Anderson v. Peden
| Decision Date | 22 November 1978 |
| Citation | 284 Or. 313,587 P.2d 59 |
| Parties | Robert S. ANDERSON, Petitioner, v. Joe PEDEN, W. S. Schinkel, Albert Young, Deschutes County Commissioners, and Deschutes County, Oregon, Respondents. TC 18768, CA 7198; SC 25641. |
| Court | Oregon Supreme Court |
[284 Or. 314-A] Timothy V. Ramis, Portland, argued the cause for petitioner. With him on the brief were Mark P. O'Donnell; O'Donnell, Rhoades & Gerber.
William E. McCann, Deputy Dist. Atty., Bend, argued the cause for respondents. On the brief were Louis L. Selken, Dist. Atty., for Deschutes County, and Paul J. Speck, Chief Civil Deputy Dist. Atty., Bend.
Petitioner applied for a permit to place a mobile home on land which Deschutes County has zoned for agricultural and single-family residential uses and certain "conditional uses," including mobile homes. A denial of this application in 1974 was set aside by the circuit court on writ of review in 1975. The court correctly did not order the permit to be issued but remanded the proceedings to the county, retaining jurisdiction. ORS 34.100. After renewed hearings in 1976, respondents again denied the requested permit, and the circuit court in a supplemental order "denied" the writ of review. 1 The Court of Appeals affirmed, 30 Or.App. 1063, 569 P.2d 633 (1977), and we allowed review.
The case presents a number of separate issues which we take up in order.
1. The Deschutes County ordinance. The first issue concerns the conditions under which Deschutes County allows a mobile home to be placed on land zoned "A-1" under its zoning ordinance. We begin with the fact that neither these conditions nor the scope of respondents' discretion in granting or denying a permit follows simply from describing a particular type of structure or land use as a "conditional use." Zoning law is not common law but a branch of state and local legislation and administrative law, created by particular statutes, rules, charters, comprehensive plans, ordinances, and resolutions, and the criteria governing such matters as "conditional uses" must be sought there rather than in cases from other cities, counties, or states. 2 The court's first task is to interpret the Deschutes County ordinance. See Clackamas County v. Dunham, 282 Or. 419, 579 P.2d 223 (1978).
Standing alone, the term "conditional use" can convey quite different meanings. It could mean that the specified use is a permitted use whenever certain conditions exist or are satisfied. Or, second, it may mean that the use will be permitted subject to special conditions attached to the individual permit. Third, "conditional use" historically has often been employed simply as a device to permit discretionary decisions on certain uses, without much attention to the meaning of "conditional." See 3 Anderson, American Law of Zoning (2d ed 1968) 147-148, § 18.05. Rather than assuming that the term is a known word of art, it would be helpful if draftsmen would spell out what "conditions" are meant; but the Deschutes County Zoning Ordinance, which contains an extensive list of definitions, does not include a definition of the term "conditional use." Insofar as pertinent to the present case, the ordinance provides as follows:
SECTION 3.010 Uses Permitted Outright. In an R-1 Zone the following uses and their accessory uses are permitted outright:
2. Single-family dwelling.
SECTION 3.210 Uses Permitted Outright. In an A-1 Zone the following uses and their accessory uses are permitted outright:
1. Farming as defined in this ordinance.
2. Uses permitted in the R-1 Zone.
3. Buildings and uses customarily provided in conjunction with farming.
SECTION 3.215 Conditional Uses Permitted. In an A-1 Zone the following uses and their accessory uses are permitted when authorized in accordance with the provisions of Article 7:
6. Guest house or mobile home.
Article 7 contains these provisions:
SECTION 7.010 Authorization to Grant or Deny Conditional Uses. Uses designated in this ordinance as conditional uses may be permitted upon authorization by the Planning Commission in accordance with the standards and procedures established in this article. In permitting a conditional use the Planning Commission may impose, in addition to those standards and requirements expressly specified by this ordinance, any additional conditions which it considers necessary to protect the best interests of the surrounding property or community. These conditions may include increasing the required lot size or yard size, limiting the height of buildings, controlling the location and number of driveways, increasing the street width, increasing the number of off-street parking and loading spaces, limiting the number, size, and location of signs, and required diking, fencing, screening, or landscaping to protect nearby property values. In the case of a use existing prior to the effective date of this ordinance and which is classified in this ordinance as a conditional use, any change in use or in lot area or any substantial alteration of the structure shall conform with the requirements dealing with conditional uses.
SECTION 7.050 Standards Governing Conditional Uses. A conditional use shall comply with the standards of the zone in which it is located except as these standards may have been modified in authorizing the conditional use . . . .
This section continues with special provisions concerning conditional use permits for yards, churches, planned developments, and mobile home parks.
Petitioner first argued that the statement in section 3.215 that, in an A-1 zone, a mobile home is "permitted when authorized in accordance with the provisions of Article 7," combined with the statement in section 7.050 that a conditional use "shall comply with the standards of the zone in which it is located except as the standards may have been modified in authorizing the conditional use," lead to the conclusion that a mobile home is permitted whenever it satisfies the general standards of the zone, subject only to whatever additions or modifications are made in the conditional use permit. His reading would give "conditional use" the second of the several meanings referred to above. The county interprets its ordinance as providing more discretion in allowing a "conditional use." This view finds support in the statement in section 7.010 that such uses "may be permitted" and other references to "permitting" or "authorizing" conditional uses. While either interpretation is tenable, we believe that the county may reasonably act on its view of what authority it meant to reserve in its ordinance. 3 Accordingly, the ordinance did not entitle petitioner to a conditional use permit as a matter of right, subject only to such conditions as might be imposed.
Of course, it does not follow that the county purported to reserve untrammeled discretion to allow or deny such permits. We turn to this issue.
2. The applicable standards. After the original remand by the circuit court, counsel for Deschutes County prepared a memorandum for the conduct of subsequent proceedings, which was read aloud by the Chairman of the County Board of Commissioners at the beginning of the new hearing on petitioner's application. With respect to the issue before the board, the memorandum stated:
Burden of Proof :
a. The burden of proof is upon the proponent in proving that the conditional use should be granted. The applicant must address himself to the following questions:
1) Does it comply with the Comprehensive Plan?
2) Does it meet with the requirements of the A-1 zone, including lot size, depth, area and yard requirements?
3) Will it conserve and stabilize the value of adjacent property?
4) Is it an encouragement of the most appropriate use of land?
5) Since the property is located within the Bend urban growth area, will allowance of the conditional use promote orderly and efficient transition from rural to urban use?
The first and second of these questions are not in dispute. Petitioner agrees that his application had to meet the requirements of the A-1 zone and, in turn, of the comprehensive plan, and respondents concede that it met them. The dispute concerns the propriety of the third, fourth, and fifth criteria, on which the board found that petitioner had not met the burden of proof. At issue is whether these tests could properly be added to the first two at all, whether they were too indefinite, and whether they were adopted without proper procedures. Examination of the three challenged criteria yields different results.
On the issue whether they could be added at all, we have held above that the ordinance contemplated the exercise of some range of discretion in allowing or denying conditional uses. Accordingly, it was not improper to make approval of an application contingent on criteria beyond those required by the zone and the comprehensive plan.
Procedurally, two of the three additional tests, whether the proposed use would "conserve and stabilize the value of adjacent property" and whether it would be "an encouragement of the most appropriate use of land," were not newly adopted at the beginning of this proceeding. They were taken verbatim from the "Purpose" section of the Deschutes County Zoning Ordinance. 4 When a statute or other legislation is prefaced by a list of "purposes," these purposes are not Ipso facto standards to govern administrative decisions under it. Depending on what other standards the legislation states or requires to be adopted, the statement of purposes may or may not be intended to serve that role. Cf. Marbet v. Portland General Electric Co., 277 Or. 447, 459, 561 P.2d 154 (1977). Unlike the statute in that case, the Deschutes County ordinance does not expressly direct the board to adopt standards for the issuance of permits. Respondents have apparently construed the purposes stated in section 1.020 of their ordinance to be standards for the exercise of...
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