*1 31, December 6, and remanded Argued as modified affirmed June January 29, rehearing petition denied Respondents, OF v. CITY FRANKLAND al, et LAKE Petitioners. OSWEGO al, et
Also on briefs were P. Patric Doherty, McMurry, Sherry J. Nichols, & Portland, Oswego petitioners of Lake and John C. Fergusen, H. MacLean, Cook, J. William Robert *3 Mary and Dent, Knowles, William Goodall, Charles Needham;
Kenneth and Baines, Wheelock, Richardson, W. Murphy, petitioner Niehaus, Baines for & Portland, Dave Christensen, Inc.; and Krieger,
David and Black, J. Kendall, Tremaine, Higgins, petitioner Security Boothe for Portland, & Oregon. Bank of Templeton, argued Portland,
David P. the cause respondents. him on the briefs With were Charles Glasgow, Dusenbery, Robert E. and Robinowitz, Templeton, Bischoff Martin, & Portland. Whitaker, & filed Portland,
Whitaker an amicus on curiae behalf brief Homebuilders Associa- Metropolitan tion of Portland. McAllister, and Justice, O’Connell, Chief
Before Tongue Justices. Howell, Holman, Denecke, HOWELL, J. declaratory a action for this
Plaintiffs
filed
alternatively,
or,
an injunction
judgment
seeking
for the con-
remedies
damages
award of monetary
the defendant
building
of an
struction
apartment
case,
At the close of
Christensen,
plaintiffs’
Dave
Inc.
to dismiss.
motion
court allowed defendants’
trial
reversed and remanded
On
Court Appeals
appeal,
lenge validity erected unit which was a building pursuant planned ordinance enacted of Lake Plaintiffs contend that construction was Oswego. unit accomplished according planned devel- as submitted to the and that opment plan City, they are entitled have the removed apartment building for the damages or be awarded in value depreciation of their from such resulting construction. property of the Court of adopt portion opinion
We states the background Appeals the facts of this suit. leading filing up various entities in which In 1967 Carl Halvorson had dominant interest acquired right purchase property designated (B) the accom- (C) *4 Kerr panying map (hereinafter property). Kerr around
segment property which this suit is in Multnomah and County revolves lies north of the county and line is east-west Clackamas-Multnomah by designated (B) map. separated It is a dotted on property, line from the marked balance the Kerr (C) accompanying map. land on the This was un- developed. property strip Plaintiffs on live own immediately extending (B), land west of southward Stephenson. designated (herein- (A) Street and Arrowood). substantially after called Arrowood was family developed single Immediately v/ith residences. (B) is other involved land, here, east which also developed single family with residences. litigation, which led this events Prior lay all of the land mentioned above which in Mult- County comprehensive had zoned under nomah been a single family plan upon Ii-20— residential — only occupied could if the lot residences be built square feet or 20,000 area of more. Arrowood had years been annexed of Portland several by single earlier and remained zoned Portland for family accompanying map residences. The illustrates property that Arrowood is surrounded Kerr northerly except tip. Conversely, strip for its in-controversy, (B), part is surrounded land already comprehensively of land which had been zoned single family except southerly tip. for its residential, acquired right pur- Halvorson
"When Carl property upon chase the Kerr he embarked plan developing approximately 600 acres into what Development” (hereinafter termed a “Planned Unit PUD). This called includes a town center, park, eqiiestrian commercial ¿rea, other recrea- garden apartments, areas for facilities, tional town single family duplexes, dwellings, etc..' houses, Defend- Corporation, ant' Mountain.Park of.'which Mr. Halvor- *5 son was the dominant took title the land and owner, began development. In order to obtain a water supply system, city as well as sewer other serv- negotiations were carried on with ices, various munici- pal corporаtions. Mountain Park concluded opportunity development conforming best to its own plans lay Oswego (hereinafter with Lake City, City). comprehensively called which was zoned passed enabling under a code, ordinance permitting planned unit in new areas. *6 Negotiations ripened City, into contract a between Sylvania Properties, Mountain and Park, another of by the entities dominated Mr. Halvorson. The contract
contemplated City phases. would annex the in PUD A of section the contract dealt with annexation and development. City agreed accept Its tenor is that by the PUD submitted Mountain Park under its planned (except unit ordinance changes agreed upon by City or amendments the of Oswego Planning Lake Commission and Mountain Park) in return for annexation. contemplated by
As the contract, Mountain Park proposed annexation of II Phases I, III of City annexed these PUD, it areas; later, annexed consisting Phase IV of 55 acres which included strip (B). changed controversial it Thereafter, among things, to allow, Phase IV other building apartments southerly part in the strip (B) plan in accordance with the PUD submitted Mountain Park.
Shortly rezoning, after the Mountain Park deeded southerly part (B), acres 3.5 of Phase IV, (hereinafter defendant Dave Christensen, Lnc. called Christensen). The latter obtained a commitment for Oregon Security Bank financing defendant (pursuant a con- Park to Mountain and submitted building apartment suggested tract) of an sketches proposed construct buildings which Christensen pro- rejected several Park After Mountain thereon. plan for the construc- posals, approved effected it subject building, apartment is the of the tion litigation. this testified landowners,
Plaintiffs, adjoining real they bulk, size, time about the first learned for proposed when Christen and nature stripped area of trees arrived and sen’s bulldozers high put vegetation fill feet in a and other (B). They protested strip the south end toward City submitting petition on 21, October Council Planning referred the matter to 1969. The Council proposеd struc whether determine Commission to plan. the final with On No ture was conformance Planning against ruled Commission vember 4,1969, building City temporary permit. plaintiffs. issued having previously after 20, on November Thereafter, writing of such intention, defendants warned the brought plaintiffs this suit. On November *7 building permit. ‹ final issued a Appeals portion held that the of The Court ‹ During pendency this the trial suit court issued an the annexation of Phase declared IV invalid interim order which City jurisdiction that acted without declared and therefore City Subsequently, area. reannexed and it rezoned when giving These actions were taken after Phase IV. rezoned hearing requisite statute, demanded under the notice and but we hearings. transpired at these of what no record have apparently approval merely pro second this Because forma concerning procedural remedy defect annexation of the to procedures, area, provals requirements, ap- be on the focus shall and our part original proceеding. given in 1969 as
460 annexing 'Ordinance included
PUD Phase IV which adjacent plaintiffs’ property 3.5 acres was invalid given because insufficient no consideration was plaintiffs’ property single family and its use. The court quoted County Washington, 161, Roseta v. 254 Or County (1969), 458P2d ALR3d 364 405, 40 v. Smith Washington, (1965), 241 P2d 545 380, Or change zoning effect that must first consider any changes neighborhood whether occurred have in changes original whether are consistent with the comprehensive plan. The trial on the other court, hand, City arbitrarily used the test of whether the acted enacting the PUD ordinance.
Subsequent to the trial of the instant and the case, decisions in this court Smith, Roseta decided Fa- Washington sano v. Comm., Co. Or 507 P2d (1973). proof we stated that the There, burden of upon seeking change is the one and that it is necessary gov- that a record be made before the local erning body change when a is under consideration.
Because the case at bar was tried before our de- any cision in we do Fasano, not have the benefit of record before the Council and do not know what enacting factors were considered the Council annexing PUD ordinance Phase IV. necessary, attempt however,
It we given whether sufficient consideration was decide annexing plaintiffs’ properties Phase IV because we plan that the final was violated find the construction question. house in planned this case involves a Because develop- unit concept ment as a generally device, we shall first
461 it differentiate and its cbaracteristics describe zoning. concepts of more traditional other UNIT DEVELOPMENT THE PLANNED CONCEPT development was concept planned unit aof remedy the pnblic to by planners officials and initiated practice. › theory zoning and in defects traditional concept, fi only recent it has been new "While years option zoning made this have that authorities developers providing practicable planners to and development. fl allowing enabling such ordinances › zoning concept means to the of as a Prior advent by public offiсials, private use of land restrict and control upon improvements use and to was entitled to make landowner the twentieth cen restriction. With arrival of land without tury, however, municipal governments became increas state and planning ingly some and to ensure aware of the need for controls blight decay growth which would tend ameliorate Anderson, at time. 1 which infected urban communities Zoning legal (1968). The Law of 1.02 framework American § proposed this took was and utilized effectuate awareness regulations police power under the form of districts bulk, set-backs, height, buildings, and use of the use of of population. density Bassett, Zoning (1936). land, enabling zoning required Further, most state acts for these throughout regulations buildings be uniform the district con supra. Bassett, therein. structed regulations The unfortunate and unintended effect these developments cutter” to create “cookie which all houses resembled one another in a residential district architectural yard “incompatible” style, set-backs, Also, sizes.- no uses such dwellings multi-family yrere centers or as commercial allowed in they prior zoning. district unless had esdsted a residential Finally, pro- forces, was left to market because no preservation open space public for the made vision could Development: Krasnowiecki, Challenge Planned Unit areas. See A Theory Control, and Practice of Land Use to Established 114 Pa (1965). L Rev 47 fi Regional Survey Environs, York and New Its See Law Planning Areas, II, (1929). Part 272-73 Unbuilt fl Approaches Land, New Urban See Residential' Land De (Tech velopment 40,1961). Bull objectives planned developments unit are:
(1) flexibility; (2) provide to achieve a more desir to living possible through able than would environment be application requirements; the strict ordinance (3) encourage developers to ap to ause more creative proach development (4) encourage in their to land; a open more efficient and more desirable use of and land; (5) encourage variety physical tо development in the city. (cid:176) pattern of the agree planned development
We that a unit designed is well conceived and well will achieve these objectives. primary However, while the benefits of a flexibility design improved PUD ordinance are and development and objectives use of land areas, these can only planning authority be secured if the retains its by, overseeing control at a approving minimum, and general development plans developer. of a See Kras- Development: Challenge nowiecM, Planned Unit A Theory Established and Practice of Land Use Control, (1965); 114 Pa L Rev 47, 79-88 Mandelker, Reflections System Planning on the American Controls: A Re- sponse to Professor 114 Pa L KrasnowiecH, Rev 98, 99, (1965). planned 101-104 unit concept necessarily great allows deal of discretion in the planning implementing hands authorities a PUD properly that discretion ordinance, but is in their hands developers. Obviously, and those of the in order guarantee designed a well planned conceived well development, planning unit authorities must have necessary plans and information developer from the making approved, before a decision. Once developer plans any should be bound changes unless are (cid:176) Id; Symposium: see also Planned Unit Development, 114 Pa Cheney (1965); Village L Rev 3-170 v. 2 Hope, at New Inc., 429 626, (1968). Pa A2d planning accordance approved authorities ordinance. with the PUD TAKE ORDINANCE P.U.D.
THE OSWEGO procedure fol- delineates The ordinance planned development: unit for a lowed developer required Plan- to submit showing preliminary plan ning inter alia Commission a types coverage property, building real open spaces, and proposed land use and densities, pedestrian plans. After submis- traffic vehicular plan, Planning preliminary Direc- sion Planning required Commission tor is submit to the showing existing zoning subject report staff “adjoining properties property within and the or with- *10 City, plus of the comments on the out the boundaries” proposed PUD. Planning receiving report, Director’s
After Planning required public is to hold a Commission hearing, hearing application. After the Plan- on the may approve principle pre- ning Commission reject modify liminary plan, or it. Within six months preliminary plan, developer approval of the development plan showing required to a final file is drainage, traffic contours and use, circulation, land landscaping. of the Section 53.330 PUD ordinance and plan, part requires, of the final the submission also buildings proposed sketches of architectural That area. section PUD ordinance be built important to this case states: planned-unit developments In “53.330. con- twenty-five taining developer less acres the than preliminary architectural submit sketches de- shall buildings types approximate and picting the their depict on lots. sketches also location 464‘
general height, type bulk and and construction proximity of structures on lots. planned-unit developments containing “In more , twenty-five developer than acres the shall submit required architectural sketches as above for each phase development containing twenty- than less phase begins five acres construction. the time before such actual planned-unit development For a phase twenty-five thereof in excess of acres the developer shall submit architectural de- sketches picting multi-family, types buildings (single family, duplex, etc.) prospec- commercial, and their development showing tive locations in the their general height relationship and bulk in to the other improvements upon adja- in the and cent land.” applicant
At the time the submits Ms final devel- opment plan, required application he is to submit an change. given, for a zone after Thereafter, notice is public meeting Planning is held and the Commission plan application considers final zone change.
Finally, City after Council, notice, holds a public hearing plan change, on the final and zone approves plan change, if the Council an ordi- adоpted. developer nance effect is to that is then required City file with the Recorder and the Planning approved development Director the final plan.
DEFENDANTS’ VIOLATIONS THE OF
P.H.D. ORDINANCE *11 53.330 of requires, Section the PUD ordinance developer inter a alia, submit arcMtectural sketches showing type buildings to be constructed, their prospective development, locations in the and their height general and bulk characteristics. developer requirement that
Implicit this that so sketches these with accordance build in con as a device to City’s approval sketches acts of the comply developer fails to development. if a Thus, trol non he is in submitted, he has sketches with the plan ordi and compliance the final with plan. implement passed final was nance which totality the information sub- In this case the compliance apparently at directed mitted, apartment sketches of was two 53.330, with Section map showing generalized development buildings, a “garden apart- question was tо contain 246 the area following a brochure which contained ments,” relating garden apartments: statement garden apartments contains 246 “Phase four on containing just McNary 12.3 acres above sites two design Parkway. of these units will be similar vary one. unit will in size in Phase to those square average square feet feet with 900 rent per approximately month.” $225.00 Planning submitted to the The sketches Commis Council, Exhibits no and the bear sion generally specifically, either resemblance, budding constructed. Exhibit 5 is a sketch three-story apartment showing portion budding of a portion budding right, of a similar smaller on on the two-story apartment in the center a build left, consisting apartments ing three on each floor, having separated open space buddings been and a apartment budding appar pool. 3 shows an Exhibit high ently at one end which stories five resembles a apartments being with remainder sub tower, elongated, stantially only and more with lower two levels. *13 actually apartment monolithic, a constructed is
The rectangular building long large, gray 375 feet end and four stories fеet with five stories at one wide, at the other. agreed apartment witnesses con- departure from the sketches
structed was a submitted. Oswego Planning The Chairman of the Lake Com- hearing while he did vote at the mission, Com- mission in testified that the November, presented of its did not conform the sketches because height, and bulk. size, difference Oswego City Planning Lake Director testified building “departure” drawings from the height that in relation its submitted, but bulk there was “room for definition.” representative of
Mr. Mountain Nelson, Park Corp., Planning that the admitted exhibits shown the portrayal” were not a “direct Commission of “what the *14 actual turned structure out be.” map depicts what Phase IV will con- only “garden apartments” tain shows will be apartment question built in area where in any height built, but does not show to be or bulk characteristics. entirely
The record is clear to whether any garden apartments had been constructed in Phase although garden had I, brochure described the apartments Phase IV to similar to those Phase I. is clear from the However, it evidence nothing resembling constructed was built else- development. where brochure states that 246 garden apartments planned are on two sites in 12.3 *15 é70 Eighty apartments
acres of Phase these IV. are budding information located in the constructed. No given apartments to whether the will as other high, building consist of 10 stories build- one several they ings of or where will stories, two be located in uncertainty area. same still existed at time present apartment of trial. who built the Christensen, building and intended to construct at least one more, height that he did not know testified what of the building apartment be, second would and that he had merely “squared off area similar to the first build- ing” preliminary step as a to construction of that apartment. City that record also discloses after the Coun- approved plans,
cil had final enacted the ordi- PUD change, and allowed the zone nance, Mountain Park and negotiating still Christensen were between themselves building type apartment be constructed. conclude thе defendants "We Mountain Park failed build the and Christensen in ac plan pursuant with the final cordance submitted ordinance. – 53.330 Section requirement in a PUD ordinance A devel- showing plans oper particularity submit final with some planned various features involved his unit de- velopment, and that thereafter he is bound to these purposes. plans, at least two serves desirable First, it gives planning authorities and the Council full knowledge they approve what are asked to before grant change. Secondly, gives they any zone it oppo- – Our examining complete conclusion the record is in following agreement judge: with statement of the trial “No really body going put ever knew what Mr. Christensen was up, they?” did *16 project. serves It tbe complete about information nent allow a ordinance to purpose for an no worthwhile develop- planned proposed unit hearing public on a full change not available. are if the facts zone and ment opponents nor nothing the Neither to debate. There is govern- and the issues, the proponents would know the making charged would be a decision ing body with holding, of we are aware doing In so in a vacuum. so plan- flexibility planning, flexible but need the ning justify delegation of the view, in our not, does developer, private does it nor planning to a function regard plans developer to as to without build allow a planning appropriate authorities. presented the to Park and the defendants Mountain case In this presented and and used Exhibits 3 the Christensen descrip- apartment” “garden definitional and term comply term with Section'53.330. The to vehicles tive any meaning apartment” “garden definitive is without presented definitions at trial, various the as shown develop- tool for used as a control cannot be and thus only are 5, then, 3 and the bases from ment. Exhibits actually comparison with what was constructed which assuming that these sketches made. Even can be alone requirements comply the with Section 53.330, would simply there is no described, resemblance аs above apartment. and the those sketches Christensen between might said that be term “sketches” While it expansively, † should not be read so ordinance in the only City this is the tool which that can use we note † Oswego establishing very Lake ordinance as We view type, height, and bulk as to control structures minimal be built. advantageous City, it would be We believe adjacent property develpper, if the owners the PUD ordi explicitly what would more delineate must nance have giving approval plan prior development. tó a final it before height, type, oversee bulk of structures to built advance construction thus has en importance
hanced under the scheme of envisaged by general Oswego Lake PUD ordin ance. ‡ Therefore, because the Christensen apartment comply did not with the sketches submitted, that struc plan ture violated final and the ordinance implemented plan. Defendants contend that con plans structed inwas accordance with the submitted Planning it and that sowas declared Commission. *17 City gave approval In the June, 1969, Council its plans. began the final Defendant Christensen then plaintiffs excavation. the When saw the extent of the large they remonstrating excavation and the filed fill, petitions City City with the Council. The Council re- Planning “courtesy” ferred them to the A Commission. public hearing given plaintiffs on November 4, Planning and the 1969, Commission decided that the apartment complied with plan the final gave approval. argue its Defendants that the de- Planning cision of the given Commission should be ¡of presumption validity. Compare Murphy v. S. A. Hutchins (1972), Assoc., & 263 Or 245, P2d 1273 Washington supra. with Fasano v. Co. Comm., argument The defendants’ must fail because the Planning Commission’s action on November 4, when they approved plans apartment first saw and of the legal hearing is constructed, without effect. That only objections was called after plain- arose from the ‡ In expressly holding, reject position so we the defendants’ they specific did not need to submit sketches of what was to they be built and therefore compliance were not bound to build in therewith. proposed height concerning and hulk of tiffs hearing courtesy merely a apartment deemed and was planning part was not benefit. It for their adjudication process, only after-the-fact an ad hoc but complied with issue of whether under Moreover, sketches submitted. architectural City not the Plan is the Council it ordinance, part approval ning must, Commission buildings types plan, to be of the final review given public approval hear is after constructed. This may ing or interested inform where affected individuals City their allow the Plan concerns. To Council unilaterally plan ning the final alter Commission prepares developer subsequently the actual when the plans re for construction circumvents the ordinance’s City vesting quirement of final review in the Council. generally, See Millbrae Ass’n Residential Survival Rptr App Millbrae, v. 2d 69 Cal Cal (1968). Christensen’s testi- of the defendant effect mony apart- that he did not form future know what may it the form had be, ments would but whatever take, already approved by Planning been Commission. procedure meaningless Approval of this would render requirement approval final must come from *18 hearing after and a Council notice have been parties. interested afforded to that under the find, therefore,
We ordinance a developer must submit sketches actual structures to by plans is and that he thereafter bound built, these change only by may complying them later with the the ordinance. · by appropriate procedures delineated · Oswego See Section 53.420 the Lake ordinance.
RIGHTS OF ADJOINING LANDOWNERS right adjoining nature of the of an landowner bring enjoin zoning to suit the violation of a ordi- variously by nance has been described the courts, but policy all seem to expressed reflect consideration Zoning in 3 Anderson, § American Law of 636, 23.11 (1968), where author states: many municipalities per- “Since lack sufficient carry program sonnel out an zoning effective
inspection and enforcement, actions commenced privatе persons enjoin zoning violation of the important part ordinance an are of the enforce- program. ment In actions, these which are more by taxpayers numerous than those commenced by municipalities, person pro- who institutes the ceedings private capacity, acts his not as a tax- payer seeking taxpayer’s to vindicate a -interest in * * *” law enforcement. (1) zoning Four theories been have advanced: that a party beneficiary ordinance is similar to a third con- (2) zoning tract; is similar ordinance to a running (3) covenant with the land; the cause of (4) action similar to a nuisance action; that a zoning rights ordinance creates in favor of individuals public as well as authorities which are enforceable in a civil suit. underlying of the theories adjoin-
One a suit ing expressed landowner is that in Pritz v. Messer, (1925), St 149 NE Ohio where the Ohio Supreme analogy rights drew an Court between accru- ing party beneficiary third under a contract adjoining rights of zoning landowners under a theory Ordinance. This was characterized as: * “* application haveWe here an injunc tion under a ordinance which zones the entire
475 city community. for the benefit benefit zoning be derived the observance of these regulations only municipality, accrues, not abutting property plaintiff, but to the owner. The capacity bring therefore, as her this is in suit, position analogous to that of one for whose benefit by party. Having a contract has made been another a substantial in the enforcement interest of the zon ing proper party restrictions, she is a to enforce injunction.” their observance a suit for 149 NE at 32. approach
A
analogize
variant
this
would
running
covenant
zoning
with the land in a deed with a
Super
ordinance. In DeBlasiis v. Bartell, 143 Pa
485,
(1941),
structure built in violation of the ordinance per was not a nuisance se, court held that a suffi similarity cient existed per between a nuisance accid ens (cid:181) and the permit violation of the ordinance to (cid:181) per act, occupation nuisance A accidens is an or structure only location, is a nuisance because surroundings, of its operation. manner of Comment, Zoning The Effect of Ordinances Nuisance, on the (1955). Law of LMich Rev
476' plaintiff’s In so favor.
injunctive lie relief to holding court stated:
“* ** *20 though it is structure, of The erection a is it such when nuisance, becomes itself a in not located * * *” by A138 place law. forbidden a at 486. App 2d Co., 76 Cal Mercer-Fraser v. McIvor
See also (1946). P2d 758 172 247, Sapiro theory exрressed Frisbie, v. is
A fourth (1928), App where California P 280 270 299, 93 Cal held Appeals the Third District for of District Court injured land- private of action accrues cause that a There, ordinance. of a the violation owners into a funeral a residence converted defendants city plain- ordinance and parlor a in violation adjoining property sued recover for owners, tiffs, enjoin damages property and the de- past to their premises of the use in that from future fendants holding, said: the court In so manner. plaintiffs right and to claim recover “The they may any injuries damages which have for dispo- may pending the final sustain sustained, and by any litigation, deprecia- reason of of this sition by property real caused of their in the value tion complaint of which the commission acts with the propo- charges to us to a seems defendants, subject controversy. to serious which is not sition commonly recognized a well-established
It is given right is general that, where statute rule a particular per- municipаl ordinance to a class of or special protection, merely their and for sons large, public liability protection of at a for any particular thereby favor of such created is any against person right, violates such who class and as a injures person property result of- liability may be enforced former, remedy appropriate or civil civil action a means
477
peculiar
particular
circumstances
case.
(cid:127)
(cid:127)»
(cid:127)
P at
270
282.
Corp.,
Normac
Md
REMEDIES Appeals The of Court remanded this suit to the mandatory a decision whether a court circuit junction in- ordering apart- should issue removal of the building plaintiffs or whether the ment should be 478 Appeals doing of damages. the Court so, In
awarded
by plaintiffs
loss of view
a
that evidence
also held
damage.
properly
as an element
admissible
the landowner
established
law is well
enjoin a
violation
action
maintain an
entitled
regulation
zoning
will reduce
such violation
where
a
supra
property.
at
Anderson,
638,
3
of his
use value
§
Yokley, supra
in
at
22-5. An
§
14,
3
23.11.
also
See
equity power,
on
junction,
is based
exercise of
proper
equitable principles.
circumstances the
Under
prohibited
may
of a
the cessation
use
order
court
property
of the structure. Welton v.
or demolition
(7th
Bldg.
1934);
Corp., 70 F2d 377
Cir
St.
40 East Oak
(1951);
233Mnn
DeLuca,
372, 46
v.
NW2d 873
McCavic
Williams,
889, 112
Neb
v.
NW2d 16
Beatrice
Rathkopf, supra
§
(1961);
at 66-25,
10.
granting mandatory
lieu of
in
'in
court,
may
damages
adjoining
junction,
award
owners
resulting
depreciation
property
in value of their
for a
Sapiro
supra;
Frisbie,
v.
ordinance violation.
from the
(1957).
Thompson
479 hearing, and a lack of notice was invalid for variance violation of in motel had been bruit and therefore remaining issue was whether the ordinance. The damages. injunction or plaintiffs were to entitled injury plaintiffs against Balancing the relative hardship of removal on the defendants, the relative mandatory money damages in lieu of a court allowed injunction. The court stated: *
“* *
jurisdiction
[P]roper
equity
resort
necessity
application of
of
extra
does not
invoke the
mandatory
by way
ordinary
of
relief
and severe
chancery
duty
injunction.
It is the
of the court
weigh
in
the relative convenience or
consider and
injury sought to
relative
be cured
convenience, the
injunctive
compared
hardship of
relief.
as
28 Am.
with
Injunctions
p. 250.
con
54,
Sec.
Such
Jur.,
damagеs
may dictate an
sideration
award
injunction,
application
and the
has
lieu
doctrine
building
to violations
restrictions. Jackson v.
Stevenson,
496,
Mass.
31 N.E.
Amer
691, 693;
156
* * *”
132 N.Y.
N.E.
Deane,
741,
man v.
30
742.
355,
A2d
at 651-52.
plaintiffs herein introduced evidence
relat
depreciation
ing
to a
the market value of their
resulting
apart
property,
the construction
building.
damages
property
If
are
ment
be awarded
damages
plaintiffs,
should be
measured
plaintiffs’ property
depreciation in the
value
noncompliance
the defendants’
is attributable to
with
plan.
pursuant
police
could,
the final
to its
complying
procedures,
powers
proper
and after
with
public
resulting
interest to zone an area,
in the
act
property
of the value of
the diminution
within or with
any damage
zoned area. In such a case,
out
to a
compensated.
need not be
landowner
Euclid v. Ambler
Realty
Co.,
365,
US
S Ct
(1926). City approve in the the Thus, ease, instant did plans building adja- apartment the submitted for an plaintiffs’ property. . cent to as we havе However, building actually the constructed stated, bore rela- no tionship plans submitted. As a the ordi- result, was nance violated. Thompson supra, recognized
In
Smith,
v.
the court
concept
partial illegality
when it held:
“* * *
plaintiffs
The
are not entitled to a re-
covery
depreciation [in
of the full
the market value
property]
of their
caused
the construction of the
adjoining,
only
motel on the lot
but
to such de-
preciation that resulted from the construction at an
proximity
plaintiffs’ property
unauthorized
beyond
prescribed by
the limits
the ordinance.
* '* *”
American Domain stant case Law § Nichols on Eminent (3d 18-44, 1969) 18.11 seq. However, ed et §' in the in damage should .no be included for those factors which present any have been event the construction because Would apartment building approved by City. of an had been law a conclusion trial court entered plaintiffs’ insufficient was evidence stated that build- to establish that of law a matter ordinance. At ing of the PUD violation allowing motion to the defendants’ trial, close it could did because that it so court stated dismiss, unreasonably. arbitrarily acted riot find that upon question pass did court As a result the *24 injunction plaintiffs an or to were entitled of whether damages. did not rest their case the defendants Also, moving consequently for a dismissal, before any regarding dam- did not offer evidence defendants injunctive ages, or the laches, defense relief, waiver, estoppel. or specific presented question now is whether offering precluded any
defendants are
evidence.
declaratory judgment
is
action,
this cause
a
While
equity.
properly
so,
it
as a suit
tried,
Stover,
641,
Newman v.
187 Or
Karoblis. should have alerted been supra, Stover, where we Newman v. stated a de- equity suit fendant should “close” Ms case before *25 moving previously as we However, to dismiss. have the mentioned, defendant in Newman on the remand put on his case. Later, was allowed in In Be Estate supra, of Andersen, rule Newman was held not of party аpplicable one fails to where sustain his burden proof. of proce- that we should believe follow
We the same case as did in the instant we dure law action in supra, Thompson, v. Petersen remand tMs suit n allow parties relating to introduce both evidence to the remedy injunction monetary of wMeli (cid:127)issue dam- — ages proper. part proceedings, As of plain- —is defendants will tiffs also allowed to-introduce damages relating of under the issue evidence Finally, the defendants are above. rules enunciated relating any to the defenses offer evidence allowed to estoppel. of laches and waiver, Appeals of the is affirmed
The decision Court of herein, modified and this remanded to the cause proceedings for further circuit court consistent with opinion. this dissenting.
O’CONNELL, J.,C. majority opinion disposes upon of this case theory employed different from either Appeals. trial or the Court This court variation is surprising light ambiguous not nature of plaintiffs’ request, Their claim. initial directed to the Oswego simply sought Council, Lake a reduction proposed size of in the the Christensen building. complaint Once their was filed, however, this simplicity disappeared despite repeated attempts by identify theory upon the trial court plain- proceeding. appears It tiffs were plain- that at times upon validity tiffs’ attack was the PUD project, upon validity at times for the entire approval plan for the final for Phase IV, and at still conformity times on the other the Christensen build- ing plan adopted by city. final wo find three result,
As a
different
apply
courts
ing
hypotheses
reaching
three different
a decision.
Appeals
opinion
rested its
upon
The Court
“change in circumstance” test set forth in Roseta v.
Washington,
County
taken, city planning commission its the arbitrary had no sub- clearly unreasonable objects sought legitimate to be relation to stantial рublic gained, health, the furtherance of is, that safety or welfare.” morals, apparently, is to that the case decide, nowWe ground disposed the construction of on building apartment the Lake violated the Christensen Oswego it did conform ordinance not because PUD part of the submitted as architectural sketches plan. final Phase IV say majority does not Christensen
The general plan incompatible apartment with is plaintiffs’ subject claimed it to attack because violates dwelling single-family in the continuance interest building apartment does is that rationale zone; comport sketches. One cannot be sure from with the apparently majority opinion, majority but showing presented if had sketches been hold that would design building having apart- apartment of this legally building, have it would been constructed ment ordinance. a valid under opinion mag- principal vice that it aspect proportion planning one of all out
nifies design building) (the of at the eost of architecturаl important many more considerations in other formu- plan. good lating land use character of the architectural Christensen upon looked could not be as an isolated framing planned-unit development. feature All plan relating features of the the other traffic drainage, sewage parking, disposal, popu circulation, open pressure, had areas, etc., lation be considered *27 thoroughly the both considered in were and, fact, developers two city course at least over the the and city may the years. the and that both assume also We including housing developers units, all the located plan possible apartment, the consistent with best this objection possible ning objectives, to than the other style apartment architectural the Christensen the city building. complied In with addition, the all notice hearing requirements prior approving plan. to and the plaintiffs challenged when the Thereafter, construction building the this before the Council, council planning referred matter to commission. After plaintiffs given opportunity had been to be heard, building blueprints commission, with the actual before ruled building it, Christensen compliance plan. was in with the Phase IV Lake Os wego planning 53.420 Code vests the commission with authority approve change alleged the kind of plaintiffs, empowered approve since it any is change plan in a final which does “not density, alter total dwelling types, ratio of unit planned- boundaries of spaces.” ‹ development unit or public location or area of ‹ Changes “53.420 plan. to final owner-applicant may changes “The make such ap- in the proved plan program final and as are any consistent with sub- sequent plat approved by subdivision planning commis- changes sion, provided such do not alter density, total ratio dwelling types, planned-unit unit boundaries of the de- velopment public spaces. or location or area of In the event plat containing changes a subdivision such is not submitted approval planning to the commission, proposed changes to plan approved program may final be submitted writing planning approval director for and amendment plan program the final on file city with provided changes dwelling do not alter such ratio of increase density; unit do not alter the types dwelling different units to each other; do not change type or location of commercial struc-
4S6 authority power
Inherent to determine this given change Plaintiffs has been made. were that no hearing though Oswego required none was under Lake 53.420. › Code planning de-
As of commission’s the date building begun, actual construction had not no cision, permits had been no construction-related finan- issued, finally litiga- cial commitments had and no made, been pending. tion was matters Prom this the other recited it can seen that there is no above, evidence justify plan- record this that the inference ning arbitrarily, capriciously, commission acted in bad *28 change tures; velopment planned-unit do the boundaries of the de- change public and do not the location and area of
open spaces and recreational area. “Changes change dwelling density, which alter or unit ratio types dwelling units, of number of different of commercial uses, planned-unit development boundaries of the or affects open spaces location or area of and recreational shall be made petition approval planned-unit in the form of a for of a new development and shall be made in accordance with this article.” › At hearing testimony the there was to the effect that the building garden apartment. Christensen was a No record of the hearing Fasano place prior exists because it took to our in decision County Washington Comm., v. Or P2d 23 (1973). Nevertheless, Rohde, in the circuit court Carl chairman of Oswego Planning the Lake Commission when the Christensen building gave following approved, the account of certain testi mony courtesy hearing: received at the “* * * garden apartment [A] quotation marks, in is not de- general acceptance profession in the fined in land hearing architectural or special management. And one of our members at that specifically testified or stated that he had looked at developments country various around the is an architect— —he garden apartments and that he saw that were several stories higher larger garden than this one and in bulk and he also saw apartments story, which were one or two three or four unit buildings generally accepted any specific legally so that in the absence of term, design pro- definition of a we in the profession, say just fession or the architectural what that we do individually we think is correct.” precluded it pressure which of the Mnd or under faith, that the setting, decision fairly. its acting In this apart- garden building awas Christensen be conclusive. ment should entire the opinion holds join in an
I cannot void IV Phase planned-unit scheme with indefinite plan was somewhat final because the designated apрearance respect of the structures the to vagueness, “garden apartments.” it, I take This ordinary Euclidean fatal would not be say, opinion because seems But, ordinance. planned-unit development flexible, its nature is so plans prior crystallization of there be a must giving of ordinance in order the enactment to avoid developer any to construct kind of carte blanche pleases. a structure he validity governmental repeat,
I rest entirely upon sufficiency of action sketches over emphasizes process passing detail whole upon nothing plan. a land use There is PUD enabling requiring showing spe sketches ordinance styles. cific architectural It is consistent with lan guage contemplated ordinance to conclude that it only conceptual portrayal type building juxtaposition plan, and its with other features of the leaving style the refinements architectural to be *29 beg worked out sometime before actual construction city ins. fi must аssumed have that the term fi Lake Oswego provides part: Code 53.330 in relevant “In developments planned-unit containing twenty-five more than developer acres the shall submit architectural sketches as re quired developments [for twenty-five acres] above less than for phase containing twenty-five each less than acres phase begins time such (Emphasis actual construction.” before added.)
“garden apartments” meaning give had sufficient it necessary control over the kind of structure to be designated located in the area. The effect of our opinion say “garden apart- is to either that the term meaning, ment” has or if no it does we, rather than qualify will decide Council, which structures judgment under do that term. We not substitute our governmental agencies that of in other areas of the there exception is no reason law; for us to make zoning. “garden apartment” may case of The term surely vague, planning but commission is better equipped apply it than is this and we court, have no right second-guess superimpose judgment our over of the commission.