Appeal from Circuit Court, Linn County. Wendell H. Tompkins, Judge. No. 41427.
James H. Jordan and Peter L. Powers, Albany, argued the cause for appellants. On the brief were Weatherford, Thompson, Horton & Jordan, P.C., Albany.
Jackson L. Frost, District Attorney, Albany, argued the cause and filed the brief for respondents.
Langtry, Presiding Judge, and Foley and Fort, Judges.
This is a writ of review proceeding in which the circuit court upheld action of the Board of County Commissioners of Linn County in enlarging the area of a city proposed in a city incorporation election petition. It is contended that the county commissioners acted erroneously and arbitrarily in thus enlarging the proposed boundaries and that they exceeded their jurisdiction in this regard. These issues raise the question, when a county court or commission is deciding boundaries for a proposed "new city" election, is it acting in judicial or legislative capacity?
Petitions for a city incorporation election were filed with the Linn County clerk in March 1972, proposing the incorporation of an area designated therein as Millersburg, lying northerly of the city boundaries of Albany which has a population of 19,300 according to the 1973-74 Oregon Blue Book. The census taken in the area showed that 170 persons resided there. The petitions were signed by 102 persons, of whom 48 were registered voters. The map accompanying the petition shows the proposed area of the city to be contiguous to the Albany city limits on the southeasterly side. From that point it is spread out generally along Interstate 5 highway, between the highway and the Southern Pacific railroad right of way, and immediately to the west of the Southern Pacific right of way. The area shown on the map appears to be eight or nine times longer than its average width. It is described by a detailed metes and bounds description in the petition which does not indicate its total acreage. At
the hearings before the county commissioners it was repeatedly stated that there were 75.6 acres in it; in the briefs on appeal and in other documents it is described as containing 160 acres; and in the petition for writ of review it is stated that there are 182 acres in it.
After the hearings were completed, the commissioners had added to it so that there was a total of some 2,320 acres in the area to be referred to the electors therein for a vote on the proposition of incorporation. The property which was added to that originally proposed lies mostly in a fan shape northerly of the north end of the area originally proposed, but one added tract moves the proposed boundary westerly to include substantial frontage on the Willamette River. Several large industries are located in the added area, as well as agricultural land, a school, and more property used for residences. During the hearings before the commissioners Mr. Blunk, who is an officer of Millersburg Development Company and Teledyne Wah Chang, apparently sister corporations, stated that those corporations own a total of about 100 acres in the general area. It is not clear how much of this 100 acres was included in the original incorporation description but Mr. Blunk said it looked like about one-half of the land in that area belonged to them. The major part of the $17 million assessed value of the original area is in the industrial plant of the Teledyne Wah Chang metals corporation. That corporation was an active promoter of the original area proposed for incorporation and actively opposed the expanded boundaries. Some of the comments at the hearings indicated overtones to the effect that Wah Chang was fearful of being annexed to the city of Albany and was seeking the incorporation as a block thereto.
The contentions that the county commissioners acted erroneously and arbitrarily and that they exceeded their jurisdiction are so intertwined that we will discuss them as one. The procedure for the incorporation of new cities is found in ORS 221.010 through 221.100. These statutes provide that unincorporated areas in which at least 150 persons reside may incorporate by approving thereof in an election after petitions have been presented to and acted upon by the board of county commissioners of the county where the land lies. At least 20 per cent of the voters in the area must sign the petitions, which concededly occurred here. A 1965 amendment to the law, Oregon Laws 1965, ch 579 (the "urbanization" amendments), provides that, where any of the area proposed to be incorporated lies within an urbanized area (an area where all territory, among other things, is within six miles of a city having a population of 5,000 or more), there must be a resolution of the proximity city approving the incorporation or the petitions must be signed by at least one-half of the landowners who must themselves own one-half of the area of land and at least one-half of the assessed value of the real property in the area. The latter provision was met by the petitions in the case at bar. The city of Albany informed the county commissioners that it opposes the incorporation.
For purposes of our determination ORS 221.040 is the most important part of the incorporation Act. It provides in subsection (2) that
"* * * [t]he court [the county commission] may alter the boundaries as set forth in the petition to include all territory which may be benefited by being included within the boundaries of the proposed incorporated city, but shall not modify
boundaries so as to exclude any land which would be benefited by the formation of the proposed city. No land shall be included in the proposed city which will not, in the judgment of the court, be benefited * * *."
We perceive three provisos concerning the action of the board of county commissioners in this statute. First, the commissioners may alter proposed boundaries to include all territory which may be benefited. Second, they shall not modify boundaries to exclude land which would be benefited. Third, they shall not include land which, in the judgment of the commissioners, will not be benefited. At the hearings where the Board of County Commissioners was exercising the judgment thus enjoined upon it, it heard comment from Mr. Hector MacPherson in which he said:
"* * * I request that the boundaries of the proposed city be extended out to include not only the old Millersburg School but out as far as the Morning Star Grange Hall, which happens to include my property. I think there would be substantial benefit to my property to have Wah Chang build me a sewer ...