Bienz v. City of Dayton

• Decision Date: 06 June 1977
• Citation: 566 P.2d 904,29 Or.App. 761
• Parties: Fred BIENZ, Appellant, v. CITY OF DAYTON, an Oregon Municipal Corporation, Paul Jellum, its Mayor, Paul Jensen, Norman McGrew, Morris Thacker, Duane Barnes, John Pacheco, and Rex McElwain, the City Council Members, the Building Inspector, City Recorder, Howard Williams, the City Engineer, and J. Gregcin, Inc., a corporation, Respondents.
• Court: Oregon Court of Appeals

Page 904

566 P.2d 904

29 Or.App. 761

Fred BIENZ, Appellant, v. CITY OF DAYTON, an Oregon Municipal Corporation, Paul Jellum, its Mayor, Paul Jensen, Norman McGrew, Morris Thacker, Duane Barnes, John Pacheco, and Rex McElwain, the City Council Members, the Building Inspector, City Recorder Howard Williams, the City Engineer, and J. Gregcin, Inc., a corporation, Respondents.

Court of Appeals of Oregon.

Argued and Submitted March 28, 1977.

Decided June 6, 1977.

Herbert H. Anderson, Portland, argued the cause for appellant. With him on the briefs were Harold C. Pope and Dezendorf, Spears, Lubersky & Campbell, Portland.

No appearance for respondent City of Dayton, an Oregon municipal corporation, Paul Jellum, its Mayor, Paul Jensen, Norman McGrew, Morris Thacker, Duane Barnes, John Pacheco, and Rex McElwain, the City Council Members, the Building Inspector, City Recorder, and Howard Williams, the City Engineer.

Eugene C. Tish, Portland, argued the cause for respondent J. Gregcin, Inc., a corporation. With him on the brief were C. David Hall and Rask & Herrerin, Portland.

Before SCHWAB, C. J., and LEE and JOHNSON, JJ.

JOHNSON, Judge.

Petitioner appeals a judgment dismissing his petition for a writ of review of decisions of the respondent city approving a tentative plan for a proposed subdivision and a subsequent modification to the approved tentative plan.

Petitioner makes six assignments of error: (1) the trial court's grant of a motion to strike portions of the petition; (2) the trial court's denial of petitioner's objections to return to the writ; (3) the city's alleged failure to comply with its own ordinance and state statutes requiring coordination with affected governmental agencies; (4) the city's alleged failure to follow proper procedures in granting variances; (5) violation of due process because of the absence of a verbatim record of the evidentiary hearing; and (6) the trial court's refusal to review a subsequent decision modifying the tentative plan. We affirm the trial court's decision as to the city's approval of the tentative plan, but reverse for further proceedings with respect to the modification.

The events leading and subsequent to the respondent city's decision approving the tentative plan are as follows:

On December 13, 1974 defendant J. Gregcin, Inc., the developer, applied to the city of Dayton for approval of a 52 unit residential subdivision. The tentative plan was approved by the city council in January 1975. Building permits were subsequently granted for ten units which were then constructed. On November 10, 1975 the Yamhill County Circuit Court issued a writ of mandamus ordering the city to vacate the approval of the subdivision and cancel the building permits. The grounds for the writ was that the city's subdivision ordinance did not comply with ORS 92.010 to 92.160 governing standards and procedures for approving subdivisions.

On November 20, 1975 the city enacted a new subdivision ordinance and on November 24, 1975 the developer resubmitted its application for approval of the tentative plan. The city planning commission held an evidentiary hearing on the renewed application on December 29, 1975. On January 5, 1976 the developer petitioned for variances from the city subdivision ordinance and the planning commission met and approved on that date both the tentative plan and the variances. Petitioner then appealed to the city council. The council then requested the planning commission prepare written findings. The planning commission held another meeting on February 5, 1976 "to reconsider the meeting of January 5, 1976," reaffirmed its earlier approval of the tentative plan and variances and prepared written findings.

On February 9, the city council heard oral argument, considered the appeal de novo on the record, and affirmed the planning commission. On March 8, 1976 the city approved a modification of the tentative plan changing the placement of the water lines.

Application of Fasano and Finality of the Tentative Plan

There are two questions which require resolution before proceeding to a discussion of petitioner's assignments of error. (1) Are the due process standards announced in Fasano v. Washington Co. Com'rs, 264 Or. 574, 507 P.2d 23 (1973) applicable to a city's administration of a subdivision ordinance. (2) Is the approval of a tentative plan under a subdivision ordinance a final order reviewable in a writ of review proceeding. Both questions must be answered in the affirmative.

The parties assume Fasano applies, but we can find no precedent. Fasano was a zone change case and the decisions following Fasano apply either to the administration of comprehensive plans or zoning laws. A major partition subdivision such as we have here is a division of a tract of land into four or more lots and includes the creation of roads and streets. ¹ However, applicability of Fasano is not determined by labels, but by substance. The determinative criteria is whether the approval of a tentative subdivision plan is a land use decision and is judicial in nature. Fasano v. Washington Co. Com'rs, supra; Auckland v. Bd. of Com'rs, Mult. Co., 21 Or.App. 596, 536 P.2d 444 (1975).

It is evident that most applications for subdivision contemplate a significant change in land use, often of greater magnitude than contemplated in a zone change proceeding. In the present case the tentative plan contemplates in a city of 1,215 population to convert several acres of undeveloped land into a 52 lot residential area housing 224 people. Subdivision laws are similar in purpose to zoning as an exercise of police power to assure orderly land use. Significantly, here the city has adopted a comprehensive land use plan, but has not yet enacted zoning ordinances. Presumably, the city places a higher priority on subdivision control than zoning as a device for insuring implementation of the comprehensive plan. The city subdivision ordinance, following the mandate of ORS 92.044, states as its purpose:

"* * * to assure adequate width and arrangement of streets, to coordinate proposed development with plans for utilities and other public facilities, to avoid undue congestion of population, to assure adequate sanitation and water supply, to provide for the protection, conservation, and proper use of land, for securing safety from fire, flood, slides, pollution, drainage or other dangers, for providing adequate light and air, recreation, education, adequate transportation, and to protect in other ways the public health, safety and welfare."

It is likewise clear that the legislature considered subdivision approval an integral part of land use planning and control. ORS 92.010 to 92.160 are a comprehensive legislative scheme regulating subdivisions and prescribing requirements that local government must follow in adopting subdivision ordinances and approving or disapproving specific subdivisions. ORS 92.044(6) requires that local subdivision ordinances and decisions thereunder must comply with the city's comprehensive plan. In addition, ORS 197.250 provides that:

"All comprehensive plans and any zoning, subdivision and other ordinances and regulations adopted by a state agency, city, county or special district to carry out such plans shall be in conformity with the state-wide planning goals within one year from the date such goals are approved by the commission." (Emphasis supplied.)

Further, if a city or county subdivision ordinance fails to comply with statewide planning goals, the Land Conservation and Development Commission shall prescribe and may administer "comprehensive plans and zoning, subdivision or other ordinances * * *." ORS 197.325(1).

City approval of a subdivision is not only a land use decision, but is judicial in nature in that it "affect(s) specific individuals and involve(s) application of general rules to individual interests." Auckland v. Bd. of Com'rs Mult. Co., supra, 21 Or.App. at 601, 536 P.2d at 447. The persons who are directly affected usually are the individual subdivider and the adjoining landowners.

The statutes and city ordinance contemplate a two-step process before a subdivision is ultimately approved or disapproved. First the subdivider submits to the city planning commission a tentative plan for the proposed subdivision. The tentative plan need not be a finished drawing, but merely a preliminary sketch showing the general design of the proposed subdivision. ORS 92.040; Ord. §§ 6-15. ² However, a city cannot approve a tentative plan if the proposed subdivision does not comply with certain requirements concerning lot sizes, streets and roads, utilities, recreation areas and other improvements, and conform to the comprehensive plan and applicable zone laws. ORS 92.090; Ord. §§ 28-38. Likewise the city must coordinate its approval of the tentative plan with other affected governmental agencies. ORS 92.044(1) (c). If the tentative plan is approved, the subdivider may then submit a final plat which is reviewed by the city engineer. ORS 92.050 to 92.100; Ord. §§ 16-22. If approved by the city engineer, it is certified to the planning commission and then can be recorded. Ord. § 22. In spite of this two-step process, the land use decisions to which Fasano apply are made at the time of the approval or disapproval of the tentative plan, and such decisions constitute final decisions reviewable by writ of review.

Any actions by the city of a land use nature taken after approval of the tentative plan preparatory to filing the final plat are ministerial. Arguably, since approval of the final plat is essentially a ministerial act, we should await this final act before allowing judicial review. This would be analogous to a trial court which renders a decision from the bench but the decision is not appealable until a final order is entered. The analogy is not tenable because the actions taken subsequent to approval of a tentative plan are not merely a final formality in a...