Judge allows North Plains group to keep urban growth boundary referendum on May ballot

Washington County Circuit Court judge Andrew Erwin granted a temporary restraining order Thursday that allows a North Plains referendum to remain on the ballot this May, in what appears to be the first legal challenge of a law Gov. Tina Kotek signed that would have retroactively banned referendums on Urban Growth Boundary issues.

"We fully expect the city to continue to fight this in court,” Aaron Nichols with Friends of North Plains said in a press release. “They haven’t accepted that direct democracy puts the final decision in the hands of voters yet and I am sure they will challenge this law for as long as they can. And I am sure they will continue to lose in court.”

Last September, the city council of North Plains proposed doubling the city's size by adding 855 acres to its Urban Growth Boundary. Friends of North Plains petitioned to send the proposal to voters through a referendum in May.

But lawmakers essentially killed the proposed measure during the short session when they approved House Bill 4026. The bill limits what can be sent to a referendum vote, banning land-use decisions from being subject to referendums. It retroactively applied to the North Plains proposal.

During the short legislative session that ended early this month, legislative attorneys said the bill was “redundant,” but necessary, to clarify that land use questions are administrative and not legislative so they are outside the scope of referendum powers of local voters.

“Although the referendum right is constitutional, it is not unlimited,” Catherine M Tosswill, special counsel with the legislative counsel committee, wrote Feb. 20 in a letter to Rep. Mark Gamba, D-Milwaukie, who had asked whether the bill was constitutional.

Supporters of the bill said the process to expand a city’s Urban Growth Boundary already requires a lengthy approval process. HB 4026 received bipartisan support in both chambers passing 45-9 in the House and 25-3 in the Senate.

Urban Growth Boundary process should be exempt from referendum, supporters argue

The League of Oregon Cities specifically addressed the North Plains situation in testimony during the Legislature.

Expanding the Urban Growth Boundary requires a process established in 1973 by a law that provides “ample opportunity” for stakeholders to make their voice heard, said Ariel Nelson with the League of Oregon Cities.

Cities that don’t comply with the requirements of the Land Use Board or Land Conservation and Development Commission send proposals back to the city.

“Cities need to rely on a predictable land use system to do their part in addressing Oregon’s housing crisis," Nelson said. "The existing UGB expansion process is long, expensive, and litigious. Cities cannot afford to litigate referrals.”

Referendum referrals could be weaponized to prevent UGB expansion decisions and other decisions that will come as cities try to meet new production goals, she added.

Nelson's comments were echoed by the Association of Oregon Counties which said the bill would help cities continue partnerships with the state on the current housing crisis.

In a vote explanation, Sen. Janeen Sollman, D-Hillsboro, said a referendum petition coming at the end of a long year’s process “undermines the land use system we have built over the years.”

Friends of North Plains condemns governor signing bill

The North Plains City Council said after the ruling Thursday that the council understood support for the expansion of the Urban Growth Boundary is not unanimous and addressed "key questions" about the expansion and HB 4026.

The expansion was initiated "many years ago," and the September approval was the conclusion of a three-year process, the council said.

"Rumors are circulating that the City of North Plains petitioned the state to block residents from voting on the UGB referendum in the upcoming May election. This is not the case," reads the statement.

"I stand by our efforts to do the right thing for our residents," wrote North Plains Mayor Teri Lenahan on Facebook.

Friends of North Plains called the legislation an attempt from developers, the city council, and state lawmakers to cancel an election “they don’t want to happen" in a statement released Wednesday announcing they had filed for a temporary restraining order to keep the referendum on the ballot this May.

The group's lawsuit seeking a temporary restraining order to keep the referendum on the ballot was filed against Lori Lesmeister, city elections cfficer for the City of North Plains, the North Plains City Council, and Daniel Forester, the elections manager for Washington County.

The petition asked the Washington County Circuit Court to grant emergency relief and keep the referendum on the May ballot. The deadline to withdraw or remove referendums from ballots was Thursday afternoon.

“It's concerning that the Governor signed the bill into law only late in the afternoon the day before the election filing deadline," Jesse Buss, the attorney representing the group, said in a prepared statement. "That delay created, intentionally or not, a highly constrained timing situation, giving the voters of North Plains very limited time —measured in hours, not days or weeks — to go to court.”

They asked the court to order the referendum to be submitted to North Plains voters, to prohibit the removal of any attempt to remove the referendum from the ballot, and any other temporary relief the Court deems necessary.

Buss said he believed the judge made it clear the time to challenge the constitutionality of the referendum was before the election.

Friends of North Plains had argued any pre-determinations needed to have been made in 2023, Buss said.

"The Oregon Legislature has no authority to declare what is, and what isn’t, subject to the constitutional right of referendum. It is that simple," the complaint reads.

Dianne Lugo covers the Oregon Legislature and equity issues. Reach her at dlugo@statesmanjournal.com or on Twitter @DianneLugo

This article originally appeared on Salem Statesman Journal: North Plains group can keep urban growth boundary referendum on ballot