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Philomath City Attorney Jim Brewer advised last week that while the state appeals court makes a decision, “I think the best advice for any city right now is to use this time to take a hard look at your annexation criteria and make sure that they really do what you want them to do."

City Attorney Jim Brewer told the Philomath City Council during a Sept. 10 meeting to “plan for the worst and hope for the best” when it comes to a state Court of Appeals decision on a measure that limits voter-approved annexations.

Brewer then advised the city that it should take a good look at its annexation criteria.

“I think the best advice for any city right now is to use this time to take a hard look at your annexation criteria and make sure that they really do what you want them to do,” said Brewer, who also serves as the city attorney for Corvallis. “We might take a hard look at what annexation agreements might look like and what kinds of things you might want to routinely say or include as a condition of annexation.”

A three-judge panel with the Court of Appeals heard oral arguments back on July 13 in Salem to the challenge brought forth by Corvallis and Philomath on Senate Bill 1573, which was signed in March 2016 by Gov. Kate Brown. The League of Oregon Cities did not participate, Brewer said, after missing a filing deadline.

Peenash H. Shah of the Department of Justice’s trial division represented the state.

The cities claim that SB 1573 violates the home rule provisions of their charters. SB 1573 backers promoted the legislation as an effort to streamline the development process and help ease the housing supply crisis in the state.

A lower court in Benton County rejected a request to “stay” or halt implementation of the law while the appeal went forward.

“I would say that it took the panel of judges a little while to warm up — probably four or five minutes,” Brewer said in response to a city councilor’s question on how the proceeding had gone. “It’s very hard to predict what the results are going to be from the questions that they ask. Sometimes, they’re confirming things, sometimes they’re taking things back (to review).”

Judges Darleen Ortega, Chris Garrett and Steven R. Powers heard the case.

“I think that the court is challenged in this case because there’s a lot of political push for ‘gosh, we have a housing crisis’ tied up with ‘well, what about what your constitution says about home rule and how do you work your way around this one?’” Brewer said.

During the hearing, Shad responded to a question from Powers regarding the limits of legislative power, as “so long as the city has some sort of input, that’s OK, and we haven’t crossed that line.”

The questions from the judges largely gave no hints as to how they will eventually rule, although Garrett came the closest when he noted that “it seems to me voters already have given away” the necessary authority to the state.

As for cities taking a look at their annexation agreements, Brewer said affordable housing is an issue that keeps coming up, which has been seen in Sisters and Bend.

“I think that’s a good use of your time, a good use of the planning commission’s time,” he said. “But my advice at this point — let’s pay attention to the code and it says what you want.”

Brewer said a decision on the appeal should come in within two years.

“It could be very, very fast, but I suspect that we’ll at least get a written opinion on it and that’s a good thing,” he said.

In other news from the Sept. 10 meeting:

• The city council approved an ordinance to amend the comprehensive plan and zoning map and a resolution on a development agreement regarding the Millpond Crossing housing project. The council reviewed an environmental assessment report from the developer and during the visitors and petitions portion of the meeting, five residents shared viewpoints. See a separate story for coverage on the Millpond Crossing development.

• The city council approved zoning code changes allowing accessory dwelling units within all residential zones and allowing places of worship to provide housing as required by state law. The approval also covered revisions to environmental considerations to the applicable criteria when considering a zone change or development on land previously zoned or used for industrial or agricultural purposes. Nobody testified during a public hearing. The council will next vote on an amending ordinance to implement the changes.

• The city council approved revisions to code on Type III and Type IV planning application procedures and notifications. Nobody testified during a public hearing. The council will vote on adopting an ordinance at next month’s meeting.

• Garry Black, public works supervisor, received a certificate in recognition of completing the Oregon Department of Transportation's Roads Scholar Program, Level 2. The 88-hour course included information on workplace and roadway safety, advanced traffic control, emergency preparedness and response, bridge inspection, maintenance and repair, and winter road maintenance.

• City councilor David Low accepted the responsibility to serve as a city representative to the Philomath School District.

• Corey Wright, venture catalyst with the Oregon Regional Accelerator and Innovation Network, provided an overview of his outreach activities involving information, mentoring and education for prospective entrepreneurs. RAIN had hosted at least three events over the past two months in Philomath.

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