*1 Argued 3, 1973, reversed and remanded December October January petition rehearing 3, petition denied March for review denied
TWIN BOCKS DEFENSE WATSECO Appellants, COMMITTEE v. SHEETS et al, (No. 16-077), Defendants, et al Respondent. CULVER, P2d 4l'6 *2 argued the and cause Merten, Portland,
Charles J. appellants. for filed the brief argued Douglas the cause Tillamook, E. Kaufmcm, respondent. him on the brief were McMinimee With Tillamook. Kaufman, & Judge, Foley and and Chief
Before Schwab, Judges. .TaNzer,
SCHWAB, C.J. . supplemental complaint ‹ complaint Plaintiffs’ (1) April allege, that: on an essence, 14, 1972, appropriate Tillamook was filed (high County, R-3 rezone area from den officials to (medium density residential) residential); sity to R-2 ‹ argues' pleadingá áre defective for tech Iritervenor find no merit this contention. nical reasons. We buildings permitted (2) apartment use in areas are a permitted areas zoned zoned are not R-3, but May (3) on inter with actual knowl- R-2; 25,1972, veñor, edge change application, applied pending of the zone county'officials building permit for a to construct a apartment building; (4) on 32-unit June 19, building permit (5) July on was issued to ihtervenor; county commissioners rezoned the land in 26,1972, question (6) from R-3 to therefore, inter- R-2; contemplated apartment venor’s construction of the prohibited by is now the new zone. legal question 5s Interven or demurrer raised the was entitled he whether ápartment spite of the zone solely on basis of the that was valid existing zoning under it was when issued. The trial question court answered- this in the affirmative and appeal. sustained the demurrer. Plaintiffs We reverse. *3 general, Oregon county In statutes authorize offi- zoning cials formulate to. ordinances that their meet See, local needs. ch ORS However, same sta- provide tutes a basic outline and establish -certain county minimum standards with which zoning each comply. present purposes, must For ordinance relevant minimum standards are: any structure, building, lawful use of “The. or any
land the time at of enactment zoning of regulation or amendment thereto, be continued - although conformity zoning as such not * * *” regulation (5)... : ORS 215.130 * * * “The location, erection, . construction of a * * * building violation, or structure other .of ** * zoning] [a regulation ordinance or deemed shall be a nuisance.” ORS 215.180. * * * * * person construct * a build- “No shall * * ing in violation or other structure regulation zoning] [a or ORS ordinance 215.190. general 215.180 and rule is stated ORS — illegal to a or other it is maintain
215.190
existing zoning
comply
of land
does not
begins.
gen
This
ordinances at the time construction
(5)
qualified
eral
215.130 which allows
rule is
ORS
any building”
adoption
“use of
after
the continued
even if
a
ordinance or amendment
conformity
with” the ordinance or amend
“not in
(5),
any
As used in ORS 215.130
build
ment.
“use.
existing building
ing”
a term of
it means an
art;
building upon
a
which substantial work has been com
—
building planned,
pleted
it does not mean a
but not
County
under
construction. Clackamas
v. Holmes,
reversed,
App
P2d 333
Or
Washington
(1973);
County
Stark,
P2d 190
10 Or
App
Sup
It possession mere of a the notion that owner entitles construc prohibited an amendment tion ordinance no actual there has been before the adopted. adoption In amendment was such situation, outstanding in effect revokes yet braiding permits not substantially which have upon. acted supported by authority conclusion
This analogous situations. general, permit or license
In does not create *4 rights, subject but, instead, irrevocable to modifi by subsequent changes revocation cation or in law.
449
E.g., Asbury Hospital
County,
ND 359,
v. Cass
72
7
(1943); Railway Exp. Agency NW2d 438
Commerce
generally,
(1940);
Com.,
Ill
nance, applicant alone confers in the against in the ordi- imposes nance which further limitations proposed. use or structure nothing the landowner done has “.Where sub- obtaining sequent permit, usually he is held by any change be bound ordinance nullify permit.”' even its (Foot- effect omitted.) Eathkopf, Zoning *5 by subsequent enactment effect in revocation building, zoning prohibiting the laws amendment of they' been issued. or use for which have business municipality say, a a revoke That is to changed prohibit the is enacted or where materially permittee has not the use and where permit. changed position the his in reliance on. legality of a is determined use stated, Otherwise governing by law at the time its com by prevailing law when a mencement, not Municipal permit porations 8 McQuillin, issues Cor (3d 1965). § 25.156 ed any, appears cited of the cases few, that It decided basis statutes as were commentators specific 215.130 215.180 and 215.190. In- OES approach problem those cases ón a most stead, balancing public law interests' basis, common against planning land use the'interests of In effective knowing property owners for certain when individual complete they with and a construction can already Oregon project. this has balance In struck statutes. the above-discussed although Finally, prior Oregon we no that note exact result, reached this dicta we have have cases be: assumed
“* * exception There the ‘actual use’ [for use] requirement a in situa nonconforming owner has' incurred tions where' sub legally expense sufficient stantial reliance previously issued County App Holmes, v. Or at 9. Clackamas reversing Supreme our Court, determination enough had not there been substantial in that case nonconforming qualify expense as a use, not ex- did disagreement proposition.. any this press also, See App County P2d Emmert, Clackamas Sup denied Ct review above, reasons stated we now conclude For the correct, i.e., in Holmes is that onr statement nonconforming necessary minimum to establish building permit plus substantial action thereon, standing permit, insuffi alone, that a cient to do so. remanded.
Reversed and *6 concurring. specially FOLEY, J., presented question in this The case is whether building permit may proceed of valid the holder subsequent in the construction thereunder face of a prohibit change purporting type zone to the of con- by building permit. holding covered the struction Our building permit proceeds holder of the that the at existing Oregon peril. agree suggests I his that law in this and for result reached case that reason I the opinion. point However, in the I desire concur to out jurisdictions accept other have several refused that to majority appears good for what to be the reason. Supreme example, Washington the Court of For held (1958): Hunt, Wash2d 331 P2d in Hull v. “Notwithstanding weight authority, of we upon prefer a date certain right to have which in to construct accordance with building vests the' ' adopt prefer permit. not We rule which forces (to through quote search the court to from State Ogden [45 Bellevue, ex rel. Wash2d 492, 275 P2d * (1954)]) ‘the moves and countermoves of way passing parties bringing of ordinances injunctions’ actions for which he —to stalling or acceleration of added the action administrative permits of issuance find that date —to. change position the substantial which of n madewhich finally right. prac- The vests more that administer, feel, tical we rnle applies party, property not, owner or vests when the building permit, permit for issued. ’This that is thereafter his permit of assumes that rule, course, granted applied for and be with the zon- consistent ing time ordinances and codes at the force permit.” for the at Wash2d Francisco ‹ City Planning pro Code San permit granted, subsequent had vided once amendments ordinance would not affect it diligently pursued long ac as was code. cordance The California Su preme commenting provision on Court in this said:
“Prior enactment of section even a to the permit finality which had achieved administrative subsequent eonld be revoked basis permittee laws. The in the could win only immunity post ‘ex from such facto’ revocation by constructing portion a substantial struc good ture upon his faith reliance authorized prior delayed A law. who con impending face struction in the might pro laws find he had to the not gressed enough immunity; qualify far in time proceeded unseemly one who haste ran the risk *7 stigma might that his conduct bear bad faith. No formula informed the how to facile delicate would strike the balance which afford the immunity.” (Footnotes, omitted.) desired Russian Improvement Ap Hill Assn. v. Board Permit ‹ Section provided: 150, (d) subdivision “Any building permit lawfully use for which a has been granted prior the effective date of an to the * * * may completed City Planning Code be and used in ac approved plans, provided cordance with the that construction diligently prosecuted completion started and is. building or such shall thereafter bé use. deemed to be a law . ” fully existing building or use Rptr peals, 423 P2d Cal Cal2d with, reasoning agree I in the above cases that provides would which the most the better role be one certainty, fixed on that the to build be is, bolding issues. This was the date circuit court. notes Law Planning (3d § 1966). 57-4, 57-2 ed general permits “The for build- _ ings' per protected and businesses are not against se