Archdiocese of Portland v. Washington County

• Decision Date: 10 September 1969
• Citation: 254 Or. 77,458 P.2d 682
• Parties: ARCHDIOCESE OF PORTLAND, in Oregon, as Oregon corporation, Appellant, v. COUNTY OF WASHINGTON, State of Oregon, and William Masters, John Anicker, Joe VanDyke, Clayton Nyberg and Edwin Guerin, in their capacities as members of the Board of County Commissioners of Washington County, and George Lewis, Arthur P. Ireland, Robert Scotton, Mrs. Eugene Kaza, D. L. Shattuck, Jerry Wieber, W. A. Fealy and William Robinson, in their capacities as members of the Planning Commission of Washington County, and Bailey Seida, the Acting Planning Director of the Washington County Planning Commission, Respondents.
• Court: Oregon Supreme Court

Page 682

458 P.2d 682

254 Or. 77

ARCHDIOCESE OF PORTLAND, in Oregon, as Oregon corporation, Appellant, v. COUNTY OF WASHINGTON, State of Oregon, and William Masters John Anicker, Joe VanDyke, Clayton Nyberg and Edwin Guerin in their capacities as members of the Board of County Commissioners of Washington County, and George Lewis, Arthur P. Ireland, Robert Scotton, Mrs. Eugene Kaza, D. L Shattuck, Jerry Wieber, W. A. Fealy and William Robinson, in their capacities as members of the Planning Commission of Washington County, and Bailey Seida, the Acting Planning Director of the Washington County Planning Commission, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 6, 1969.

Decided Sept. 10, 1969.

Howard A. Rankin, Portland, argued the cause for appellant. With him on the briefs were Shuler, Rankin, Myers & Walsh and Michael J. Walsh, Portland.

R. D. Roberts, Portland, argued the cause for respondents. With him on the brief was Ray D. Robinett, Hillsboro.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LANGTRY, ^* JJ.

O'CONNELL, Justice.

This is a declaratory judgment suit in which plaintiff seeks a decree declaring invalid an order of the Washington County Board of Commissioners denying plaintiff a conditional use permit to build a church, school and gymnasium facility in an area zoned for residential purposes. Defendants demurred to the petition on the ground that plaintiff's remedy is limited to a writ of review and that the court is without jurisdiction to grant declaratory relief. The demurrer was overruled whereupon defendants answered. Plaintiff filed a reply denying the affirmative allegations of the answer. After trial a decree was entered dismissing the complaint. Plaintiff appeals from the decree and defendants cross-appeal from the order overruling the demurrer.

The tract upon which plaintiff sought a conditional use permitt to build its proposed church and school structures contains approximately 12 acres and lies just off Canyon Drive to the south. The application was made under the Washington County zoning ordinance which, after setting forth the purposes of the ordinance, ¹ makes provision for the granting of conditional use permits as follows:

'1901--1 The following uses, because of their public convenience of necessity or because of the effect such uses might have upon surrounding properties, may be allowed in the indicated zones by the Planning Commission and the County Court, after due notice and a public hearing and finding that such a conditional use is not at variance with the various elements or objectives of this code and the comprehensive plan.'

'* * *

'1903--6 Churches and Accessory Uses Zones Allowed

(The zone classification of plaintiff's property is included in the list of zones allowed.)

'* * *

'1903--33 Schools, Nursery, Public, Parochial or Private Zone Allowed

(The zone classification of plaintiff's property is included in the list of zones allowed.)

'* * *

'1202--1 Status

1902--1.1 A conditional use shall not be construed to be a zone change and shall be granted by the Planning Commission and by the County Court for the specific use requested and subject to such qualifying conditions imposed at the time of the hearing or as may be hereinafter provided.'

Upon receiving plaintiff's application for a conditional use permit a study of the probable consequences of the proposed use was made by a division of the Washington County Planning Commission and on the basis of a study a recommendation was made to the Planning Commission that the application be denied. After a public hearing the Planning Commission recommended that plaintiff's application be denied. The basis for this recommendation was described by the Planning Director in the proceedings before the Board of County Commissioners as follows:

'1. That the site has traffic problems that, in their opinion, would not be conducive to construction other than residential;

'2. There is insufficient access to the site. I think it is stated insufficient. Perhaps the word 'inadequate' should be substituted here.

'3. Traffic that would be generated on the residential feeder streets in the area would not be in the interest of public safety or general welfare of the surrounding residential area.'

Plaintiff appealed to the Board of Commissioners. A hearing was held at which both the proponents and the opponents of the plaintiff's proposal presented their respective points of view. The Board also examined maps and photographs including aerial photographs of the proposed building site and surrounding area. Four members of the Board later inspected the area of the proposed development. Based upon this information and the recommendation of the Planning Commission the Board denied plaintiff's application.

Plaintiff then brought this suit for a declaratory judgment alleging that the refusal of the Board to grant plaintiff's application for a conditional use permit was 'arbitrary, unreasonable, capricious, discriminating and without substantial relation to the public interest, health, comfort or welfare.'

On appeal plaintiff contends that the trial court erred (1) in finding that there was substantial evidence to support defendants' denial of plaintiff's application, and (2) in its finding that there was no discrimination against plaintiff in denying its application when permits had been granted to all other applicants under the same or less favorable conditions. ²

This case is controlled by Milwaukie Company of Jehovah's Witnesses v. Mullen et al., 214 Or. 281, 330 P.2d 5, 74 A.L.R.2d 347 (1958). In that case we sustained the action of a city council in denying a conditional use permit. We explained that the council, in passing upon an application for a special use permit, acts as an administrative agency and that its action is presumed to be regular. More specifically we said:

'* * * Its action will be presumed valid, reasonable, correct, taken in knowledge of material facts, justified by the facts, made upon full hearing or after giving all interested parties a reasonable opportunity to be heard and upon appropriate evidence duly considered and properly applied.' 214 Or. at 292, 330 P.2d at 11.

The reasoning supporting this conclusion is adequately developed in that case and need not be repeated here. Although plaintiff has attempted to point out differences between the present case and Jehovah's Witnesses v. Mullen et al., supra, we are of the opinion that the cases are indistinguishable.

In Roseta v. County of Washington, Or., 458 P.2d 405, decided this day, we held that where the county amends a zoning ordinance to permit a use inconsistent with the permissible uses designated in the original ordinance the presumption of regularity usually given to legislative action is not applicable. The same principle was recognized in Smith v. County of Washington, 241 Or. 380, 406 P.2d 545 (1965).

As we explained in the Smith case, 'Even though there is a presumption of legislative regularity when the governing board of a county enacts a change in a zoning ordinance, the antithetical character of spot zoning and its recognized erosive effect upon the comprehensive zoning plan automatically tends to neutralize, if not to overcome, the presumption in the particular case.' 241 Or. at 384, 406 P.2d at 547.

Experience has demonstrated that frequently zone changes are made by governing boards without adequate consideration of the effect which the change will have on the over-all plan. It is known that zone changes are commonly made simply because the change is requested and no one in the neighborhood has an objection to it. Knowing this it would not be realistic to presume in a particular case that the governing board acted regularly in the sense that it duly considered the effect which the change would have on the comprehensive plan.

The same considerations do not obtain however when, as in the case before us, the governing board passes upon an application for a conditional use. The original ordinance itself expressly provides for the specified 'conditional uses' which might be made in the zone. In this sense the granting of an application for a conditional use does not constitute a deviation from the ordinance but is in compliance with it. ³ The Washington County ordinance expressly declares that 'A conditional use shall not be construed to be a zone change * * *.' One author has explained that the 'granting of a conditional use permit or exception permits a use contemplated by the zoning ordinance; a variance permits a use not contemplated by the ordinance except where necessary to avoid hardship.' ⁴ Further, it may be observed that generally the conditional uses specified as permissible in an R--10 zone are uses which are compatible with the purpose of the zone. As the New Jersey Supreme Court observed, 'Exceptions fulfill the practical recognition that certain uses of property are compatible with the essential design of a particular zone although the use is contrary to the restrictions imposed thereon.' ⁵

Thus the Washington County ordinance provides for such compatible uses as auditoriums, boat moorages, cemeteries, churches, colleges, community buildings, golf courses, greenhouses, hospitals, libraries, etc. Because these uses are generally compatible with the design of the zone the possibility that a permitted use will not comport with the comprehensive plan is not as great as it is when a variance or amendment is sought. Nor is there the same likelihood that such uses will be sought for and obtained as a matter of special privilege by those seeking private gain as there is where a variance or amendment is requested.

But more important than these considerations is the fact that the ordinance itself reveals the legislative plan forecasting...