LUBA requires Independence review decision

City officials must consider Stryker Road annexation

INDEPENDENCE -- Oregons' Land Use Board of Appeals (LUBA) has required Independence city officials to review a decision from earlier this year to annex a section of Stryker Road.

The matter was remanded to city council after an October hearing in which the state agency concluded that Independence leaders hadn't specifically adopted the necessary legal findings to support the annexation.

Attorneys for the appellants of that decision, Bob and Geraldine Patterson of Independence, question the validity of the findings the city has since submitted.

They also criticize the process the city set forth for issues related to the remand and are asking that discussion be conducted in a public hearing. Council has moved back its proceedings from Nov. 23 to its next meeting in Dec. 14.

In February, the council approved the annexation of a portion of Stryker Road that starts at Sky Raider Drive and runs 1,200 feet northwest to Highway 51. The annexation runs in front of the Pattersons' 5.9-acre property at 601 Stryker Road.

The Pattersons' parcel was one of several "islands" -- unincorporated properties within city boundaries -- in Independence being considered for annexation in fall of 2003. State law allows cities to annex islands without the authorization of the land owner.

During that process, however, the city discovered a stretch of Stryker Road that had never been officially annexed into Independence.

Officials say their goal is to simply correct a planning oversight. In the past, the Pattersons have argued that the city is being disingenuous, and is trying to make an island of their home with the intent of later forcibly annexing their property.

"There's no movement toward that at this point," City Manager Greg Ellis said. "But that doesn't rule out that it may be an issue in the future."

At last week's council meeting, Robert Patterson said the city already provides police and public works service to the road and that annexation would impact only his property.

"Nothing concerning (services) to the road is going to change whether it's annexed," he said.

In October, LUBA asked that the city explain how the proposed annexation is "reasonable" under state statute, Independence's own comprehensive plan and several legal precedents.

Independence's development code doesn't set forth criteria for approval of annexations. As such, the city follows procedures set forth in statewide planning goals.

Dan Atchison, legal counsel for the Pattersons, said the Nov. 17 findings provided to him by Independence staff, who recommended approval of the annexation and adoption of the new information, don't address any of those goals.

In a letter to the city dated Nov. 18, Atchison said officials have been unclear what type of evidence may be presented and who may present new information at the upcoming meeting next week.

He also wrote that the city's limiting of new testimony and written argument from staff, the Pattersons and their legal counsel violates state statute which "mandates that 'any person may raise new issues which relate to new evidence, arguments, testimony and criteria' presented when the local government has reopened the record."

Rich Rodeman, Independence City Attorney, wrote in a Nov. 22 letter that LUBA's remand was for "adoption of findings, not for a new evidentiary hearing."

Rodeman also said that the annexation has adhered to state planning goals because it was within the urban growth boundary acknowledged by the Oregon Department of Land Conservation and Development.


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