The Oregon Court of Appeals last month raised a zombie city, otherwise known as Damascus, that most people thought was long buried in the municipal graveyard, creating havoc and headaches for other governments in the Portland region. The story of this death and resurrection won’t be as spellbinding as one told around a campfire on a dark night, but it is disturbing nonetheless. The municipal gravestone memorializes the life of the city from the time it was incorporated in 2004 until it was purportedly disincorporated in 2016. A Damascus city councilor, James De Young, challenged the disincorporation vote in a lawsuit against the governor and Clackamas County, losing that challenge in the trial court. He then took an appeal to the Oregon Court of Appeals, contending that the disincorporation did not follow state law.
Most people know the travails of Damascus, the city that incorporated when Metro expanded its urban growth boundary to take in land that was supposedly needed for additional growth. Farm and forestry could not occur on an economic scale there because of terrain and past land divisions. Thus, this area of Clackamas County became the region’s choice for urbanization.
First, the inhabitants of the region did not want Clackamas County or the nearby cities of Gresham or Happy Valley to make land use decisions for the area and quickly followed the procedures to incorporate. However, self-sovereignty comes with responsibilities including: organization, public safety, public works and, ultimately, land use planning. Until the city adopted its own plan, it retained the Clackamas County Plan imposing rural rather than urban development standards. But the city could never adopt a plan. The citizens decided any plan must be voted upon. A fractious atmosphere ensued as plans were proposed and rejected and the state warned of land use enforcement actions that might include loss of state shared revenues or land use administration by other than city officials.
The city’s brief political history included frequent quarrels, impasses, and changes of staff, management and council members. Property owners looked to leave the city because they could not develop their land, as there was no plan or regulations to supersede those of Clackamas County. A petition to disincorporate was filed in 2013, but failed because state law requires a majority of the voters of the city (not just those who voted) to approve the petition in a November general election.
Citizens then went to the Legislature to find a way out of this imbroglio by disincorporating the city in a different way. The Legislature passed two bills in 2015: one authorizing a disincorporation vote (Measure 93) to city voters in the May 2016 primary election and another dealing with the winding down of the city in the event the vote was affirmative. A majority of the voters agreed to disincorporate the city.
Although many thought this was the end of the story, Mr. De Young filed suit, alleging the approval of the disincorporation measure was invalid because the election violated two applicable state statutes – one that required a majority of all the voters to approve the measure and another requiring the vote to be held only at the November general election.
The state responded that these laws were inoperative because Measure 93 said the disincorporation vote was to be effective “notwithstanding” these and other disincorporation laws. The Court of Appeals pointed out that those statutes were the exclusive means authorized by law for disincorporation. The only reference to these statutes being inoperative was in the measure itself and only at a time following a favorable vote in the disincorporation election. The Legislature did not change the statutes requiring a majority of all voters to approve disincorporation in a general election. Mr. De Young thus prevailed because of this oversight.
The result is a mess for all concerned. Damascus appears to be resuscitated, although it currently has no funds, no property, no staff and no budget. About 1,000 acres of its territory (including the home of its last mayor) has been annexed to the city of Happy Valley. Are the annexations, none of which were appealed, valid? What is the territory? How does it fund city operations? How does the city reorganize, hire staff, or pass a budget by July 1?
These dire results might have been avoided had those crafting the legislation, including the interested local governments and Metro, as well as the state of Oregon, taken more care with its wording. It is now near the end of the 2019 legislative session and there is risk in attempting to engineer yet another legislative fix, lest the cure once again be worse than the disease. The expansion of the regional urban growth boundary in 2004 was predicated on adding needed urban land for the region. We are now 15 years further with no viable prospect that this confusion will dissipate soon. The result does no credit to the region or the various public agencies involved, least of all the city of Damascus, should it decide to stay resurrected.