PETERESEN v. KLAMATH FALLS, 27 Or. App. 225 (1977)

555 P.2d 801

No. 74-515 E, CA 5665Oregon Court of Appeals.Argued September 27, 1976.
Affirmed November 1, 1976. Reconsideration denied December 8, 1976. Petition for review allowed May 24, 1977. See later issue of Oregon Reports.

Appeal from Circuit Court, Klamath County, Pat Dooley, Judge.

Henry R. Richmond, III, Portland, argued the cause and filed the briefs for appellants.

B. J. Matzen, Klamath Falls, argued the cause and filed the brief for respondents Mayor and Council of the City of Klamath Falls.

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William P. Brandsness, Klamath Falls, filed a brief for respondents Alan W. Bowker and Melvin L. Stewart.

Blair M. Henderson, Klamath Falls, argued the cause and filed the brief for respondents Everett L. Leach and Wayne M. Cole.

Before Schwab, Chief Judge, and Fort and Thornton, Judges.

Affirmed.

SCHWAB, C. J.

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SCHWAB, C. J.

Plaintiffs appeal from a circuit court order upholding a City of Klamath Falls ordinance which annexed 141 acres of land to the city. The principal question raised is whether certain land-use control provisions of ORS ch 197 apply to annexations.

Defendants Bowker, Stewart, Leach and Cole own various parcels which together constitute the 141 acres in question. They proposed an annexation of the land to the City of Klamath Falls. After hearings, at which plaintiff Petersen appeared, the city council annexed the 141 acres by ordinance. The circuit court upheld the ordinance, and this appeal followed.

Plaintiffs contend that the annexation of land is an exercise of land-use “planning and zoning responsibilities,” as that phrase is used in ORS 197.175(1) or, stated differently, that annexations are “actions * * * affecting land use,” as that phrase is used in ORS 197.180.[1] Based on this contention, plaintiffs argue that annexations must comply with: (1) the statewide land-use planning goals provided in ORS 215.515;[2] and (2) the procedural requirements which the Fasano decision imposes upon “judicial” land-use decisions.[3] Finally, plaintiffs argue that the annexation ordinance in question is invalid because the city council neither considered statewide planning goals nor applied Fasano procedures when adopting the ordinance.

These arguments are untenable because the underlying contention is erroneous; annexation itself is not an action affecting land use, much less an exercise of

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judicial planning or zoning responsibilities. The nature of annexation is disclosed by an examination of ORS chs 222 and 227. ORS 222.111(1) provides that

“* * * the boundaries of any city may be extended by the annexation of territory not then within a city and which territory is contiguous to the city * * *.”

Annexation, then, is a process of boundary extension, not of determining land uses.[4] This conclusion is reinforced by the language of ORS 227.310:

“City zoning regulations originally inapplicable to any area not within a city shall, upon inclusion of the area in the city, continue so inapplicable until applied by the city.”[5]

We read this statute to mean that annexation itself has no effect on the land-use designations which apply to annexed land. This would be true even if the annexed land was unzoned, because city zoning regulations would “continue [to be] inapplicable.”[6] By

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expressly differentiating between annexation and land-use activities in this manner, the legislature has indicated that boundary extension alone cannot affect the uses to which land can be put.

The real thrust of plaintiffs’ argument is that the city is likely to rezone the property in question, and that when it does so, even though it follows the various statutory and judicial requirements, it may not reach a result desired by plaintiffs. As a generalization, it is not the business of courts to prescribe administrative procedures on the basis of the result they are likely to produce.

Affirmed.

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