Alexanderson v. Board of Com'rs for Polk Cty.

• Decision Date: 28 October 1980
• Docket Number: CA,No. 25142,25142
• Citation: 290 Or. 137,619 P.2d 212
• Parties: Alvin ALEXANDERSON, Petitioner, v. The BOARD OF COMMISSIONERS FOR POLK COUNTY, Respondent. 13226; SC 26628. . Rehearing Denied
• Court: Oregon Supreme Court

Page 212

619 P.2d 212

290 Or. 137

Alvin ALEXANDERSON, Petitioner, v. The BOARD OF COMMISSIONERS FOR POLK COUNTY, Respondent.

No. 25142, CA 13226; SC 26628.

Supreme Court of Oregon, In Banc.

Rehearing Denied Oct. 28, 1980. ^*

Dissenting Opinion Nov. 4, 1980.

Alvin Alexanderson, pro se.

Dennis McCaffrey, Polk County Legal Counsel, Dallas, contra.

TONGUE, J., dissented and filed opinion in which LENT and PETERSON, JJ., joined.

TONGUE, Justice, dissenting.

This is a case in which plaintiff sought to partition land in accordance with the Polk County zoning ordinance and comprehensive plan. The county denied the application, however, stating that although the application complied with the ordinance and plan, it contravened statewide planning goal 3. On appeal plaintiff contended that he had a right to rely upon the existing ordinance and plan, and that the statewide planning goals were not intended to be applied directly to requests for partitions. This court held that the county was correct in directly applying the statewide goal to plaintiff's application for a partition, despite plaintiff's compliance with the ordinance and plan, since by "implication" it found legislative intent that prior to LCDC acknowledgment of comprehensive plans and ordinances, the statewide goals are to govern "land conservation and development actions." See Alexanderson v. Polk County Commissioners, 289 Or. 427, 616 P.2d 459 (1980). Upon the discovery of legislative history not considered by this court in its initial opinion, plaintiff filed a petition for rehearing, which this court now denies.

I must respectfully dissent from the denial by the majority of plaintiff's petition for rehearing. In my opinion, plaintiff has called to this court's attention two new and important reasons why this court's prior decision in this case was wrong and should be reheard. First, he has correctly pointed out that one of the two statutory grounds upon which the majority opinion is based is invalid by the majority's own analysis. Second, he has presented to this court legislative history that clearly indicates that LCDC statewide planning goals are not to be applied directly to applications for partitions. These two new considerations, together with the reasons noted in my previous dissent, compel rehearing of this case, in my opinion.

1. Plaintiff's contention that one of the two grounds upon which the majority opinion is based is invalid by the majority's own analysis.

The majority's opinion rests upon implications found by it in two sections of ORS Chapter 197: ORS 197.300(1)(b) and ORS 197.275(2). As pointed out by plaintiff, however, in his petition for rehearing, the majority opinion's reliance on ORS 197.275(2) is invalid by its own analysis.

The majority noted that in 1977 the legislature undertook a major reexamination and revision of the state's land use laws. During this revision the legislature considered the question of whether the statewide planning goals did or did not directly apply to land conservation and development actions prior to acknowledgment of comprehensive plans. The majority stated that the result was to leave the law as it was, noting:

"If ever legislative history shows the enactment of a statute with a firm purpose not to legislate on an issue, the history of ORS 197.452 is it." 289 Or. at 432.

The majority then concluded that the question of the direct application of the statewide goals to land conservation and development actions stood "where it stood before the 1977 legislation." (Emphasis added)

ORS 197.275(2), upon which the majority relied, however, was enacted during that 1977 session. Prior to that time the language upon which the majority draws its implication did not appear in the statute. Adhering to the majority opinion's own conclusion that the legislature's intent prior to 1977 must govern resolution of the issue, the majority's reliance on ORS 197.275(2) must be rejected.

Although rejection of the majority's reliance on ORS 197.275(2) does not invalidate the entire majority opinion, it seriously weakens the validity of that opinion by removing one of the two grounds relied upon by the majority as its basis for its "implication" of legislative intent and thus provides a substantial reason for a rehearing. In addition, for the reasons previously noted in my dissent, ¹ I continue to believe that the majority's interpretation of ORS 197.300(1)(b), the other provision upon which it rests its decision, is also invalid and that its invalidity is further demonstrated by the legislative history next discussed.

2. The new legislative history is not only relevant, but persuasive, in demonstrating that the majority opinion was in error in its "implication" of legislative intent.

A. The new legislative history.

The legislative history relied upon by plaintiff in his petition for rehearing, together with plaintiff's contentions based upon that legislative history (with which I fully agree), are as follows:

"The 1973 Legislature also passed a companion bill, SB 487, which generally required counties to regulate parcelization in conformity with their comprehensive plans. 1973 OL, Ch. 696. This bill, in Section 10, amended ORS 92.046 to provide the following new provision dealing with minor partitions:

" 'No tentative plan of a proposed minor partition may be approved unless the tentative plan complies with the applicable zoning ordinances or regulations adopted under this section that are then in effect for the city or county within which the land described in the tentative plan is situated.'

"In another section of the same bill, similar language was used regarding approval of major partitions and subdivisions, but with one crucial difference, later to be described by Senator McPherson as a 'drafting error': subdivisions and major partitions had to comply with ordinances and with the comprehensive plan. 1973 OL, Ch. 696 § 16.

"When the 57th Legislature reconvened in the 1974 Special Session, it passed SB 1011 (1974 OL, Ch. 74), which eliminated the requirement that subdivisions and major partitions comply also with the comprehensive plan. Twice in this bill the words 'comprehensive plan' are deleted in connection with the requirements for approval of tentative plans for parcelization. § 2: § 3. To make it crystal clear that the goals do apply indirectly to parcelization, a new section (6) was added to ORS 92.044, stating that local ordinances must comply with the comprehensive plan. § 2. Attachment A to this Petition is a copy of 1974 OL, Ch. 74 §§ 1-3.

"The hierarchy was complete: tentative plans comply with ordinances, ordinances comply with comprehensive plans, and comprehensive plans comply with the goals. What happens and who was to suffer if there was a break in the chain was explained by Senator McPherson on the floor of the Senate just before SB 1011 was passed.

" 'The second was a very minor change which is actually a drafting error in the original bill (SB 487, 1973) and which you'll find on Page 4. You will find that we have the words 'the comprehensive plan' as deleted where we're talking about whether a tentative plan has to comply with the zoning ordinances. That is, the agreement in the committee, which originally drafted SB 487, was that a developer would have to comply with the ordinances; but in case the ordinances did not comply with the comprehensive plan, he shouldn't be held up for the fact that those two did not agree with one another.

" 'So we had drafted language which we thought was complete throughout the bill, which said that a developer complied only with the applicable ordinances; that is, the zoning ordinance or the subdivision ordinance. And so we wanted to delete the fact that the tentative plan had to comply also with the comprehensive plan.

" 'Now, elsewhere in law, we have said that the affected counties are to make their ordinances comply with the comprehensive plan. But this certainly should not be brought back onto the developer. (Original emphasis) Senate Floor Proceedings, February 23, 1974, Tape 5, Side 2, Log 435 approximately.'

"The amendment put minor partitions, major partitions and subdivisions all on equal footing, as originally intended by the 1973 Legislature. They are governed only by ordinances, even where the plan is in harmony with the goals, but the ordinances are not.

"It could not be clearer that the Legislature intended persons in Petitioner's shoes to be allowed to rely upon zoning and subdivision ordinances. The County's failure to straighten out its affairs was not intended to harm individuals."

It would appear that the majority would dismiss this new legislative history on the premise that it does not concern the proper application of ORS Chapter 197 upon which the original opinion relied in its finding of an "implication" of legislative intent in this case, but that this legislative history instead involves the proper application of ORS Chapter 92, which the majority did not rely upon in its prior opinion. I disagree with such a distinction. Although this case was decided by an interpretation of ORS Chapter 197 and not by an interpretation of ORS Chapter 92, I believe that the legislative history concerning ORS Chapter 92 noted by plaintiff is not only relevant to a proper decision in this case, but is persuasive in demonstrating that the majority opinion was in error in its implication of legislative intent.

B. ORS Chapters 92 and 197 must be read together.

ORS Chapters 92 and 197 are closely related statutes and the legislative history of one is relevant to an interpretation of the other. The principal purpose behind the provisions of Chapter 92 relating to the subdivision and partition of land is to regulate land use planning, the same purpose behind ORS Chapter 197. The necessary interrelationship in the present case between the two statutes is even recognized by the majority opinion:

"The problem (in this case) arises...