DIR1998-00004 ODONNELL RAMIS ET AL 503- 243 -2944 Hug 2( yi 9:01 No.uus t'.u2
■ O'DONNILI,
&AMTS
CREW
CORRIGAN &
BACHRACH,
ATTORNEYS AT LAW
1727 N.W, Hoyt &mat MEMORANDUM
Portland, Oregon 97209
(503) 222-4402
r `
TO: Jim Hendryx, Community Development Director
City of Tigard
FROM: Gary Firestone
DATE: August 26, 1998
RE: City of Tigard /Community Development — Consents to Annexation
BACKGROUND
The City of Tigard currently administers land use laws in some areas outside its boundaries,
ISSUES
Can the City require applicants for land use approvals for territory outside its boundaries to
consent to annexation?
Does the decision in Bear Creek Valley Sanitary Authority v. City of Medford, 130 Or
App 24, 880 P2d 486 (1994), restrict the City's ability to require consents to annexation?
SHORT ANSWER
The City can require applicants for land use approvals for territory outside Its boundaries to
consent to annexation. It has authority to require a consent to annexation as a condition of approval,
and has further authority under ORS 222.115. The decision in Bear Creek Valley applies only to a
policy to require consents in exchange for services provided by other entities, The land use planning
services will be provided by the City, not by somo other third party, so Bear Creek Valley does not
apply.
ODONNELL RAMIS ET AL S03- 243 -2944 Hug 27 9:02 No . U06 F . U.5
Memorandum re: City of Tigard /Community Development — Consents to Annexation
August 26, 1998
Page 2
ANALYSIS
ORS 222.115 provides:
A contract between a city and a landowner relating to extraterritorial provision
of service and consent to eventual annexation of property of the landowner shall be
recorded and, when recorded, shall be binding on all successors with an interest in that
property.
•
This statute does not specify what type of service must be provided, Without any limitation expressly
stated in the statute, the extraterritorial provision of any service is sufficient to satisfy the statute. As
long as a city itself is providing some type of service outside the city limits, it can contract with those
receiving the services to consent to annexation. The provision of land use planning evaluation and
approval services outside the city limits is therefore a sufficient basis for a contract that satisfies ORS
222.115.
In addition to this statutory source of authority, the Oregon Court of Appeals has recognized
that in addition to its authority under ORS 222.115, the City's planning authority also authorizes it to
require a consent to annexation as a condition of approval:
Whether or not the county could make annexation to the city a condition of the
provision of city services, the city itself could do that, as an exercise of its planning
authority and of its authority under the annexation statutes. Indeed, that is precisely
what ORS 222.115 contemplates,
Rear Creek Valley Sanitary Authority v. City of Medford, 130 Or App at 28 (emphasis in original).
When exercising land use planning authority outside the city limits, the city can condition approval on
a consent to annexation.
Bear Creek Valley is not inconsistent with the position that a city can obtain a consent to
annexation in connection with the provision of land use planning services. Bear Creek Valley
involved a city and county policy of requiring consents in exchange for the provision of services
provided by the sewer district. Because the services were not provided by the city, ORS 222.115,
which applies only to contracts related to the provision of city services, did not apply. 130 Or App at
29. This case does not involve the provision of services by a third party, but the provision of land use
planning services by the City, Bear Creek Valley therefore does not preclude the applicability of ORS
222.115 here.
j, ODONNELL RHMIS ET HL 5US 245 - 2944 Hug 2( 46 9:U No.UU. r.u14
‹J
Memorandum re: City of Tigard /Community Development — Consents to Annexation
August 26, 1998
Page 3
No court has considered the issue whether land use planning services are "services" u that
term is used in ORS 222.115, and court decisions arc not always predictable. However, the City will
have a strong argument that ORS 222.115 does apply if it requires consents to annexation in return
for land use planning decisions,
G :broo1TIGARPfhaona n wpd
•
After recording return to:
City of Tigard
13125 SW Hall Blvd.
•
Tigard, OR. 97223
ANNEXATION CONTRACT
(CONSENT TO ANNEXATION AND WAIVER OF REMONSTRANCE)
1. ( "Owner ") is the owner of the real property (the "Property")
located at and more particularly described as:
2. Owner has applied to the City of Tigard for a land use approval (or other approval) for the
Property, which is located outside the City limits of the City of Tigard. The City of Tigard agrees
to process the application (provide water services) for the Property.
3. In exchange for the City's provision of the services described in Section 2, Owner consents to
annexation of the Property to the City of Tigard. Owner understands that this consent to
annexation is irrevocable and may be used by the City at any time.
4. Owner understands that Owner may request information on the City of Tigard's ad valorem tax
and a description of services the City generally provides its residents.
5. Owner waives any right to remonstrate against annexation of the Property to the City of Tigard.
6. This agreement, consent and waiver is binding on Owner and Owner's successors, heirs and
assigns. This agreement shall run with the land and be recorded in the Deed Records of
Washington County. Failure to record this contract may result in the City of Tigard withdrawing
its consent to connect to or use the City's public facilities or the provision of City services.
7. If any provision of this document is held to be invalid or unconstitutional by any court of
competent jurisdiction or preempted by federal or state regulations or law, such provision shall be
deemed separate and independent of the document and such holding or preemption shall not affect
the validity of the remaining provisions.
8. This agreement is not intended as any limit on the City of Tigard's lawful authority under its
adopted regulations to take action on Owner's application by approval, denial, on approval with
conditions, or to take any other lawful action relating to the application.
9. If suit, action, judicial review, arbitration, bankruptcy proceeding or any other type of proceeding
is instituted to enforce or interpret this agreement, the prevailing party shall be entitled to recover,
in addition to costs, such sum as the court may adjudge reasonable as attorney fees and, in the
event of appeal or review, as allowed by the appellate court or body.
Page 1
DATED this day of , 20_.
Owner
Owner
Mailing Address:
Telephone No.:
STATE OF OREGON )
ss.
Washington County )
The foregoing instrument was acknowledged before me on , 20_, by
Notary Public for Oregon
My commission expires:
City Manager, City of Tigard
STATE OF OREGON )
ss.
Washington County )
The foregoing instrument was acknowledged before me on , 20_, by
Notary Public for Oregon
My commission expires:
Page 2
After recording return to:
City of Tigard
13125 SW Hall Blvd.
Tigard, OR. 97223
ANNEXATION CONTRACT
(WAIVER OF TIME PERIOD)
1. - ( "Owner ") is the owner of the real property (the "Property") located
at and more particularly described as:
(LEGAL DESCRIPTION)
2. By written agreement of even date, Owner is entering into a written annexation contract and
consent to annexation with the City of Tigard, a copy of which is attached hereto as Exhibit 1.
3. Pursuant to ORS 223.173(1), Owner hereby waives the one year period for effectiveness of the
annexation contract and consent to annexation, and agrees that the consent to annexation may be
used at any time by the City of Tigard in conjunction with any and all other consents that the City
has received or will receive.
4. This waiver is a material inducement to the City to enter into the Annexation Contract and Consent
to Annexation.
5. This contract shall run with the land and shall be recorded in the Deed Records of Washington
County and all terms and conditions contained herein shall be binding on all heirs, executors,
administrators, assigns, and other successors -in- interest to the above - described property pursuant
to ORS 222.115. Failure to record this contract may result in the City of Tigard withdrawing its
consent to connect to or use the City's public facilities or the provision of City services.
6. If any provision of this document is held to be invalid or unconstitutional by any court of
competent jurisdiction or preempted by federal or state regulations or law, such provision shall be
deemed separate and independent of the document and such holding or preemption shall not affect
the validity of the remaining provisions.
7. This agreement is not intended as any limit on the City of Tigard's lawful authority under its
adopted regulations to take action on Owner's application by approval, denial, on approval with
conditions, or to take any other lawful action relating to the application.
Page 3
DATED this day of , 20_
Owner
Owner
Mailing Address:
Telephone No.:
STATE OF OREGON )
ss.
Washington County )
The foregoing instrument was acknowledged before me on , 20_, by
Notary Public for Oregon
My commission expires:
City Manager, City of Tigard
STATE OF OREGON )
ss.
Washington County )
The foregoing instrument was acknowledged before me on , 20_, by
Notary Public for Oregon
My commission expires:
gff /acm /90024 /annexati onconsent.dr 1(2/2 1 /01)
Page 4
DATE: 8/26/1998
0 r l�
CODE SECTIONS: 18.320
[`TOPIC :I Annexation Contracts
*This is an Interpretation by Gary Firestone of the City Attorney's Office
INTERPRETATION: BACKGROUND
The City of Tigard currently administers land use laws in some areas outside its
boundaries.
ISSUES
Can the City require applicants for and use approvals for territory outside its boundaries to
consent to annexation?
Does the decision in Bear Creek Valley Sanitary Authority v. City of Medford, 130 Or App
24, 880 P2d 486 (1994), restrict the City's ability to require consents to annexation?
SHORT ANSWER
The City can require applicants for land use approvals for territory outside its boundaries to
consent to annexation. It has authority to require a consent to annexation as a condition of
approval, and has further authority under ORS 222.115. The decision in Bear Creek
Valley applies only to a policy to require consents n exchange for services provided by
other entities. The land use planning services will be provided by the City, not by some
other third party, so Bear Creek Valley does not apply.
ORS 222.115 provides:
A contract between a city and a landowner relating to extraterritorial provision of service
and consent to eventual annexation of property of the landowner shall be recorded and,
when recorded, shall be binding on all successors with an interest in that property.
This statute does not specify what type of service must be provided. Without any limitation
expressly stated in the statute, the extraterritorial provision of any service is sufficient to
satisfy the statute. As long as a city itself is providing some type of service outside the city
limits, it can contract with those receiving the services to consent to annexation. The
provision of land use planning evaluation and approval services outside the city limits is
therefore a sufficient basis for a contract that satisfies ORS 222.115.
In addition to this statutory source of authority, the Oregon Court of Appeals has
recognized that in addition to its authority under ORS 222.115, the City's planning authority
also authorizes it to require a consent to annexation as a condition of approval:
Whether or not the county could make annexation to the city a condition of the provision of
city services, the city itself could do that, as an exercise of its planning authority and of its
authority under the annexation statutes. Indeed, that is precisely what ORS 222.115
contemplates.
Bear Creek Valley Sanitary Authority v. City of Medford, 130 Or App at 28 (emphasis in
original). When exercising land use planning authority outside the city limits, the city can
condition approval on a consent to annexation.
Bear Creek Valley is not inconsistent with the position that a city can obtain a consent to
annexation in connection with the provision of land use planning services. Bear Creek
Valley involved a city and county policy of requiring consents in exchange for the provision
of services provided by the sewer district. Because the services were not provided by the
city, ORS 222.115, which applies only to contacts related to the provision of city services,
did not apply. 130 Or App at 29. This case does not involve the provision of services by a
third party, but the provision of land use planning services by the City, Bear Creek Valley
therefore, does not preclude the applicability of ORS 222.115 here.
No court has considered the issue whether land use planning services are "services" as
that term is used in ORS 222.115, and court decisions are not always predictable.
However, the City will have a strong argument that ORS 222.115 does apply if it requires
consents to annexation in return for land use planning decisions.
*THIS DOCUMENT CAN BE FOUND IN THE 1998 DIRECTOR'S INTERPRETATIONS
FILE.
j (r 7 ) e'
alizt.:&/)