 887, -13 amendments, Sen. Deckert, 2 pp
  4. SB 887, summary of amendments, Sen. Deckert, 1 p
  5. SB 887, -8 amendments, Rep. Avakian, 1 p
  6. SB 887, -9 amendments, Rep. Avakian, 2 pp
  7. SB 887, map of Medford, Rep. Esquivel, 1 p
  8. SB 887, written testimony, Leupold and Stevens, 2 pp
  9. SB 887, -6 amendments, Julia Brim Edwards, 1 p
  10. SB 887, written testimony, Gary Conkling, 2 pp
  11. SB 887, -10 amendments, Gary Conkling, 1 p
  12. SB 887, -11 amendments, Gary Conkling, 1 p
  13. SB 887, -12 amendments, Rep. Greenlick, 8 pp
  14. SB 887, written testimony, Linda Ludwig, 2 pp
  15. SB 887, map of Albany, Steve Bryant, 1 p
  16. SB 887, written testimony, Jerry Ritter, 2 pp
  17. SB 887, written testimony, Dana L. Krawczuk, 2 pp
  18. SB 887, written testimony, Doug Riggs, 2 pp
  19. SB 887, fiscal statement, Staff, 2 pp