At the beginning of the current 2015 legislative session, Sen. Fred Girod (R-Silverton) put forward Senate Bill 534, which will enable cities to provide water and sewer to airports without annexation into the city. This bill is not only unnecessary because provision of these services is possible under current land use laws (provided a need is shown), but it is a specific gift to the Aurora Airport and has state-wide implications.

FOFP met with Sen. Girod, and he made it quite clear that the Aurora Airport asked for the bill, and he made light of the probability of it passing. When asked about who would pay for the urban services to be provided, Senator Girod stated that the cities entering into the agreements would have to create a financing mechanism!

The bill subsequently went to the Senate Business & Transportation Committee, where it was treated as a “transportation bill” and promoted by Sen. Betsy Johnson. It passed the Senate almost unanimously (one opposing vote) and was moved to the House Committee on Rural Communities, Land Use and Water.

The implications are significant:

  1. The first issue is municipal governance. In the case of the Aurora Airport, it sits in Marion County, and with the provision of water & sewer is in position to develop without any municipal oversight!
  2. Most general aviation airports across the state that are outside city limits sit on farmland or forest lands. Development at these airports threatens both!
  3. Sewer and water are expensive urban services to provide, and the bill’s proponents are relying on the cities to develop the means to finance providing these services via municipal bonds, etc. If something goes wrong, it is the local taxpayers who are on the hook!
  4. If provision of urban services drives significant commercial development at airports, that development could very well come at the expense of nearby cities!

On May 12 the Committee on Rural Communities held a hearing for the bill, which saw oral opposition testimony from City of Wilsonville, City of Aurora, Clackamas County Farm Bureau, Charbonneau Country Club, Friends of French Prairie and 1000 Friends of Oregon. Additionally, written opposition was submitted by City of Canby, Friends of Family Farmers,

The proponents of the bill tried to characterize it as a “jobs bill” and made light of the potential negative consequences, positioning it as a bill “to provide bathrooms for pilots!” However, none of them could discuss the bill without acknowledging that it had a significant potential to drive airport-related development, and Marion County Commissioner Kevin Cameron even positively described the “industrialization” it would bring about at the Aurora Airport.

Of note, there was some confusion during the proponent’s testimony about whether the bill as written would prevent cities from annexing in the future the airport to which services were being provided. Chair Clem sought a legal interpretation from legislative counsel and received it during the hearing: the bill does prevent any future annexation of the airport to the City providing the services after an agreement has been reached and services provided.

FOFP’s position on this bill was:

  1. It is unnecessary, and sets a bad precedent by removing municipal governance from the provision of urban services necessary for development.
  2. Provision of these services should not be allowed if the development that follows requires the rezoning of high value farm land or forest land.
  3. If these services are to be provided by cities, the entire cost of providing them (including capital and operating costs) should be paid for by the airports, not financed by the local taxpayers.
  4. Provision of these services should require the approval of all cities within three miles of the airport to prevent negative impact on the cities through development.

Given the near unanimous passage in the Senate, the Rural Communities committee was under significant pressure to move the bill forward, and to their credit, considered amendments proposed by City of Wilsonville and Friends of French Prairie. These amendments would have required airports to pay for all water and sewer costs, would have prevented loss of farmland due to airport development, and required municipalities within three miles to agree. At a work session on May 25, again under a lot of pressure from proponents, the Rural Communities committee again discussed the bill. Chair Clem announced that he had sought legal interpretation from DLCD regarding whether the bill would have any impact on the “exception process” requirements in current land use law. He reported that DLCD’s opinion was that it did not change the exception process. Download the DLCD letter here.

The Rural Communities Committee passed the bill, having determined that it was better to pass the bill as is, given that the exception process still applies, rather than fight for the proposed amendments and risk having another amendment put forward that would change the applicability of the exception process. The bill went to the House Rules committee, where there was also no traction to add amendments. The bill went to the full House on July 3 and passed with 50 Ayes and only 9 Nays (Reps. Barnhart, Barton, Buckley, Holvey, Lininger, Nosse, Smith Warner, Taylor, Williamson). Of note, Rep. Clem requested that the DLCD letter be read on the House floor so all understood that the bill addressed annexation specifically and did not impact state land use law. Thus it became part of the Legislative record. Download the legislative chronology on this bill here.

We asked Mary Kyle McCurdy of 1000 Friends to explain the importance of this re: land use law.

SB 534, in its entirely, reads:

Be It Enacted by the People of the State of Oregon:
A city and an airport may enter into an agreement pursuant to which the city provides sewer and water services to the airport without requiring the annexation, or consent to eventual annexation, to the city of the territory on which the airport is situated.
This 2015 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2015 Act takes effect on its passage.

This bill is about annexation to a city; it is not about land use. Annexation laws have been around much longer than Oregon’s land use program, and deal with the municipal governance boundaries of a city. The land use laws and annexation laws are awkward together because they grew up over different time periods and for different reasons. City boundaries were initially drawn over a hundred years ago. City boundaries are not co-terminus with the UGB. Usually, the UGB is larger than the city boundary because the UGB contains a 20-year land supply. Cities normally annex land within the UGB over time, as they provide municipal services to those lands. So normally (but not always), a city would not extend urban services to lands without first annexing them into the city boundaries.

Land use law (in particular, Goal 11 and its administrative rule) prohibits cities from extending urban services (water, sewer, storm water) outside a UGB unless (1) DEQ declares a health hazard and makes the city come in and solve the problem (failing septic systems, for example, but this is not frequent), or (2) the city & airport justify an “exception” to the land use goals that would otherwise apply – which in this kind of case would be Goals 3 and 11. To get an exception, the entity applying for it (the county must grant the exception and it is subject to appeal to LUBA) must demonstrate that there is a really good “reason” for the exception, and that there are no good alternatives to the extension of the urban services across EFU land. If the applicant can demonstrate this, the service extension would be limited to the use and reason that was the basis of the justification, and there could be requirements to take the route that is least damaging to farmland.

Here, as I understand, the Aurora Airport is outside both the city limits and the UGB, and it would require running pipes through EFU land to serve the airport or the area around it with water and/or sewer service. The bill says nothing about the exceptions process; it is just about annexation. So the requirement for an exception is still the law.