*1
Argued
affirmed December
October
Respondents,
TATUM
al,
et
Appellants.
COUNTY
CLACKAMAS
al,
et
Robert E. Glasgow, Portland, the cause for argued him With on the brief were respondents. Dusenbery, Bischoff Martin, & Portland. Templеton, Before and Langtry Chief and Judge, Schwab, Judges. Thornton,
THORNTON, J.
Defendants Clackamas and its Board of County County Commissioners from a decree appeal enjoin them ing from an initiative implementing enforcing ordinance known as “Ballot Measure No. Natural River Corridor,” ‹ Rivers Measure —Clackamas adopt ed the voters оf by general Clackamas at County ‹ The lying generally ordinance would zone an area of land adjacent Carver, to both sides of the Clackamas River between Oregon, Oregon. legal description pro Estacada, The of the posed appears fatally point scenic zone defective in that bе beginning point boundary and the eastern line of the where the proposed zone crosses the Clackamas do not make reference River geographical points. zoning plan to fixed and definite The would court held election of November 1972. trial authority County no
that the have Clackamas procеss; zoning legislation by adopt the initiative authority procedural re even if such existed, that complied quirements with in ch 215 were not of ORS adoption that the initia measure; ballot regula temporary rules and tive ordinance and the adopted pursuant measure were to the ballot tions invalid. primary us is whether issue before county, County, rule a non-home
voters of Clackamas authority ordinance have the process. support initia- that In their contention argue that the sub- measure is defendants valid, tive ject meaning legislation within the “local” § Constitution, and Art IY, may properly enacted the ordinance *3 process. County by the initiative оf Clackamas and statu- the constitutional our review of From prior question, dealing and tory provisions with this Supreme the con- we reach Court, our decisions of be sus- cannot contentions defendants’ clusion that did not consequently court that the lower and tained, decision. err in its residential, rec- outdoor farm and of thаt land
restrict the uses roads, and utilities would railroads of reation. The construction be restricted opera- logging of commercial the conduct as well as apartments, condominiums, placement of erection or tions. The trailer zoned area. Also prohibited parks in the parks home would or mobile placement prohibited or the erection would be buildings. The or industrial structures and of certain commercial im- reservoirs, water dams, and other revetments of construction prohibited. poundment facilities would be or diversion killing trapping of regulate hunting, or also ordinance would area. the affected within animals birds
773 1 (5), provides: Art IV, The relevant of portion § reserved powers “The initiative and this and (3) subsections to the people by voters to the qualified further reserved section are local, as to all district each municipality character of every legislation special municipal man- or district. their municipality or for shall be provided those exercising ner of powers laws *.” general by refer initiative and that the It is of course true all voters of counties endum are reserved to the powers Consti by above-quoted provision is a “district” that a county tution. It is also true Mack, v. State Art 1 IV, (5). within the meaning § Stevens, 119 v. (1930); Briggs P 134 292 306 67, Or Olcott, Schubel 503, 60 Or P 169 138, (1926); 248 pro this constitutional P However, 120 375 (1912). determine In order is not self-executing. vision that in fact exercise power whether “district” any do t’o authority legislative we must find additional In determination words, so. other proper how, analyze that we us issue before requires voters of a matter what what and on degree exercise power. non-home rule county may “dis no state that in this It is well settled process enact a measure trict” may except IV, la), Art § 1 IV, (5) (formerly under Art § either power, some additional pursuant statute. State a charter or by specific virtue of Rose (1916); P 399 Astoria, 154 v. Port of 1, 79 Or Bar P 498 (1917); Portland, v. Port of 541, 162 82 Or (1917); P Johnson, 800, ber v. 390, 86 Or P County, v. Lake 89 Or Carriker *4 234 Or Douglass, Hansell v. P 573 (1918); fol- same principlеs (1963). Applying P2d 977 legis- specific lowed in we must find a cases, these regulate land use the initiative lative to measure in the instant case to order for the ballot be valid. legislature argue in- has,
Defendants that specific people of made a authorization to deed, procedure adopt any county to usе the initiative only zoning is the land use and that not ordinances; county governing body land use authorized to legislature specifically regulations, has but also the county power granted each the voters of subject matter.. on the same initiate ordinances that contention consider defendants’ We first expressly legislature the voters authorized ha.s ordinances.regulating land use. all counties to initiate provides: (1), which cite 215.180 Defendants OES adopted “Any 215.010 to under OES law be a local to 215.422 shall 215.190 and 215.402 meaning 254.- OES to, within 310.” of, (Emphasis supplied.), pro- portion pertinent which 254.310, and OES vides : county every authorized “The repeal their laws for all local enаct, amend process
county by the initiative * * supplied.), (Emphasis argue position. supportive Defendants of their all defines 215.130 that because OES because OES and that local, ordinances as every utilize can provides Measure process Ballot laws, all local adopted properly citizens Claсk- No. 10 was legislative express au- County, pursuant amas thorization.
775 argu- properly In order to evaluate defendants’ necessary analyze is we ch ments it that first OPS 215. begin with rule that the well-established We a is whole, statute to be construed as a v. State Popiel, (1959), 216 P2d 303 and that given policy effect must be to the over-all which aсcomplish. v. entire statute was intended to Wimer (1963). Miller, 235 Or 383 P2d authorizing any organic OPS ch 215 act is county Oregon planning in land use and to undertake steps zoning. spells great The a act out in detail county must it itself of this follow if wishes avail legislative grant power: through provide for 215.020 215.100
OPS governing county planning body of to establish a comprehensive plan adopt commission, must which zoning. in for use Also included these sec- land and statutory upon plan- which the tions are standards ning well as decisions, is make its as commission public procedural requirements notice such as certain hearings. and planning (1) provides com- for the 215.110
OPS body governing ordin- to the mission to recоmmend plan. comprehensive accomplish OPS ances to (3) in which the manner forth the sets zoning may body governing ordinances. enact body governing recommended enact ordinances planning initiated ordinances commission, or requests report recom- provided .a it first itself, planning commission. OPS mendation from .215.- bоdy governing provides also numbering property renaming streets, ordinances controlling of land. subdivisions provisions
Other include authorization for in- zoning agricultural terim land use ordinances, zon- ing, procedures review and a host of other matters. foregoing analysis apparent is
From the it power promulgate and land regulating county governing use body, is ordinances closely pro
and is limited its terms. adopting specifically cedure for such ordinances Washington set forth in Fas ano See, ORS ch 215. *6 (1973). Comm., 264 P2d 23 Thus 574, Co. legislative grant general application the is not in its carefully conditioned. but is restrictive and (1), quot upon Defendant’s reliance ORS By misplaced. express terms, ed its that sec above, is “Any application tion in to: ordinance is limited its (Emphasis adopted under 215.010 to ORS language legisla supplied.) By the the use of such provision is limited to ture has indicated that this county’s already by governing adopted the ordinances body. legislative further intent This evidence of strengthened by еxpress an authorization to governing option, refer to the voters at their to bodies, county any an or amendment to of the ordinance rejection. approval 215.- ordinance for their or ORS By terming (4). law,” a “local such an ordinance legislature simply that ordinances has indicated adopted pursuant shаll deemed ch 215 to ORS popular referendum “local” and therefore to provided does not authorize in 254.310. This as ORS by adopt zoning initiative. the voters to ordinances language 254.310 authorize Nor does the of ORS by regulating land use ordinances voters to enact by argued process As defendants. our as initiative County Kosydar Suрreme Collins, held in Court (1954), construing Clerk, 201 Or P2d 132 271, 270 ancestor statute › of OES only 254.310, this statute provides exercising the mechanics for initiative powers granted court elsewhere. The said: granted powers
“It is evident that no were by the already did had this statute —the constitution powers the act reserved such them—but provide exercising them manner * * * ” 201 279. Or at (3), fi Lastly, nothing we find in OES 215.110 upon by supports also relied their defendants, entirely contention. This with au section deals thority county governing body of the amend enact, repeal planning ordinances recommended Nothing commission. in this can be construed section authorizing out voters initiate procedure prescribed by sidе the ch Like OES 215. powers wise the initiative reserved Oregon § Art IV, cannot Constitution authority. attach to such a limited › General 1, 374, pro p Laws of ch § vides: *7 people hereby every county “The of authorized to en- act, repeal county by amend or all local for their laws process. procedure and initiativе The method of by county any powers in the use the of of these provided by Oregon laws, sections of 3470 3485 Lord’s thereof, making amendments the effective and ref- initiative powers by erendum of to the 1 and reserved sections 1-a IV of article the constitution.”
fi (3) provides: 215.110 ORS governing body repeal enact, “The ordin- amend or authority by together section, ances recommended this public with whatever amendments it the interest believes requires. repeal governing body may enact, The also amend or any subject with reference to mentioned in subsection (1) section, governing body of this an ordinance on which the action, provided requests initiates that it first from the com- Summarizing ch then, nowhere ORS authority any to the do we find elsewhere, by county adopt zoning ordinance voters of a a require- process, shortcutting all of the safeguards provided by ments and ORS previously 215.422,which we have summarized. County question similar in Deschutes A arose (also county) a in 1966. The voters non-home rule anti-zoning county purported “initia- an following among containing tive measure” others provision : “ ‘ “* * * zoning or amend- All ordinances by originate peti- will
ments to ordinances by, persons affected tion and vote thereon from, pro- proposed or amendment such ordinance ’ ” Op vided law and not otherwise Att’y (Or 1968). Gen vаlidity questioned and was of the above measure attorney presented to the the issue the local district Attorney After an ex- for decision. General’s office in- authorities, haustive examination of the cluding previously earlier in referred to the decisions opinion, Attorney said: this General opinion the doctrine
“It is оur that under [82 P 498 Rose v. Portland Port of report regarding ordin- mission a and recommendation for submission time ance and allows reasonable body may governing also report recommendation. any subject repeal enact, men- amend or with reference section, ordinance on of this tioned in subsection aсtion, regardless body governing initiates which commission; county provided planning has a whether planning commission, that, has a in the event body requests governing re- from the commission a the port first regarding and allows and recommendation report reasonable time for submission of the and recom- mendation.”
779
P
390,
800,
Barber v.
Or
167
(1917)],
Johnson [86
County,
supra
Carriker
Lake
(1917)]
P
P
as re-
[89 Or
573 (1918)],
affirmed
in Hansell v.
Douglass,
supra
[234
315,
For the above reasons wе hold that the voters County, Clackamas a non-home rule do not county, have the authority use adopt zoning and land regu- We, there- lating ordinances process. fore, do not reach any of the other issues raised by parties. Likewise we no on express whether opinion voters of chartered counties the initiа- exercise power tive such measure as is involved here. Affirmed.
LANGrTRY, J., specially concurring.
I do not with the agree interpretation ORS 215.130 (1) and 254.310 which either or con- ignores strues out of existence a of ORS 254.310. part
ORS (1), which is part planning and zoning law, provides:
“Any ordinance under 215.010 to adopted ORS 215.190 and 215.402 a local law to 215.422 shall be within the of, to, meaning ORS 254.- 310.” (Emphasis suрplied.)
ORS 254.310 provides: “The every county authorized
enact, amend all local laws for their repeal
county by process initiative and the * * (Emphasis supplied.) legislature, majority argues that (1), quoted using “adopted” in the word OES proc- above, indicated reference the initiative that the zoning planning it ordinances al- ess limited county’s body. ready adopted by governing If this it that we construed out of be seems to me havе so, If “enact” 254.310. existence word OES legislature change a in the to make such wants however, it so; do we should at- laws, not, tempt to do so. give if we effect that,
It is obvious opportunity plain for a two no statutes, words any property hearing given own- is to affected kind Possibly, the value also, in a case that at bar. ers likе just compen- property may taken of some without questions thus raised. sation. Serious constitutional validity ques- possible If can constitutional we avoid giving concerning we do thus statute, so, tions a should remedy opportunity legislature the statute if upon. way policy A to avoid the that be the it decides question presentеd by is constitutional in this measure case. zoning initiative
The land in the was included part described in the which a record. is It commenced: AT A 300 YAEDS POINT “BEGINNING CAE- TO OF
EASTEELY FEOM SETTLEMENT THE YEE, WITHIN CAEVEE BEING DUE ESTACADA THENCE HIGHWAY, TO SOUTH CAEYEE CLACKAMAS EIVEE CEOSSING * *” # ED. SPEINGWATEE TO County Planning Hall, Mr. the Clackamas Director, testified:
*“* * place [W] a e were unable to find known as the is, settlement of That Carver. Carver given point ground an area but a from on the which to start it from, we could not do it planning picked arbitrarily point at staff bridge unincorporated middle of a in the area known attempted map as Carver when it of the in- to make closing cluded area. the in- With reference to the description cluded land Mr. Hall testified: again “Directions within the Ballot Measure on point vague this were result, and as a hadwe *10 * * began it take back to where it Additionally, description vague about a was “northeasterly” Springwater Highway line from right and across Clackamas River and a railroad way.
The evidence indicates land, that much valuable including gravel forest, sand and establishments and agricultural land, is affectеd ordinance, changes required. Obviously, vague land use description may expected give rise to endless liti- gation. vagueness description gives of the thus question validity rise to the of the entire initia- tive. Hodges, (1969),
State v. 254 Or P2d 21, Supreme Oregon is a in case which de- Court penal vagueness. clared a A statute void for state- applicable ment therein is well where constitution- ally protected property rights are at stake: due-process put- “In addition to its function
ting persons on notice of the law’s
rea-
demands,
purpose:
certainty
sonable
second
serves
adjudication
*.
vague
ad-
reasonable
“A law that
is too
judication
grounds.
vague
A
statute
is
on two
bad
delegation of
lends itself
legislative power
an unconstitutional
by per-
jury,
judge
and,
mitting
jury
it
be,
will
what the law
decide
against
principle,
rule,
ex
offends
if
not
post
I,Art
Constitution,
laws. See
facto
§ 21.”