Oregon City should take state's pre-emption threats to court
Eighteen years ago, while I was mayor, the Oregon City Commission asked the citizens of Oregon City, through a public vote, to accept or reject, an amendment to the city's charter that would require all future annexations of land to the city be put to a public vote.
We believed that people with "skin in the game," those citizens who are closest to an issue, bear the costs and live with the outcomes of government decisions, should have direct participation, whenever possible, in those decisions.
We also knew that the citizens of Oregon City and the state took pride in a tradition of independent thinking, and a practice of good government with imitative and referendum, and of giving direct power to the people whenever possible.
The charter amendment passed by a large majority of Oregon City voters. That amendment is still in effect. However, the citizens of Oregon City will not be voting on future annexations. How did that happen? Can they really do that?
Housing-industry lobbyists convinced the Oregon Legislature and governor to negate any city-charter clauses requiring public vote on annexations by passing a law (Senate Bill 1573) to "pre-empt" the will of voters in Oregon City and 25 other cities in Oregon with similar controls on annexations.
The legal doctrine of "pre-emption" allows higher levels of government to intervene and overrule lower levels of government. The concept of pre-emption is found in the Supremacy Clause of the U.S. Constitution and many state constitutions. Our federal government can legally pre-empt state and local laws, and the states can pre-empt city and county ordinances.
One could reasonably expect the power pre-emption to be used for exceptional public purposes, like enforcing the U.S. Constitution's Bill of Rights, as well as state and federal criminal statutes. Unfortunately, the power of pre-emption is being used excessively on a variety of less important issues by many states, including Oregon. Several Texas cities are battling with their governor and legislature over pre-emption. Wisconsin, Tennessee, New York, Florida, Iowa, and Pennsylvania are hot spots of disputes about pre-emption powers.
Unfortunately, in the case of the pre-emption of the Oregon City annexation charter amendment, a majority of the Oregon City Commission surrendered to the new state law. They no longer put annexation proposals on the ballot as required by the City Charter.
They could have championed direct citizen participation by following the City Charter and put all annexations out to a vote. A vote for home rule would have put the burden-of-proof on annexation applicants to prove that pre-emption over local control in this area was constitutional and valid. The city of Corvallis, when faced with the same issue, is challenging the state's pre-emption in the courts.
Nationwide the courts are being asked to make pre-emption related rulings on a variety of issues like local tree cutting and planting, the banning of plastic bags, restroom arrangements, zoning issues, spending caps, texting-while-driving ordinances, local gun registration and annexations.
Several organizations, including the National League of Cities, and the Campaign to Defend Local Solutions, are leading the charge against efforts to pre-empt local control. The arguments of those of us looking for relief from pre-emption can be summed up as: "Yes, there will be times when regulatory uniformity is necessary, but states should give greater deference to the principle of local control."
Local control in Oregon was thought to have been assured in 1906 when a group of concerned leaders, known as the People's Power League, gathered enough signatures to put the question of "Home Rule" on a statewide ballot. It passed with an overwhelming majority, amending the Oregon State Constitution (Article XI ~2) and assuring Home Rule and limiting the power of the Legislature. Today 242 cities in Oregon have adopted Home Rule Charters, including Oregon City.
But the Oregon State Constitution, as amended, has not turned out to be the last word on "pre-emption" versus "local control." The courts have had differing interpretations of what "Home Rule" encompasses.
A review by the League of Oregon Cities 10 years ago found at least 47 instances of pre-emption or limitation placed on cities by the state. Not all of them were contentious court fights, but some were highly visible battles with important consequences.
One developed after Washington County began taxing the transfer of real property. Economic interests immediately confronted the Legislature, and the result was ORS 306.815 that established a prohibition on cities and counties in Oregon from imposing taxes or fees on the transfer of real property. Right or wrong as a tax, it was a pre-emption.
Other examples in Oregon include control of cigarette and liquor taxes, prohibitions on certain kinds of housing; labor laws; regulation of truck routes; airport regulations; regulation of tobacco-vending machines; public-meeting laws; city sewers and sanitation; voter approval of annexations; and regulations and taxes generated to support urban renewal.
The Oregon voters in 1906 who approved Home Rule intended cities to meet the needs of local citizens using "direct democracy." Oregon went from a "show me where it says I can" state, to a "show me where I can't" state.
The Oregon City Commission gave up on 111 years of direct democracy when it caved in to state pre-emption on voter approval of annexation.
Another test of pre-emption is in the court system. Oregon City voters amended the City Charter to prohibit the Urban Renewal Commission, and any other agencies of the city, from using tax increment financing for the operation of development programs. Oregon City and its Urban Renewal Commission challenged the charter amending petition as "unconstitutional," and asserted that state law permits tax increment financing regardless of the change to the city charter.
A judge in the Circuit Court of Clackamas County handed down a split decision, ruling the charter amendment was constitutional, but that state law over-rides Oregon City Home Rule authority on urban renewal taxation.
The co-sponsors (I am one of those sponsors) of the city charter amendment are contemplating what further legal actions might be undertaken to reverse this pre-emption win over local control.
In 1906, a handout from the People's Power League promoting Home Rule said: "The adoption of these constitutional amendments will give COMPLETE HOME RULE to the voters of every county, city and town... including city charters to be enacted and amended by each city for itself..." It concluded, "The object is to increase the direct power to the people."
Let's hope the eventual outcome to the challenges of "pre-emption" in annexation and urban-renewal taxes will fulfill intent of some very wise people.
Former mayor John F. Williams, Jr., is an Oregon City resident.