Duddles v. City Council of West Linn

• Decision Date: 15 July 1975
• Citation: 75 Adv.Sh. 1652,21 Or.App. 310,535 P.2d 583
• Parties: Ralph DUDDLES et al., Appellants-Cross-Respondents, v. The CITY COUNCIL OF WEST LINN et al., Respondents, Val West and Bob Chappel, Respondents-Cross-Appellants.
• Court: Oregon Court of Appeals

Page 583

535 P.2d 583

21 Or.App. 310

Ralph DUDDLES et al., Appellants-Cross-Respondents, v. The CITY COUNCIL OF WEST LINN et al., Respondents Val West and Bob Chappel, Respondents-Cross-Appellants.

Court of Appeals of Oregon.

Argued and Submitted March 19, 1975.

Decided May 12, 1975.

Rehearing Denied June 18, 1975.

Review Denied July 15, 1975.

Walter L. Crow, Jr., Portland, argued the cause for respondents-cross-appellants. With him on the brief were William L. Dickson, and Pozzi, Wilson & Atchison, Portland.

William A. Masters, Portland, filed a brief amicus curiae for Northwest Environmental Defense Center.

Robert M. Greening, Jr., Portland, argued the cause for appellants-cross- respondents. With him on the briefs were Kennedy & King, Portland.

John H. Hammond, Jr., Oregon City, argued the cause and filed the brief for respondents.

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

SCHWAB, Chief Judge.

This writ of review proceeding presents numerous questions relevant to the validity of a zone-change decision. Respondents West and Chappel applied to the respondent city council to change the zoning applicable to certain property they owned from residential to commercial as the first step toward construction of a shopping center. After hearing, the city council granted the requested change. Petitioners challenged that zone change by way of this proceeding. The circuit court resolved all issues against petitioners and they now appeal.

The significant preliminary questions involve the standing required to maintain this type of action, and the procedures by which standing should be determined. On the merits the significant questions are whether a public need for the zone change was proven as required by Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), and whether the zone change is consistent with the comprehensive plan as required by Fasano and Baker v. City of Milwaukie, 75 Or.Adv.Sh. 1068, 533 P.2d 772 (1975).

I. JOINDER.

There is one minor issue that should first be considered because of its bearing on the standing questions: the issue of whether the circuit court erred in denying a motion for an order permitting the joinder of Mary McDermott as a co-petitioner.

The petition for the writ of review was filed and the writ issued on November 21, 1973. On December 6, respondents West and Chappel moved for an order quashing service of the writ on the ground that the petitioners 'lack standing because of the remoteness of their real property from the real property described in the petition herein.' On January 10, 1974, petitioners moved for an order permitting joinder of Mary McDermott as a co-petitioner. The apparent purpose of this motion was to strengthen the petitioner's standing position, a question then unresolved in the trial court.

The motion to join McDermott was accompanied by her affidavit, alleging:

'* * * I received notification from the City of West of Linn of a proposed zone change for the property which is the subject of this law suit * * *. ¹

'* * *

'* * * I attended the public hearings at which the proposed use and proposed zone change were discussed before the West Linn City Council, and that I spoke in opposition to such change and such use at those hearings.

'* * *

'* * * (M)y property is located very near the proposed zone change and shopping center.

'Therefore, I am vitally interested in the subject matter of this law suit and in the belief requested by the petition for writ of review.'

The motion to join McDermott was denied by the trial court. This is assigned as error by petitioners.

We have difficulty understanding respondents' arguments in support of the trial court's ruling. ORS 13.160 allows joinder of all 'persons having an interest in the subject of the suit, and in obtaining the relief demanded.' ORS 16.370 permits amendment of a pleading as a matter of course at any time 'before the period for answering it shall expire.' Once a writ of review has been issued, the only answer to it is the return with a certified copy of the record. ORS 34.060. Before January 10, when petitioners moved to join McDermott, the trial court had extended the time for return to the writ to February 15, as permitted by ORS 16.050. Hence, it would seem that petitioners should have been permitted to amend as a matter of course, ORS 16.370, to add McDermott as a co-petitioner.

Alternatively, ORS 16.390 permits amendments of a pleading 'at any time before trial,' including amendment 'by adding the name of a party.' The court's discretion in passing on a motion to amend 'must be exercised in the furtherance of justice.' Morrill v. Rountree, 242 Or. 320, 325, 408 P.2d 932, 935 (1965). Assuming the truth of the McDermott affidavit, not controverted by respondents, we perceive no way in which justice is furthered by denying her joinder. Petitioners did not seek to change the substance of the petition for writ of review, of which respondents had actual notice. The fact that petitioners sought to add a party who would conceivably meet respondents' standing objection does not justify denial of the motion. After all, most amendments to most pleadings are designed to minimize or negate an objection raised by the opposite party.

Respondents argue the motion to join McDermott was 'not timely,' contending it was made more than '60 days from the date of the decision or determination sought to be reviewed.' ORS 34.030. On September 27, 1973, after hearing the evidence, a majority of the city council voted in favor of an oral motion to grant the requested zone change. The following November 14 the city council formally adopted an ordinance that effectuated the zone change. Respondents would begin computing the 60-day limitation period of ORS 34.030 from September 27. Respondents are incorrect. The orally announced decision of a judge does not begin the limited period for appeal; only the entry of a formal written judgment has that effect. Here, by analogy, the orally announced decision of the city council was not a critical event; instead, the 60-day limitation period began when the city council rezoned the property in question by ordinance adopted on November 14. Thus, the motion to join McDermott filed on January 10 was made within the statutory 60-day period for filing a petition for writ of review. ² The motion to join McDermott was timely. It should have been allowed.

II. THE MERITS.

Ordinarily, we would next consider preliminary questions, such as standing, if they were dispositive. On the record here presented, however, we find it impossible to finally resolve the standing questions. See, Part III, infra. Since a remand is necessary, since we have determined McDermott should be allowed to be joined as a co-petitioner, since we think it more likely than not that McDermott will be found to have standing, ³ and since all parties are probably interested in the expeditious conclusion of this litigation, ⁴ we will state our views on the merits. And we discuss the merits at this point because much of this discussion is necessary background to consideration of the standing questions.

A. The Facts.

Respondents West and Chappel own a large tract of land on the west side of Portland Road (Highway 43) in the Robinwood section of West Linn. Initially, it was zoned R--10 (single family residential-low density). Rather than developing the property as permitted by the existing zoning, West and Chappel proposed constructing some homes, some apartments and a shopping center. The change from all homes to part homes/part apartments necessitated a zone change from R--10 to PD, not here in question.

What is in question is the rezoning of about six acres of the West-Chappel property from R--10 (residential) to C--D (commercial).

The West Linn Comprehensive Plan contemplates eventual full commercial and civic development in the downtown area, now partially residential. Around the downtown area will be six 'closely knit neighborhood units' generally residential in nature. The plan provides that each of these neighborhoods shall have one commercial center: 'These neighborhood commercial centers should be compact, efficient, properly related to surrounding development, and should not result in highway congestion.' The Plan specifically prohibits scattered commercial development along Highway 43.

Consistent with the Plan, the West Linn Zoning Ordinance zones most of the Robinwood neighborhood low density residential, and provides for a commercial center for that neighborhood. The area zoned for commercial development is on the east side of Highway 43, directly across the highway from the subject property. It is zoned C--D (district commercial). It is referred to in the record as the 'Graybill property.' ⁵

B. Proven Need.

Fasano requires parties seeking a zone change, here West and Chappel, to prove 'that there is a public need for the kind of change in question.' 264 Or. at 586, 507 P.2d at 29. 'The more drastic the change,' here from low density residential to commercial, 'the greater will be the burden of' proof. 264 Or. at 586, 507 P.2d at 29.

In general, there is merit to petitioners' contention that since the Comprehensive Plan and Zoning Ordinance both provide for a neighborhood shopping center--the undeveloped Graybill property directly across the highway from the subject property--it is impossible to show a public need to rezone the subject property from residential to commercial. However, in this case there is evidence in the record from which the city council could conclude that the area already zoned for commercial development was: (1) too small for feasible development; ⁶ and (2) not suited for commercial development because of its topography. Given that the Plan and Zoning Ordinance contemplate a neighborhood shopping center and that the property previously zoned for commercial development may be insufficient, there is evidence from which the city council could conclude that...