Baker v. City of Milwaukie

• Decision Date: 01 April 1975
• Citation: 533 P.2d 772,271 Or. 500,75 Or.Adv.Sh. 1068
• Parties: Jeanett I. BAKER, Plaintiff, v. CITY OF MILWAUKIE, an Oregon Municipal Corporation, et al., Defendants, Clifford C. Archer et al., Intervenors.
• Court: Oregon Supreme Court

Page 772

533 P.2d 772

271 Or. 500

Jeanett I. BAKER, Plaintiff, v. CITY OF MILWAUKIE, an Oregon Municipal Corporation, et al., Defendants Clifford C. Archer et al., Intervenors.

Supreme Court of Oregon.

Argued and Submitted Oct. 11, 1974.

Decided April 1, 1975.

Steven R. Schell, Portland, argued the cause for plaintiff. With him on the briefs was Craig M. Chisholm, Portland.

Myer Avedovech, City Atty., Milwaukie, argued the cause and filed a brief for defendants.

Gary M. Bullock, Portland, argued the cause and filed a brief for intervenors.

Edward J. Sullivan, Hillsboro, argued the cause and filed a brief on behalf of the Oregon Environmental Council and the Oregon Chapter of the American Institute of Planners as amici curiae.

William P. Hutchison, Jr., Portland, filed a brief for Oregon Environmental Council as amicus curiae.

R. P. 'Joe' Smith, Portland, filed a brief for Northwest Environmental Defense Center as amicus curiae.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, SLOPER and LEAVY, Justices.

HOWELL, Justice.

This is an appeal from the dismissal of a writ of mandamus. The plaintiff sought to compel the City of Milwaukie to conform a zoning ordinance to its comprehensive plan, to cancel a variance approved by the Milwaukie Planning Commission, and to suspend the issuance of building permits in areas of the city where the zoning ordinance allows a more intensive use than that set forth in the comprehensive plan. The trial court sustained the City's demurrer to the alternative writ. The plaintiff refused to plead further and the court dismissed the writ. The Court of Appeals reversed the action of the trial court but on grounds not substantially in favor of the plaintiff, and plaintiff's petition for review to this court was allowed.

Basically, the petition for the alternative writ states that plaintiff is a landowner in the City of Milwaukie. On October 17, 1968, the City of Milwaukie adopted a zoning ordinance which designated plaintiff's land and the surrounding area 'A 1 B' (residential apartment-business office). This category allowed 39 units per acre. ¹ On November 11, 1969, a comprehensive plan for the City of Milwaukie was adopted by the Planning Commission. This comprehensive plan designated plaintiff's land and the surrounding area as high density residential, allowing 17 units per acre. On January 12, 1970, the Milwaukie City Council passed a resolution adopting the above plan as the comprehensive plan for the City of Milwaukie. ²

On February 27, 1973, without public hearing and against staff recommendation, the Milwaukie City Planning Commission granted a variance authorizing a proposed 95-unit apartment complex near plaintiff's property with one and one-half parking spaces per unit rather than the required two.

Subsequent to the granting of the variance, an application was made for a building permit for the construction of a 102-unit apartment on property immediately adjacent to plaintiff's property. This 102-unit complex would result in 26 units per acre--less than the 39 units allowed by the zoning ordinance but substantially more than the 17 units allowed by the comprehensive plan.

After demand was made on the City Council and the Building Inspector to conform the zoning ordinance to the comprehensive plan, to cancel the variance previously granted, and to suspend the issuance of building permits where the zoning in the city did not conform to the comprehensive plan, the plaintiff brought this proceeding. Her petition alleged, in relevant part:

'VIII

"Even though obligated to do so and even though more than three years have expired between approval of the comprehensive plan and the present, Defendants City Councilmen have not even though they have a duty to do so, taken steps to modify the zoning in the area of concern to conform to the comprehensive plan for such area. Defendant inspector has failed or refused to indicate that he will suspend issuance of a building permit for the area of concern until such time as the zoning of the City of Milwaukie conforms to the comprehensive plan for such city."

The defendants filed a return to the alternative writ in which they state:

'The defendants have not done as they were herein commanded, and the cause of their omission is that there is no obligation that the zoning ordinance of the city of Milwaukie be conformed to the comprehensive plan subsequently adopted by resolution.'

At the same time the defendants demurred to the petition on the grounds that several causes of action were improperly united and that the petition did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer on the grounds that the 'facts set forth in the petition are insufficient to sustain the relief prayed for in the petition.' The trial court did not rule on defendants' demurrer that several causes of action were improperly united. ³

The Court of Appeals reversed solely on the ground that the plaintiff had alleged sufficient facts to support her claim with regard to the improper granting of the variance. ⁴ In all other respects the Court of Appeals held that the facts stated in the petition were insufficient. Baker v. City of Milwaukie, 17 Or.App. 89, 520 P.2d 479 (1974). We granted review to consider the effect of the adoption, by a municipality, of a comprehensive plan on pre-existing and conflicting zoning ordinances.

The Comprehensive Plan is the Controlling Land Use Planning Instrument for the City of Milwaukie

The defendants argue that 'the zoning ordinance would govern land use with a definite and precise requirement, and would control over the comprehensive plan.' Thus the defendants contend that although the City has passed a comprehensive plan, there is no duty to effectuate it through the enactment of conforming zoning ordinances. They further argue that the present conflicting zoning ordinances remain in effect until the City decides to replace them with ordinances which are in accord with the comprehensive plan.

We agree with the plaintiff and the amici curiae (Northwest Environmental Defense Center, Oregon Environmental Council, and Oregon Chapter of the American Institute of Planners) that the position of defendants evidences a fundamental misunderstanding of the relationship between planning and zoning.

In order to answer the question of whether a city, once it has adopted a comprehensive plan, has a duty to zone in accord with that plan, it is first necessary to discuss the relationship between planning and zoning.

This court has recently recognized the controlling effect of the comprehensive plan on land use planning in a community:

'The basic instrument for county or municipal land use planning is the 'comprehensive plan.' * * * The plan has been described as a general plan to control and direct the use and development of property in a municipality. * * *' Fasano v. Washington Co. Comm., 264 Or. 574, 582, 507 P.2d 23, 27 (1973) (citations omitted).

Zoning, on the other hand, is the means by which the comprehensive plan is effectuated.

This servient relationship of zoning to planning was acknowledged in Oregon in 1919 with the passage of the requirement that municipal zoning be 'in accord with a well considered plan.' ⁵ See Or. Laws 1919, ch. 300; ORS 227.240(1). "Instead of being the city plan, for which it is so often mistaken, * * * zoning is but one of the devices for giving effect to it." Haar, The Master Plan: An Impermanent Constitution, 20 Law & Contemp.Prob. 353, 362 (1955). ⁶ See also Udell v. Haas, 21 N.Y.2d 463, 288 N.Y.S.2d 888, 235 N.E.2d 897 (1968).

Some writers have likened the comprehensive plan to a constitution. Thus it has been said that a comprehensive plan is a 'constitution for all future development within the city.' O'Loane v. O'Rourke, 231 Cal.App.2d 774, 782, 42 Cal.Rptr. 283, 288 (1965).

'* * * If the plan is regarded not as the vest-pocket tool of the planning commission, but as a broad statement to be adopted by the most representative municipal body--the local legislature--then the plan becomes a law through such adoption. A unique type of law, it should be noted, in that it purports to bind future legislatures when they enact implementary materials. So far as impact is concerned, the law purports to control the enactment of other laws (the so-called implementary legislation) solely. It thus has the cardinal characteristic of a constitution. * * *' Haar, supra at 375.

While this analogy between a comprehensive plan and a constitution may be helpful in determining the relationship between planning and zoning, it must be remembered that the comprehensive plan is flexible and subject to change when the needs of the community demand. '(U)nlike (a constitution) it is subject to amendatory procedures not significantly different from the course followed in enacting ordinary legislation.' Haar, supra at 375.

In the instant case, as noted above, the zoning ordinance was passed in October, 1968. The comprehensive plan was adopted by the Planning Commission in November, 1969, and adopted by the City Council in January, 1970. The plan recites:

'The City of Milwaukie has adopted a new zoning ordinance (apparently referring to the ordinance enacted in October, 1968) that was developed in conjuntion with the Comprehensive Plan. Basic features of the new ordinance as adopted are consistent with the Plan described in this report.'

Plaintiff alleges that an examination of the ordinance and the plan shows that a conflict exists, at least in the area in question in this case. ⁷

The defendants argue, and the Court of Appeals held, that there is no duty ⁸ to adopt a written comprehensive plan such as that adopted by the City of Milwaukie. However, this begs the question. The fact is that the City of Milwaukie Has adopted a comprehensive plan. And that plan is 'the basic instrument for county or municipal land use planning.' Fasano v....