Massive North Plains Growth Case Heard By County Judge With Ruling Pending

Growth in North Plains, Oregon, was back in Court today. Washington County Judge Andrew Iriwn presided over a very technical court case pitting the City of North Plain’s leadership against its people—at least the 72% of them who clearly told their leaders NO to doubling the size of their town. Both sides made their case, and while the Herald was not in attendance today, we are publishing the press release below that was sent to us by the Friends of North Plains Smart Growth.   

The bottom line here is this: No matter who gets this pending decision to go their way, the other side is appealing it to the higher courts. But what this is really about is the rights of the people over the will of the government. Here we are in 2024, and yet Democracy escapes us even today.  The people have spoken and availed themselves of their constitutional rights.  They filed legal papers for an initiative to put the growth of their town to a vote.  They prevailed in a landslide win despite the City taking the issue to court to stop them from voting.  This court hearing is to throw out the vote and block this process.

Overlords are among us, and they are here in Washington County.  Several of them are sitting on high in North Plains, overseeing what they must see as their fiefdom. 

When asked what was a major point in today’s trial, Aaron Nichols, who leads the Friends For North Plains Smart Growth, said this.

“I think one very telling moment was when Mr. Crean, the city’s lawyer, responded to a question about what happens if the judge rules narrowly on the case before him and finds that no one has brought the constitutional issues or legitimacy of the referendum before him (as, indeed, no one has).  Mr. Crean responded that the city would repass the same ordinance and then simply deny the referendum when Friends on North Plains tries to bring it again.  This despite an overwhelming no vote against the referendum just three months ago and a clear demand from the citizens for a more engaged process that results in a plan they can accept.  This belief in top down and antidemocratic planning is what has put North Plains in the situation they are in in the first place.  We hope, if nothing else, North Plains and other cities learn that the way to avoid messy referenda and court cases is to involve the residents and listen to what they have to say”.  Aaron Nichols  https://www.friendsofnorthplainssmartgrowth.org/

Press Release Date: Monday, August 12th, 2024 

Washington County Judge Considers Whether Voters Can Have a Say in UGB Expansions 

Hillsboro, Oregon: Today, Judge Andrew Erwin heard both sides of the legal case that will determine if a recent and overwhelmingly popular referendum blocking a massive Urban Growth Boundary in North Plains will stand or fall. The issue extends far beyond North Plains and will determine if voters across Oregon can have a direct say in the biggest decisions of how their cities expand and grow. A ruling is expected soon. 

In September, 2023, the small City of North Plains (population 3,396) voted to pass the largest UGB expansion by percentage in Oregon history. If passed, the ordinance would have more than double the city’s size by adding 855.5 acres. Advocates from inside the city and farmers in the immediate area protested this expansion as excessive, lacking in affordable housing, and extremely expensive to service – a magnitude of scale study commissioned by advocates found that transportation and water infrastructure improvements alone would cost over $200 million. 

“Most importantly, we felt that the plan had been designed by and for developers and landowners who wanted to make tens of millions of dollars – not the community who would have to live with the decision,” said Aaron Nichols, President of Friends of North Plains Smart Growth. As one example, Mr. Nichols pointed out that the September vote was the city’s second attempt after it was found that they improperly noticed the first vote in June. 

“The city Council voted before the community had had a meaningful chance to weigh in,” said Nichols, “so we felt we had no choice but to exercise our constitutional right to a referendum.” That vote in May, 2024 resulted in a landslide rejection of the UGB expansion in a 71 to 29 percent vote with a voter turnout that nearly doubled that of the county at large. 

First created in 1902, the right to the referendum (as well as the right to call an initiative or recall an elected official) has long been a hallmark of Oregon’s participatory democracy. A referendum allows a certain percentage of registered voters in a jurisdiction to put a legislative action – actions that are large in scale, permanent in duration, and not compelled by other statutes, by a body of government up for a vote of the people.

Yet this right was called into question during the 2024 legislative session, when the legislature, with strong lobbying from Oregon Property Owners Association and the League of Oregon Cities, passed HB 4026A, a bill that attempts to prevent the use of referenda for expansions of UGBs. This bill was made retroactive to invalidate the referendum to overturn North Plains’ massive expansion that had already qualified for the ballot. 

“It is far from democratic to bring a bill that curtails our constitutional rights during a short legislative session with almost no vetting and with a retroactivity clause that purports to invalidate the first successful referendum on this matter,” said Nichols. “This bill is especially egregious in light of Legislative Council’s opinion that the bill either does nothing, or if it does anything it’s unconstitutional because you can only limit a constitutional right by a constitutional amendment.” The relevance of this bill was argued repeatedly in Judge Erwin’s court room with the judge skeptical that the legislature had the power to interpret the constitution, a power reserved for his branch of government, and all parties eventually agreeing that the bill likely “did nothing.” 

Jesse Buss, one of the plaintiffs’ lawyers, argued that the constitutional matter was not even before the court and could not be decided today. Instead, he asked for a simple finding of fact, that the city did allow the referendum and that, without a challenge to the constitutionality of the referendum the vote should stand. The city’s attorney responded that that would not get to the heart of the case and that the city would simply repass their ordinance and deny the next referendum, bringing everyone back to Judge Erwin’s court. “Such a course of action obviously ignores the will of the vast majority of voters in North Plains, voters Mr. Crean feels make only visceral rather than rational decisions. It would be disappointing to see the leaders of an elected government tread so far down an anti-democratic path,” said Mr. Nichols. 

Though arguing for a narrow ruling on this case, Mr. Buss acknowledge that the ultimate issue is much bigger: “My clients, locals and local farmers, were happy to have their day in court today and look forward to receiving Judge Erwin’s written ruling whenever that may come. Of course, while this case is about voting rights in a small farming town, it is about much more than that. The shockwaves from Judge Erwin’s ruling will reverberate throughout the state. That’s because this case is fundamentally about preserving local voting and direct democracy rights everywhere in the state, and preventing government officials from usurping those rights. It’s about conserving farmland for those who rely on Oregon’s farm economy–and that’s all of us. It’s about trying to maintain balance: balance in political power and balance in local growth. This is a critical time in the history of Oregon’s land use system.” 

Mr. Dobson, co-counsel for the plaintiffs, brought an argument that did go to the constitutionality of the referendum. Far from UGB decisions being “compelled in substance” he showed that case law clearly points to “large scale and permanent decisions,” which this massive expansion surely is, are legislative and therefore referable to the voters under Article IV of the Oregon Constitution. He showed the city’s wide latitude and discretion in choosing both how much land came into the city by citing a letter from the State land use agency reminding the city that they could take between zero and all of the land identified as “employment land.”

While the City of North Plains, like any city with a population under 10,000, is not legally required to create an expansion plan, it is embarking on a “re-look” of the expansion. Citizens groups are excited about the city’s new approach, but cautiously watching to make sure that the composition is more representative of the city and its surroundings, and that the re-look includes a broader discussion of residents’ vision for a future that they need, want, and can afford. The re-look in itself suggests that the city does have wide latitude in deciding what land will come in and where as it proposed bringing multiple different potential UGB proposals to the voters. 

Some interests have expressed concern that allowing referenda on decisions like UGB expansions could have repercussions for affordable housing. However, advocates point out that housing production strategies, zoning ordinances, etc. are administrative, not legislative, and so not subject to referenda. “Allowing referenda to be on the table, as they have been for similar decisions for 122 years, should encourage all cities to fully engage with their residents and work in a transparent manner to build cities their residents actually want,” stated Nichols. 

Judge Erwin said he would issue an opinion quickly, one he acknowledged would surely be appealed.