*1
rе-argued
Argued
1,
15, 1972,
March
November
affirmed March
Respondents,
BOARD
FASANO
OF
et
al,
OF
COUNTY COMMISSIONERS
COUNTY
WASHINGTON
et al,
Petitioners.
Edward J. Counsel, argued reargued peti- Hillsboro, *3 cause for Bradley him on the tioners. With briefs were William County Bradley, Counsel, Duncan, Assistant Carrell F. Bailey, Bradley, and Schwenn, Joe D. Batchelor & Bailey, Hillsboro. argued reargued Fasano, and Portland,
Louis J. respondents. him on the cause With the briefs were Stiner, Portland. Lovett & Veatch, argued Ashmanskas, Beaverton, Donald C. reargument. curiae on for amici cause With him on Eugene, Long, M. Mattis, the briefs were James Merle Albany, Springfield, Jr., Edward Harms, C. on League Oregon of Cities. behalf of the Also on the Ertsgaard, Roy R. Salem, Duane briefs were E. Ad Eugene, Mackey, Crist, Linn, Richard West Paul kins, Gary Rueter, McMinnville, behalf Portland, of
57-7 Oregon Frank L. Counties; and of the Association Chapter, Oregon of on behalf Whitaker, Portland, Planners. Institute of American J. HOWELL, county, Washington plaintiffs, homeowners
The change unsuccessfully opposed a zone before Washington County of of Commissioners Board applied of County. for and received a writ Plaintiffs allowing the commissioners the action of the review of plaintiffs, change. found in favor of trial court The change, and the zone reversed commis- disallowed Appeals affirmed, order. The of 7 Or sioners’ Court (1971), granted App P2d and this court 693 176, review. County Board of
The defendants are Com- Development Company. A.G.S., missioners A.G.S. (Single had been 32 acres which zoned R-7 the owner Residentiаl), change Family applied for a to P-R zone (Planned Residential), which allows for the construc- park. mobile home The failed tion of majority Planning receive a vote Commission. County approved Board Commissioners The among other found, matters, for “increased densities and different allows housing types the needs of to meet urbanization over existing zoning.” by allowed relying interpretation on its court, trial County Washington, 161, Or 458 P2d Roseta (1969), reversed order of the ALR3d .the because the commissioners had not commissioners *4 neighborhood any in the character of the shown rezoning. justify Ap- the Court would which peals affirmed for the same reason, but added the ground additional the defendants failed show that comprehensive that the ivas consistent with plan Washington county. for
According comprehensive plan briefs, to the development Washington county adopted for ivas county in 1959 and included classifications in the for neighborhood residential, commercial, retail commer- general park light cial, commercial, in- industrial dustry, general heavy industry, agricultural areas. which, question, designated
The land in was “resi by comprehensive plan, dential” R-7, was zoned Single Family Eesidential.
Subsequent comprehensive plan the time the Washington county adopted, established a Planned (P-R) zoning Eesidential classification in 1963. The adopted by pro P-E classification was ordinancе and planned development vided a unit open space be could established and should include for access, and utilities, should not less recreation; than adjacent size; acres in and should be located adopted by P-E a residential zone. The zone type “floating known is of zone,” ordinance so- the ordinance called because creates zone classifi placed authorized for future but cation use not map until its use location is governing body. approved The E-7 classifica April acres tion the 32 continued until 1970 when changed permit classification was to P-E park to construct A.G.S. the mobile defendant home involved. on the acres argue (1)
The defendants action of the approving pre- commissioners *5 plaintiffs requiring sumptively show that to valid, approving arbitrarily in the zone commissioners acted change necessary of change; (2) to show a it was not a zоne could in area before conditions (3) accomplished; from P-R R-7 to county comprehen- Washington in with accordance plan. sive granted to in this case consider review
We county questions—by does a commis- what standards authority zoning matters; in who has its sion exercise meeting request those standards when a of burden scope made; of is the of zone what of such actions? court review scope
Any meaningful
proper
decision as tо the
zoning
of
review of a
decision must start witl^
of the nature of that
a characterization
decision. The-'
jurisdictions
zoning
majority
state that a
of
ordinance]
thereby
legislative
presump-
and is
entitled
act
to
validity.
court made such
This
tive
characterization/
zoning
County Washington,
v.
decisions
Smith
(1965):
grant permits, special exceptions, make or de particular legis cide cases. are Such activities not judicial quasi-judicial, administrative, lative but or place legis in character. To them in the hands of judicially bodies, lative whose acts such are not Skokie, 415, 529, Village Ill2d of NE2d 26 186 (Klingbiel,J., (1962) specially ncurring). co open completely arbitrary reviewable government." is door to to Ward Supreme Washington, reviewing of
The Court in recently rezoning a decision, stated: descriptive may “Whatever characterization to otherwise attached or role function of zоning planning procedures, e.g., commission in advisory, recommendatory, investigatory, adminis * * * legislative, or it is manifest trative that it is ** * public agency, principle [sic] a a and statu duty tory public hearings of which is to conduct in planning specified matters, enter find ings disputed on the of fact—often basis of facts— assigned with make recommendations reasons Certainly, hearing its role as a thereto. and fact- finding planning tribunal, commission’s func nearty partakes than not mоre of tion of the nature quasi-judicial administrative, proceeding, an ** County, Chrobuck v. Snohomish 78 Wash (1971). 489, P2d 495-96 2d laying general policies down Ordinances without usually property specific piece an regard are of to a subject authority, legislative limited to are exercise of upon may only constitutional be attacked review, authority. arbitrary grounds of On an abuse for permissible whether the determination other a hand, changed specific piece property of should be use of authority judicial pro its usually of is an exercise subject altogether priety test. An different an authority legislative of of an exercise illustration Washington passage ordinance provided County which in 1963 Commission planned classification to be formation adjacent any An residential zone. in or located authority is the commis exercise in this matter sioners’ determination Development classification A.G.S. Cоm piece property. pany’s specific The distinction is Zoning follows, Comment, Amendments— stated, as Quasi-Judicial or Action, Product Judicial (1972): L Ohio St J 130 * “* # Basically, this test involves the deter produces general action of whether rule
mination applicable open policy an or which class of or interest, situations, individuals, whether it *7 general application policy the rule or entails to specific or individuals, interests, situations. If the legis is satisfied, determination is former there if the latter determination action; lative is satisfied, judicial.” 33 St L Ohio J at action 137. the reject proposition the review of We county determination to commissioners’ the the .property question zoning of the limited arbitrary the whether determination to a capricious. and review, a standard of it
In order establish 582
necessary relating principles delineate certain basic regulation. to land use county municipal
The or basic instrument рlan.” planning “comprehensive land use is the Haar, Comprehensive Plan, In Accordance 6S iviih Ilarv (1955); Yokley, Zoning L Rev 1154 Law and Practice, (19G5); Rathkopf, Zoning § 3-2 The Law of Plan and ning, (3d 1969). plan § 9-1 ed The has been described general plan as a to control and direct the use and development property municipality. in a Nowicki v. Planning Zoning Board, 148 Conn A2d (1961). 386, 389 Oregon county planning
In commission is required by comprehensive adopt 215.050 to ORS plan county. for the use somе or all of the land 215.110(1), comprehensive plan Under ORS after the adopted, planning has been commission recom governing body county mends the ordi necessary “carry comprehensive nances out” the plan. purpose zoning The of the ordinances, both under general our regulation, statute and the law of land use “carry implement comprehensive plan. is to out” Zoning, (1968). Anderson, § American Law of 1.12 Although analytical we are aware distinсtion planning, zoning between isit clear that under our plan adopted by planning statutes the commission zoning ordinances gov enacted erning body closely are both related; are intended to single integrated procedure parts of a for land use policy plan embodies control. determinations and principles; guiding provide ordinances giving effect principles. detailed means to those county planning states 215.050 ORS commissions may adopt from time “shall to time revise a com- *8 prehensive plan.” hearing In a Commit- the Senate proponents tee on Government, Local of OES purpose 215.050 described its as follows: «i? # *= jnte:nt hgj-g js require a basic geared population, document, use, land into and any- forecasts, economic which should be the basis of regulations adopted by or other to be * * *” ‹ county. provides: In addition, ORS 215.055 (1) plan. plan “215.055 Standards for legislation regulations all authorizеd OES designed promote 215.010 to 215.233shall be public safety general health, welfare and shall following among be based considerations, others: The various characteristics the various county, suitability areas in the of the areas for improvements, land uses and the land improvements uses and in the areas, trends in land improvement, density development, property enterprises values, the needs of economic in the development future areas, nеeded access to particular sites in the areas, natural resources of prospective development needs public thereof, and the need for healthful, safe, surroundings aesthetic and conditions.” legislature We believe the state has condi county’s power upon tioned the prerequisite to zone zoning attempt general that the further the welfare community through of pros consciousness, in poctive sense, the faсtors mentioned above. In other'\ except opinion, words, as noted later in this it must proved that the is in conformance with the comprehensive plan* proving
In that the is in conformance ‹ Hearing on Senate Bill 129 before the Senate Committee on Legislative Government, February 52nd Assembly, Local 14, 1963. proof, comprehensive plan in this case,
with the *9 public (1) need there is a show a should minimum, (2) change question, need and that of the kind in for a changing by of the сlassification served will be best question property piece as com- in the property. pared other available with the and Court the trial court In the instant case prior interpreted of this court Appeals decisions change county to show a requiring commissions the as neighborhood in the immediate within of conditions sought change the was since enactment the which compre- plan, comprehensive in the or a mistake the prеcedent to plan the zone as a condition hensive change. County, Washington supra, land the v.
In Smith designated under the com question was in county plan, commissioners enacted prehensive and the changing amendatory the classification ordinance an change manufacturing. held the This court that con to spot and was invalid. We stated: stituted * * “* [zoning adopted, scheme] is Once only changes made when such should be in it objectives the over-all сhanges with are consistent changes keeping in with in plan' the of the neighborhood the area covered character of* * * added) (Emphasis thereby. Or at 384. County, Washington supra, the land Roseta In as residential under the classified question was originally plan had been zoned as comprehensive Family commis- Single Residential. R-10, change Duplex A-l, granted zone Residen- sioners had not commissioners sustained the that heldWe tial. proving was that consistent the burden plan comprehensive and reversed the order with change. regard allowing In defendants’ the zone argument with the that was consistent plan designated comprehensive plan because single term included both areas “residential” as dwellings duplex family we stated: residences, *“* * ordinance established a However, types of use distinction between classi- two fying another area as A-l. one B-10 and area pur- It be assumed that the Board had somе must making pose distinction between two these prove classifications. It was for defendant this was distinction not valid or * * * parcel in the character not inconsistent use comprehensive plan.” with 169. Or at *10 distinguished could
The instant case be from Roseta floating that the basis we are involved with a zone which was not before the court in Roseta. › interpreted should not Roseta be
However,
as
establishing
change
physical
a rule
of
that
circum
neighborhood
only
stances within the rezoned
is the
justification
rezoning.
county governing body
for
The
by
is directed
215.055 to consider a
ORS
of
number
enacting zoning
other
when
ordinances,
factors
and the
purport
list there does not
to be exclusive. The im
portant
recognized,
compliance
issues, as Roseta
are
›
Maryland,
exponent
change
in
the
Even
chief
of the
or
rule,
required
mistake
ing
courts have not
the
that
there be a show
changed
original zoning
of
conditiоns
mistake in the
as a
granting
precedent
change
floating
condition
a zone
when a
Bigenho Montgomery County Council,
zone is involved.
v.
Md
248
(1968); Bayer
Siskind,
116,
386,
A2d
237
53
v.
Md
247
A2d
230
County
(1967);
County
316
Board of
of
Tipton,
Com’rs
Howard
v.
Bujno
(1966);
77,
Montgomery County
222
244 Md
Council,
A2d 701
v.
(1966);
110,
Md
220 A2d
243
126
Knudsen v. Mont
County
gomery
436,
(1966);
Council, 241 Md
with the directive and of the consideration light proposed comprehensive plan. of in action of the commission in this Because the judicial authority, the instance an of burden is exercise proof placed, pro in should as is usual be change. ceedings, upon seeking The more the one change, greater drastic the will be burden of showing compre is in with that conformance it plan implemented by that ordinance, hensive as public ques is for the in there need kind proposal that met tion, and the need best degree under As the increases, consideration. showing impact potentiаl upon that the burden question carefully the area in considered and weighed pre will If areas also increase. other have viously designated type been for why necessary development, shown must be it is it previously contemplated not introduce into an area it why property owners there should bear the departure. fi burden fi For designated by plan plan gener example, if an area ally development, may appropriatе for residential also high-density development that residential within indicate some specifying anticipated, without be the exact location the area is to at which plan comprehensive development place. The that take goal development might provide that its residential tois healthful, pleasant areas are and safe assure places policies plan might following also list the which to live. among pursued achieving others, which, are goal: *11 High-density areas should be located close to 1. area. urban core the neighborhoods protected any should be from Residential land
2. involving activity noise, pol- an excessive level use traffic volume. or lution family multiple trip-generating High ready units should have 3. or collector streets. arterial access to housing living types pro- variety should areas be A4. Although that we have said in Roseta changes may justified showing bе without a a original plan changes mistake in or of the ordinance, physical any in the characteristics of an affected area, present of these in factors which are case importance would, of be relevant. Their would course, depend upon precise the nature of the under consideration. com-)
By treating authority by the exercise of in mission this case exercise of rather legislative authority enlarging than of аnd thus scope appeal, by placing on review the burden proof upon seeking// of the above level of the one change, may lay open by we the court to criticism legal planning scholars who think it desirable that ability adjust authorities be vested with the more freely changed having weighed conditions. Hoivever, dangers mailing desirable more difficult appropriate special general
vided to the needs of the groups they are to serve. development 5. Residential urban densities should be with- planned sewer and water service areas and where other adequately provided. utilities can be hypothetical property originally plan, Under such a zoned for single family dwellings might duplexes, later be rezoned for garden apartments, high-rise apartment buildings. or for Each of changes plan. these though could be consistent shown be with the Al- showing require in addition we would that body governing found a bona fide need for a zone in order high-density development to accommodate new which at least by disruption challengers, require- shown balanced be met in most instances ment would record which disclosed governing body had considered the facts relevant to this judgment good question However, its exercised faith. these changes, all could be shown to be consistent plan, while with the differing expected impacts surrounding to have could area, depending potential on the nature of that As area. im- question increases, pact necessity area in so will on the justification. show a *12 against pressures dangers of almost irresistible by private interests on that asserted economic can be dangers government, that the latter local we believe be feared. are more to necessarily general, have said above
What we adopt approach absolute stand we contains no as the that believe, however, ards or mechanical tests. We meaningful guidance adequate provide for local it is to zoning governments making decisions and for trial upon future cases to review them. With courts called appropriate add some brief remarks to it mind, hearing procedure. questions Parties at on body county governing are entitled to an before present opportunity opportunity to an heard, to imрartial which is to a tribunal evidence, and rebut having pre-hearing had no or ex matter—i.e., in the concerning question parte issue—and contacts adequate findings executed. made and Com to record Zoning Product Amendments—The Judicial ment, L Action, Ohio St J 130-143 or Quasi-Judicial (1972). apply the standards we we have
When present adopted case, we find the burden to the commission. The record before not sustained to ascertain whether there insufficient us is now before only justifiable for the decision. The evi basis was a report record, that of staff of the dence Planning Department, County too Washington con support change. superficial clusory merely states: It requested use finds does staff “The designation of the Plan to the conform proposed Development. Tt further finds that the County the urbanization and the reflects use provide
necessity increased densities and differ- types housing ent meet the nеeds urbaniza- existing zoning. tion over that allowed [**] [*] generalizations any
Such without conclusions, they statement of the facts which are are in- based, *13 justify change por- sufficient of use. no Moreover, comprehensive plan Washington County tions of the improper are before us, and we feel it would be judicial plan us to take notice of the without at least specifics by some reference to its counsel. adequate showing
As there has not been an plan, was in аccord with the or that the given proper factors listed ORS 215.055were con- judgment is sideration, affirmed. specially concurring.
BRYSON, J., exemplify The basic facts in this pro- case uncertainty hibitive cost and extended ato homeowner governmental body when a decides to or modify comprehensive plan ordinance or affecting property. such owner’s real controversy proceeded through
This has the fol- lowing steps: respondent opposed
1. The the zone before Washington County Planning Department Planning Commission. County
2. The hearing, Commission, after a al- change. lowed the (disallowed
3. trial The court reversed change). Appeals
4. The Court affirmed the trial court. reargument 5. We ordered and additional briefs. 6. This court affirmed. principal respondent case, in this Fasano,
happens attorney his residence is law, be an park petitioner proposed near the mobile home average enter- No homeowner or small business A.G.S. prise process as can such described аfford a judicial system cope with or endure above nor can a achieving justice. process in The number of such a ascending. such controversies is majority opinion, in which I In this case concur, adopts some sound rules to enable munici- governing pal planning bodies, commissions and finality in well as trial to reach How- courts, decision.. panacea procedure ever, the and it still burden- no some. legislative solely within the domain of the
It government simplified to devise a new branch expedite finality statutory procedure decision.