IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

KEITH M. GARZA, an individual elector,

Petitioner, v.

Case No.:

PETITION TO REVIEW BALLOT TITLE

BOARD OF COUNTY COMMISSIONERS FOR CLACKAMAS COUNTY, a public body,

Respondent.

(Not an action for damages)

NATURE OF PETITION

1.

This is a petition pursuant to ORS 250.195 to review the Ballot Title for the referral of a

measure for the May 21, 2013, election that the Board of County Commissioners for Clackamas

County ("Board") has authorized as Resolution 2013-04. (A copy of Resolution 2013-4 and its

attachments are appended to this petition for the Court's consideration.)

PARTIES

2.

Petitioner Keith M. Garza is an elector within the meaning of ORS 247.002(2) and

Article II, section 2, of the Oregon Constitution. He resides within and is registered to vote in

Clackamas County, Oregon. Petitioner is dissatisfied with the Ballot Title filed with the County

Clerk by the Board and has standing to bring this petition pursuant to ORS 250.195(1).

Page 1 — PETITION TO REVIEW BALLOT TITLE

3.

Respondent Board is the governing body of Clackamas County.

BACKGROUND

4.

Tri-County Metropolitan Transportation District of Oregon ("TriMet") is a mass transit

district that, among other things, operates a light rail system in Clackamas, Multnomah, and

Washington counties. An expansion of that system, the Portland-Milwaukie Light Rail Project

("PMLR"), is currently under design and construction.

5.

In March 2010, the Board (on behalf of the County, the Clackamas County Development

Agency, and the North Clackamas Parks and Recreation District) entered into an

intergovernmental grant agreement ("IGA") with TriMet regarding the PMLR and setting out the

rights and obligations of the parties regarding funding, design, and construction. The IGA

requires the parties to use their best efforts and fully cooperate and coordinate with each other to

ensure completion of the PMLR in accordance with the terms of the IGA.

6.

In August 2012, the Board (on behalf of the County) and TriMet entered into a

supplemental agreement ("Supplemental IGA") regarding the County's share of funding for the

PMLR as well as permit fees and development charges.

7.

As described generally in the Ballot Title's summary, the IGA and Supplemental IGA

obligate the County to fund some $1.2 million in road and signal improvements, to permit

TriMet to use and occupy certain portions of county roads and sidewalks, and to transfer to

TriMet a particular parcel of real property valued at $20,915. Additionally, and pursuant to the

IGA's full-cooperation clause, the County is obligated to transfer to TriMet another parcel of real

property valued at $1,360.

Page 2 — PETITION TO REVIEW BALLOT TITLE

8.

On September 18, 2012, Clackamas County voters approved Measure 3-401, which, as

amended by the Board, is codified as Clackamas County Code section 1.03.010. Measure 3-401

provides, in part, that the Board "may not authorize the use of county resources for the financing,

design, construction, or operation of any public rail transit system without first obtaining the

approval of county voters at an election on an authorization ordinance." Clackamas County

Code section 1.03.010(A).

9.

Before the September 2012 election, the Office of County Counsel for Clackamas County

provided an opinion to the Board that, if approved, Measure 3-401 would not affect the County's

existing obligations to TriMet with respect to the PMLR project.

10.

Measure 3-401 became effective immediately upon its passage and, as a matter of law, is

both substantive and applies only prospectively to obligations or county resource authorizations

that arise on or after its effective date.

11.

On February 21, 2013, the Board adopted Resolution 2013-04. That resolution, which

twice cites Measure 3-401, directs that an ordinance be placed on the ballot for the May 21, 2013,

election authorizing the Board to use specified County resources to fulfill the contractual

obligations described in paragraph 7, supra ("Authorization Ordinance"). Under the IGA and

Supplemental IGA, however, the County already is obligated to perform those obligations, and

Measure 3-401 was neither intended to nor as a matter of law has any retroactive effect.

TIMELINESS

12.

The Board filed the Ballot Title for the Authorization Ordinance with the Clackamas

County Clerk on February 26, 2013.

Page 3 — PETITION TO REVIEW BALLOT TITLE

13.

This petition is timely and otherwise properly before the Court because it is being filed in

the Circuit Court of the judicial district in which the County is located and not later than the

seventh business day after the Ballot Title was filed with the County Clerk, all as ORS

250.195(1) requires.

ALLEGATIONS OF INSUFFICIENCY AND UNFAIRNESS

14.

Petitioner incorporates by reference and realleges paragraphs 1 through 13 above.

15.

Petitioner accepts both the "Caption" and "Question" of the Ballot Title as drafted by the

Board. The Court, however, remains free to certify a different caption, should it be so inclined,

after reviewing the title pursuant to ORS 250.195(1).

16.

The "Summary" of the Ballot Title is insufficient and/or unfair in the following respects:

(a) Measure 3-401, as alleged above and according to its plain terms, applies only

prospectively and does not affect outstanding County obligations. The first

sentence of the Summary, however, incorrectly describes Measure 3-401 as

"call[ing] for a public vote before any County resources are used for Public Rail

Transit." (Bracketed text and emphasis added.) Modifying the term "County

resources" with the adjective "any" is overbroad, misleading, and, consequently,

both insufficient and unfair under ORS 250.195(1) in that it incorrectly suggests

that voters are required — or even permitted — to re-authorize County resources

already dedicated but not yet disbursed or transferred. Moreover, and as alleged

further in paragraph 16(b), infra, any mention of Measure 3-401 in the Ballot Title

is likely to mislead voters because Measure 3-401 cannot, as a matter of law,

provide a source of authority for putting the Authorization Ordinance before the

Page 4 — PETITION TO REVIEW BALLOT TITLE

voters. The word "any" should be deleted and the Court should further amend the

sentence to use the words of Measure 3-401 itself when describing what that

measure requires.

(b) Because Measure 3-401 is prospective only in its application, the introductory

phrase in the second sentence of the Summary — "[i]n accordance with Measure 3-

401" — is patently incorrect and falsely tells voter that it is Measure 3-401, rather

than some independent Board objective, that mandates their consideration of the

Authorization Ordinance. At a minimum, the phrase needs to be excised from the

sentence.

(c) The second sentence in the second paragraph is misleading and therefore both

insufficient and unfair in that — even contrary to the misleading phase discussed in

paragraph 17(b), supra, — the sentence suggests that a vote on the Authorization

Ordinance is being required, not by Measure 3-401, but instead by the IGA and

Supplemental IGA: "The County is asking for voter approval of these items to

comply with the terms of Agreements * * *." That sentence must be rewritten.

(d) The introductory clause of the first sentence of the third paragraph in the

Summary — "If voters approve the Measure" — is insufficient and unfair for the

reasons set out above and in that it communicates to the electorate that a voter-

approved authorization ordinance is required before the Board will fulfill the

County's existing contractual obligations regarding the PMLR and even suggests,

misleadingly, that the Board will breach the IGA and Supplemental IGA if the

Authorization Measure fails. Modification is necessary.

(e) The second bullet point of the third paragraph of the Summary contains an

acronym — "PMLR" — that is not defined. In the ballot title that the Court

certifies, the acronym either should be defined earlier in the title (perhaps in the

Question) or eliminated.

Page 5 — PETITION TO REVIEW BALLOT TITLE

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REQUEST FOR RELIEF

17.

Petitioner incorporates by reference and realleges paragraphs 1 through 16 above.

18.

Petitioner respectfully requests that the Court conduct its review expeditiously to insure

the timely conduct of the election at which the Authorization Ordinance is to be submitted to the

voters of Clackamas County, as ORS 250.195(3) requires.

19.

Petitioner also respectfully requests that the Court review the entire Ballot Title and the

supporting materials submitted together with this petition, hear arguments if deemed warranted,

and conclude that the Summary of the Ballot Title fails to meet the requirements of ORS

250.035(1)(c) in each of the particulars alleged above.

20.

Petitioner further respectfully requests that the Court certify to the County Clerk the

ballot title set out immediately below or some other ballot title that in the Court's estimation both

corrects the insufficient and/or unfair aspects of the Ballot Title and that meets the requirements

of ORS 250.035:

CAPTION:

Use of Certain County Resources for Portland Milwaukie Light Rail

QUESTION:

Should Clackamas County use certain County resources to meet previous contractual

commitments toward the Portland Milwaukie Light Rail Project?

SUMMARY:

Agreements signed by prior Board of County Commissioners in 2010 and 2012 obligate

the County to use the following County resources toward completion of the Portland

Milwaukie Light Rail Project:

Page 6 — PETITION TO REVIEW BALLOT TITLE

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funding $1,279,740 in improvements to roads and signals near the proposed Park

Avenue Light Rail Station, with the funding sources to be the County Road Fund

and $279,740 in Systems Development Charges to be paid by Tri-County

Metropolitan Transportation District of Oregon ("TriMet");

• allowing TriMet to conduct operations on and maintain portions of county roads

and sidewalks occupied by Portland Milwaukie Light Rail facilities; and

transferring to TriMet two parcels of real property to TriMet: a 2,614 square foot

parcel valued at $20,915, and a 3,485 square foot parcel valued at $1,360.

This Measure seeks voter approval of an ordinance authorizing the Board to use those

County resources to meet the County's previous contractual commitments toward the

Portland Milwaukie Light Rail Project. Approval or rejection of the ordinance will not

affect the County's obligations with respect to those previous contractual commitments.

21.

Petitioner is entitled to an award of reasonable costs and disbursements incurred herein,

and any other relief the Court deems warranted and appropriate.

DATED: March 7, 2013.

etivyelk- Keith M. Garza, OSB No.0940773 Petitioner

Law Office of Keith M. Garza P.O. Box 68106 Oak Grove, Oregon 97268 (503) 344-4766 (503) 344-4767 (facsimile) keithgarza@comcast.net

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Page 7 - PETITION TO REVIEW BALLOT TITLE

BEFORE THE BOARD OF COUNTY COMMISSIONERS OF CLACKAMAS COUNTY, STATE OF OREGON

A Resolution In the Matter of the Referral of a Measure authorizing the use of County Resources for Portland Milwaukie Light Rail

}

Resolution No. 0 4

WHEREAS, Measure 3-401 was passed by the voters of Clackamas County in September, 2012 and is codified in the Clackamas County Code;

WHEREAS, Measure 3-401 requires a public vote before the Board of Commissioners authorizes the use of County resources for Public Rail Transit;

WHEREAS, Clackamas County is a party to agreements that provide for the use of County resources for the Portland Milwaukie Light Rail project;

WHEREAS, the Board of Commissioner intends to allow a public vote on the use of County resources for Portland Milwaukie Light Rail;

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS THAT:

1. Pursuant to its authority under ORS 250.185, the Board of County Commissioners has prepared the ballot title, explanatory statement and measure attached to this resolution, and refers the attached measure to the people of Clackamas County and directs that the matter be placed on the ballot for the May, 21, 2013 election. The measure and the ballot title shall hereby be filed with County Clerk and placed on the ballot.

DATED this 21st day of February, 2013.

CLACKA” UNTY PA RD OF COMMISSIONERS

Chair

Recording Secretary APPENDIX — Page 1 of 5

Attachments

CCP-PW25 (3.194)

?03 -

BALLOT TITLE

Caption Use of Certain County Resources for Portland Milwaukie Light Rail.

Question Should Clackamas County use certain County resources to meet previous contractual commitments toward the Portland Milwaukie Light Rail Project?

Summary In September 2012, County voters approved Measure 3-401, which calls for a public vote before any County resources are used for Public Rail Transit.

In accordance with Measure 3-401, this Measure seeks voter approval of an ordinance authorizing the use of County resources for the Portland Milwaukie Light Rail line. The County is asking for voter approval of these items to comply with the terms of Agreements signed by prior Boards of County Commissioners in 2010 and 2012.

If voters approve the Measure:

• The County will fund $1,279,740 in improvements to roads and signals near the proposed Park Avenue Light Rail Station. The funding sources will be the County Road Fund, along with $279,740 in Systems Development Charges to be paid by TriMet.

• The County will enter into an agreement allowing TriMet to control portions of county roads and sidewalks occupied by PMLR rail facilities.

• The County will transfer two small parcels to TriMet: A 2,614 square foot parcel valued at $20,915, and a 3,485 square foot parcel valued at $1,360.

Explanatory Statement In September, 2012 County voters approved Measure 3-401, which requires voter approval before the Board of Commissioners authorizes the use of any County resources for public rail transit.

TriMet is constructing the PMLR line, which will run from Downtown Portland to a proposed station near the intersection of Park Avenue and McLoughlin Boulevard. The PMLR line will run along an alignment selected by area governments as the Locally Preferred Alternative in 2008.

In February, 2010, the Board of County Commissioners (Board) approved an Agreement with TriMet for the PMLR project. Under the Agreement, the County agreed to provide $25 million toward the project, and also agreed to negotiate in

APPENDIX — Page 2 of 5

2.. i 3 - 0,)

good faith for any further agreements that might be necessary to complete the project. The Clackamas County Development Agency and the North Clackamas Parks and Recreation District were also parties to the agreement.

In August of 2012, the Board approved a Supplemental Agreement which reduced the County's cash contribution by $2.4 million dollars. As part of the agreement, the County agreed to fund road and signalization improvements to roads in and around the intersection of Park Avenue and Oatheld Road. The County also agreed to transfer to TriMet a small (2,614 square foot) parcel of property for which the County will receive a credit of $20,915.

In addition, this measure addresses a small, landlocked parcel (3485 square feet) that would be conveyed to TriMet for construction of the Trolley Trail and retaining walls. TriMet values the property at approximately $1,360.

Approval of this measure would constitute approval by the voters of an authorizing ordinance authorizing the following four items related to the Portland/Milwaukie Light Rail line:

• Execution of a funding agreement funding $1,279,740 in road and signalization improvements in the vicinity of Park Avenue, Oaffield Road and McLoughlin Boulevard. TriMet will pay $279,740 of that amount in Systems Development Charges, while the remainder will come from the County Road fund. All of these improvements were previously set forth in the County Transportation System Plan.

• Transfer of a property described as Tax Lots 11 E36CD03300 and 11 E36CD03400, approximately 2,614 square feet in size, for which the County will be credited $20,915.

• Transfer of a parcel of approximately 3,485 square feet in size, for the sum of $1,360.

• Execution,of a Continuing Control Agreement providing that TriMet will control any portions of county-owned streets and sidewalks that will be occupied by light rail tracks or stations. This agreement is required by the Federal Transit Administration.

MAPS OF THE SUBJECT PROPERTIES, AND COPIES OF THE AGREEMENTS DISCUSSED ABOVE ARE AVAILABLE AT WWW.CLACKAMAS.US.

The actions authorized by this measure would be one-time authorizations that end with the completion of the project. The cost of staff time for completion of these items would not be likely to exceed $23,000.

APPENDIX — Page 3 of 5

(_ 1,jh)- U

Rejection of this Measure would mean that the Board of Commissioners will not have obtained approval of an authorizing ordinance as required by Measure 3-401.

Information furnished by Dan Chandler, Strategic Policy Administrator, Clackamas County.

APPENDIX — Page 4 of 5

2Ci - 0 4

Ordinance The People of Clackamas County ordain as follows:

A. The Board of Clackamas County Commissioners is authorized to use the following County Resources for the Portland Milwaukie Light Rail Line:

• Execution of an agreement with TriMet funding $1,279,740 in road and signalization improvements in the vicinity of Park Avenue, Oatfield Road and McLoughlin Boulevard.

• Transfer to TriMet of a property described as Tax Lots 11 E36CD03300 and 11 E36CD03400, approximately 2,614 square feet in size, for which the County will be credited $20,915.

• Transfer to TriMet of a parcel of approximately 3,485 square feet in size, for the sum of $1,360.

• Execution of a Continuing Control Agreement providing that TriMet will control any portions of county-owned streets and sidewalks that will be occupied by light rail tracks or stations.

B. This measure shall become immediately effective upon passage. If any provision of this measure is barred from operation by superior law, the other provisions shall remain unaffected.

APPENDIX — Page 5 of 5

CERTIFICATE OF SERVICE

I hereby certify that I caused a true copy of the Petition to Review Ballot Title filed in this

matter to be served upon the following by hand delivery at the address shown below on the 7th

day of March 2013:

Mr. Stephen L. Madkour County Counsel for Clackamas County 2051 Kaen Road Oregon City, Oregon 97045

DATED: March 7, 2013.

Keith M. Garza, OSB No. 94 773 Petitioner

Law Office of Keith M. Garza P.O. Box 68106 Oak Grove, Oregon 97268 503-344-4766 503-344-4767 (facsimile) keithgarza@comcast.net

CERTIFICATE OF SERVICE