Commonwealth Properties, Inc. v. Washington County

• Decision Date: 01 August 1978
• Docket Number: No. 36-102,36-102
• Citation: 35 Or.App. 387,582 P.2d 1384
• Parties: COMMONWEALTH PROPERTIES, INC., Respondent, v. WASHINGTON COUNTY, Alan J. Patterson, Richard C. Heisler, Virginia Dagg, Ray Miller, Michael Shepherd, Joann Johansen, and Roger Thomssen, Appellants. ; CA 7031.
• Court: Oregon Court of Appeals

Page 1384

582 P.2d 1384

35 Or.App. 387

COMMONWEALTH PROPERTIES, INC., Respondent, v. WASHINGTON COUNTY, Alan J. Patterson, Richard C. Heisler Virginia Dagg, Ray Miller, Michael Shepherd, Joann Johansen, and Roger Thomssen, Appellants.

No. 36-102; CA 7031.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1977.

Decided Aug. 1, 1978.

Gregory S. Hathaway, Asst. County Counsel for Washington County, Hillsboro, argued the cause for appellants.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were John Wiley Gould, and Dezendorf, Spears, Lubersky & Campbell, Portland.

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

SCHWAB, Chief Judge.

This is a writ of review proceeding challenging the action of the Washington County Board of County Commissioners (Board) denying tentative approval of a proposed subdivision plat submitted by Commonwealth Properties, Inc. (Commonwealth). ¹ The circuit court held that the Washington County Comprehensive Framework Plan was not applicable to the proposed subdivision and, alternatively, that even if the plan were applicable, its broadly worded general policy statements were too vague to serve as standards by which approval of the proposed subdivision plat could be granted or denied. For those reasons, the court held the Board could not refuse tentative approval. The Board appeals from that order.

In June, 1974, Commonwealth, a subdivider, applied to the Washington County Planning Commission for tentative approval of a proposed subdivision plat located within the county. In May, 1975, the Subdivision Committee of Washington County (apparently a subcommittee of the planning commission) recommended that tentative approval of the subdivision plat be granted, subject to certain conditions which Commonwealth agreed to comply with.

In June, 1975, the staff of the Washington County Planning Commission issued a report recommending that Commonwealth's request for tentative approval of its proposed subdivision plat be denied. Subsequently, the Washington County Planning Commission, after holding a public hearing, voted to deny Commonwealth tentative approval of its proposed subdivision plat. Commonwealth appealed the planning commission's denial to the Board. In August, 1975, the Board voted to affirm the decision of the planning commission. In so doing, the Board made the following findings:

"* * *

"It appearing to the Board that the findings of the Planning Department and the Board of County Commissioners should be adopted as the basis for the Board's decision, and the Board being fully advised in the premises; it is, therefore

"RESOLVED AND ORDERED that the findings of the Planning Department indicated in Exhibit 'A' attached to and made a part of this Resolution and Order are adopted as findings of this Board and the Board makes further and additional findings as follows:

"1. That a more detailed drainage study is needed in view of the slopes in the area and the amount of property that will be black topped for roads.

"2. That due to the slopes, lot sizes and lot shapes some lots may not provide building sites without variances from the zone requirements.

"3. That the goals of the Comprehensive Framework Plan to provide parks, bike paths, greenways and open spaces have not been addressed in the proposal.

"4. That the proposal might be appropriate for flat land on the valley floor but does not take into account the unique characteristics of this site, including slopes, water runoff and heavy vegetation as required by the Comprehensive Framework Plan.

"5. That the deficiencies of the proposal as noted in the staff and Board findings do not mandate a planned unit development on the property or cluster housing.

"6. That the subdivision ordinance provides alternatives by which the deficiencies noted above may be resolved and it is further

"RESOLVED AND ORDERED that based upon the foregoing findings and conclusions the application of Commonwealth Properties, Inc. for preliminary approval of Cedarglen Subdivision is hereby denied."

Exhibit A, referred to above by the Board, provided in pertinent part:

"STAFF FINDINGS :

"* * *

"2. The subject site is a unique community element due to its natural character. The substantial vegetation, including old growth fir and cedar, plus the drainage way and slopes present both severe constraints to development and also great opportunity for creative approaches to site utilization.

"a. The applicant has noted that there are over 2,000 trees on the site of over 8 caliper. In identifying large trees for preservation, 6 caliper is commonly utilized as a cut-off point.

"b. Slopes on the site range up to 20%.

"c. The drainage way which traverses the site is not identified as a 'flood hazard' or 'flood plain' area by the Public Works Department 'Flood Plain Series'. However, soil data indicates severe limitations in the area due to poor drainage.

"3. The proposed subdivision plan conflicts with natural site characteristics because:

"a. Approximately 13% Of the trees over 8 caliper would be removed by the roads;

"b. Assuming that 35% Of any lot would be cleared for a house and driveway, a total of half of the vegetation on the site could be expected to be removed;

"c. The road crossing of the drainageway requires a fill of about 9 feet;

"d. Cuts for roads range up to 7 feet;

"e. Slopes on roads range up to 20% In two locations;

"f. 'Flag lots' have been created with 50 foot road frontage, making land use and preservation of trees inefficient.

"4. The proposed subdivision plan conflicts with the above noted Framework Plan goals with respect to the County's long range position of preserving the character of significant community elements, and of developing living environments in harmony with natural features of the county.

"5. The proposed subdivision plan also conflicts with the above noted Framework Plan policies:

" # 27, Through lack of preservation of the natural character of the site and by not utilizing the Planned Unit Development process which could substantially increase development compatability;

" # 30, Through conflict with natural features of the site;

" # 37, Through applying a conventional RU-4 subdivision to the site without respect for its natural qualities " # 42, Through not utilizing the flexibility contained within the P.U.D. provision;

" # 190, Through not utilizing the drainageway on the site for its potential in a community greenway system;

" # 194, Through not preserving the character of the drainageway;

" # 196, Through not fully utilizing the drainageway in a broader natural drainage system;

" # 197, Through not preserving existing vegetation within site development;

"# 200, Through not utilizing available means (P.U.D. provisions) to preserve these unique natural features; and

"# 224, Through not retaining distinctive natural features in the development.

" * * *

"RECOMMENDATION:

"Based on the above findings of conflict of the proposal with county policies relating to compatible development, and since the applicant has had ample opportunity and staff assistance to generate a development sensitive to the site, the staff recommends denial of the proposed preliminary plat * * *.

" * * *."

Following the Board's denial, Commonwealth filed a petition for writ of review in circuit court. In a consolidated pretrial order, the parties stipulated that the proposed subdivision plat complied with all the lot size and use requirements of the zoning ordinance applicable to the area in which the subdivision was to be located and that the zoning classification of the area was in compliance with the Washington County Comprehensive Framework Plan.

The Board first contends that the circuit court erred in holding that Commonwealth's proposed subdivision was not required to comply with the policies enunciated in the Washington County Comprehensive Framework Plan. We agree with the Board's contention, as does Commonwealth itself. ORS 215.416(3), which deals with the procedures to be followed by counties in authorizing various types of land development including subdivisions, See ORS ch. 215, specifically states that:

"The application shall not be approved if the proposed use of land is found to be in conflict with the comprehensive plan of the county and other applicable ordinances * * *."

ORS ch. 92 prescribes the statutory scheme for the creation and approval of subdivisions. ORS 92.044(6) and 92.090(2)(c), when read together, lead to the same conclusion as does ORS 215.416(3):

"Any ordinance or regulation adopted under this section shall comply with the comprehensive plan for the city or county adopting the ordinance or regulation." ORS 92.044(6).

" * * *

"(2) No tentative plan for a proposed subdivision and no tentative plan for a proposed major partition shall be approved unless:

" * * *

"(c) The tentative plan complies with the applicable zoning ordinances and regulations and the ordinances or regulations adopted under ORS 92.044 that are then in effect for the city or county within which the land described in the plan is situated.

" * * *." ORS 92.090.

The Board next contends that the circuit court erred in also holding that Commonwealth was not required to comply with the county comprehensive framework plan because the plan contained only undefined, broadly worded general policy statements which were too vague to be capable of specific application to the proposed subdivision. The Board argues that a county comprehensive plan, by its very nature, must contain broadly worded general policy statements because the plan is designed to govern a wide variety of future development and differing geographic contexts within a county. To require such a plan to contain precise and meticulous decision- making criteria, the Board contends, would defeat the very purpose of the plan. The Board contends that Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963); McCann v. OLCC, 27 Or.App....