Anderson v. Peden

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; SCHWAB
• Citation: Anderson v. Peden, 569 P.2d 633, 30 Or.App. 1063 (Or. App. 1977)
• Decision Date: 27 September 1977
• Parties: Robert S. ANDERSON, Appellant, v. Joe PEDEN, W. S. Schinkel, Albert Young, Deschutes County Commissioners and Deschutes County, Oregon, Respondents.

Page 633

569 P.2d 633

30 Or.App. 1063

Robert S. ANDERSON, Appellant, v. Joe PEDEN, W. S. Schinkel, Albert Young, Deschutes County Commissioners and Deschutes County, Oregon, Respondents.

Court of Appeals of Oregon.

Argued and Submitted May 17, 1977.

Decided Sept. 27, 1977.

Timothy V. Ramis, Portland, argued the cause for appellant. With him on the brief were Mark P. O'Donnell, and O'Donnell, Rhoades & Gerber, Portland.

Paul J. Speck, Chief Civ. Deputy Dist. Atty., Bend, argued the cause for respondents. With him on the brief was Louis L. Selken, Dist. Atty., Bend.

Before SCHWAB, C. J., and TANZER and RICHARDSON, JJ.

SCHWAB, Chief Judge.

By this writ of review proceeding, petitioner challenges respondents' denial of his application for a conditional-use permit to place a mobile home in a single-family residential zone. Petitioner's principal contentions are: (1) his mobile home is an outright permitted use; (2) respondents erred in applying previously unpublished standards to his conditional-use application; (3) respondents' findings are insufficient; and (4) respondents' reasoning is fallacious. We reject each of petitioner's contentions, and affirm the trial court.

Petitioner owns five acres in Deschutes County near Bend. His property is zoned A-1. Single-family dwellings are an outright permitted use in that zone; mobile homes are a conditional use. Petitioner applied for a conditional-use permit to allow him to place a 26' by 64' mobile home on his property.

Following numerous prior hearings, the final negative decision here reviewed was made by the Deschutes County Board of Commissioners following a quasi-judicial public hearing conducted February 7, 1976. At the beginning of that hearing, the commissioners stated they wished to hear evidence on five issues. The Minutes state:

"Chairman Don Grubb began the meeting by stating the nature of the hearing and the rules of procedures as follows: * * *

"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?"

Both petitioner and neighbors who opposed the conditional-use permit he sought presented evidence germane to these factors. Most of the evidence was about valuation. Petitioner presented evidence that his land was assessed at $12,190, and that the purchase price of his mobile home was $29,630. Opponents presented evidence that the appraised value of surrounding homes ranged from $13,085 to $42,885; that one nearby home had recently sold for $35,000 substantially more than the appraised value; and that another nearby home was listed for sale at $58,500 also substantially more than the appraised value.

On April 7, 1976, the county commissioners released findings denying petitioner's conditional-use application, concluding that:

" * * * (T)he applicant has failed to satisfactorily prove that the placement of the mobile home will serve to stabilize the value of adjacent property, that it is an encouragement of the most appropriate use of the land, and that the allowance of the conditional use will promote orderly and efficient transition from rural to urban use."

1. Permitted Use.

In the Deschutes County A-1 zone, where petitioner's property is located, a single-family dwelling is a permitted use; a mobile home is a conditional use. At the times material to this case, the zoning ordinance defined a single-family dwelling as "A detached building containing one dwelling unit and designed for occupancy by one family only," Section 1.030(6); and defined a mobile home as " * * * a vehicle or structure constructed for movement on public highways * * *," Section 1.030(37). Petitioner apparently contends that his potential abode, although constructed for movement on the highways, will become a single-family dwelling once such movement is completed and the structure is attached to a foundation.

Petitioner's contention may find some support in Clackamas County v. Dunham, 30 Or.App. 595, 567 P.2d 605 (1977). However, it is impossible for that contention to avail petitioner anything in this writ of review proceeding. We are here reviewing denial of a conditional-use permit to place a mobile home where not otherwise permitted. We can reverse only if we conclude the conditional-use permit should have been granted. ORS 34.040 and 34.100. Petitioner's permitted-use contention may well mean he was mistaken to apply for a conditional-use permit in the first place. By applying for a conditional-use permit he, in effect, conceded for the purpose of this proceeding that the use he proposed was not a permitted use.

2. Application of Unpublished Standards.

As previously noted, the board of commissioners announced relevant standards before any evidence was received at the hearing that led to its decision here reviewed. Petitioner strenuously contends this "violates procedural due process," arguing, among other things, that:

" * * * Permitting formulation of standards after the hearing enables the decision-maker to conform the rules to the proof offered by one side and obscure the real reason for its decision."

The problem with this, and several of petitioner's other arguments, is that it has nothing to do with the facts of this case. The county commissioners did not formulate standards "after the hearing"; they announced certain standards at the beginning of the hearing. Rather than join petitioner in a discussion of hypothetical situations, we limit our consideration to whether this procedure was in any way improper.

Petitioner's contention that it was improper seems to have two relevant facets: (1) the timeliness of the commissioners' promulgation of standards; and (2) the specificity required in standards governing the granting of a conditional use. The timeliness facet need not detain us. Marbet v. Portland Gen. Elect., 277 Or. 447, 561 P.2d 154 (1977), holds the standards applied by an administrative body "may be stated and refined in the course of the (quasi-judicial) proceeding", 277 Or. at 471, 561 P.2d at 168, so long as the standards are articulated "sufficiently in advance of the final decision so that the applicant and other parties can address the import of the standard", 277 Or. at 463, 561 P.2d at 164. The present record reveals that petitioner was represented by counsel at the hearing before the county commissioners and made no claim of surprise or prejudice when the commissioners announced standards, or motion for a continuance. While the absence of legal representation could produce a different result, see Green v. City of Eugene, 22 Or.App. 231, 538 P.2d 368 (1975), we conclude on this record that the standards were timely articulated under the Marbet rule.

The specificity problem needs to be put in context. By providing that a given use will only be allowed conditionally in a given zone, a local government finds that there is a possible public need for that use in that zone, and simultaneously finds that introduction of that use into that zone may have disadvantages that outweigh the advantages. See Kristensen v. City of Eugene, 24 Or.App. 131, 544 P.2d 591 (1976). While an outright permitted use can be constructed without seeking or obtaining any further discretionary permission from planning or zoning officials, a conditional use cannot be constructed without: (1) applying for a permit, (2) which leads to a quasi-judicial hearing, and (3) the granting of a permit, based upon a discretionary decision by planning officials that the advantages of the specific proposed conditional use outweigh the disadvantages. Kristensen v. City of Eugene, supra. The specificity problem focuses on notification of how local government will calculate specific advantages and disadvantages.

In theory, notification would ideally be accomplished by spelling out all relevant standards in copious detail in the zoning ordinance. And it may be that passing on a conditional-use application in the total absence of standards would be improper. Compare Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963), with Sun Ray Dairy v. OLCC, 16 Or.App. 63, 517 P.2d 289 (1973). But the very nature of a conditional use in land-use planning makes detailed and specific standards impossible. The granting or denial of a conditional use is a highly discretionary act. Important and relevant considerations may vary from one neighborhood to another, and from one year to another. Judged by these considerations, we conclude that the standards applied by the county commissioners in this case were sufficiently specific. Sun Ray Drive-In Dairy v. OLCC, 20 Or.App. 91, 530 P.2d 887 (1975); Palen v. State Bd. Higher Education, 18 Or.App. 442, 525 P.2d 1047, Sup.Ct. review denied (1974).

3. The Adequacy of the Findings.

The commissioners' findings, to repeat, in part, were:

"CONCLUSION:

"The conditional use permit is denied for the reason that the applicant has failed to satisfactorily prove that the placement of the mobile home will serve to stabilize the value of adjacent property, that it is an encouragement of the most appropriate use of the land, and that the allowance of the conditional use will promote orderly and efficient transition from rural to urban use.

"FINDINGS:

"The denial of the conditional use is based upon the following findings:

"The neighborhood in which the applicant proposes to place a mobile home pursuant to a conditional use permit is a contiguous area of established...