Fasano v. Board of County Com'rs of Washington County

• Citation: 7 Or.App. 176,489 P.2d 693
• Parties: Louis J. FASANO et al., Respondents, v. The BOARD OF COUNTY COMMISSIONERS of WASHINGTON COUNTY and A.G.S. Development Company, a corporation, Appellants.
• Decision Date: 04 January 1972
• Court: Court of Appeals of Oregon

Page 693

489 P.2d 693

7 Or.App. 176

Louis J. FASANO et al., Respondents, v. The BOARD OF COUNTY COMMISSIONERS of WASHINGTON COUNTY and A.G.S. Development Company, a corporation, Appellants.

Court of Appeals of Oregon, Department 2.

Argued and Submitted May 26, 1971.

Decided Oct. 19, 1971.

Rehearing Denied Nov. 9, 1971.

Review Granted Jan. 4, 1972.

Edward J. Sullivan, County Counsel, and Joe D. Bailey, Hillsboro, argued the cause for appellants. With them on the briefs was Carrell F. Bradley, Hillsboro.

Louis J. Fasano, Portland, argued the cause and filed the brief for respondents.

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

FORT, Judge.

Petitioners, homeowners in Washington County, sought, by writ of review, to set aside the granting of a zone change by the Board of Commissioners of Washington County. In holding for petitioners, the trial court found there was insufficient evidence presented to justify the zone change. Defendants appeal.

The tract in question contains approximately 32.7 acres in the east end of Washington County and is owned by defendant A.G.S. Development Company. On January 8, 1970, defendant, desiring to build a trailer court, filed with the Washington County Planning Commission an application for a change of the zone designation from Residential R--7 to Planned Residential P-R. On March 10, 1970, a public hearing was held by the commission. At that time the commission had before it the report and recommendations of the staff of the Planning Department of Washington County in favor of the requested change.

The commission, after hearing, denied the application for lack of a majority vote. The petitioners then appealed to the board of county commissioners. After hearing testimony and considering the evidence presented, a motion to approve the zone change was passed by a three-to-two vote. The following findings of the board of commissioners, taken from the recommendations of the planning department, were enteed:

'1. The proposed use does conform to the residential designation of the plan of development.

'2. The proposed use reflects urbanization of the county and is a method of meeting such organization.

'3. The proposed use allows for increased density in different types of housing to meet the needs of urbanization over that permitted by the existing zone.

'4. The proposed use, along with the recommended conditions of the planning department, would not be materially detrimental to the general health, safety or welfare of the surrounding property owners.'

Petitioners, seeking to have the board's order set aside, obtained the issuance of a writ of review from the Circuit Court of Washington County. Upon trial, the court reversed the order of the board, basing its decision on the ground that there was not a sufficient showing of change of condition to support the change.

In its brief, the appellants assign as sole error that the trial court

'* * * erred in holding that the zone change in question was not in accordance with the comprehensive plan and in holding that it was necessary to show a change of conditions in the area of the subject property.'

In Archdiocese of Portland v. County of Wash., 254 Or. 77, 458 P.2d 682 (1969), the court said:

'In Roseta v. County of Washington, 254 Or. 161, 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.

'* * *

'Absent the dangers incident to 'spot zoning' the presumption of legislative regularity can be given its full effect. * * * We examine the record of the proceedings before the Board only to determine whether those proceedings were fairly conducted in accordance with the requirements of the ordinance and that there was a rational basis for the Board's decision. It is important to bear in mind that in these cases we and the trial court are reviewing the legislative action of a governmental unit engaged in carrying out a land use policy formulated by it. The basis for that action need not be found in 'evidence' as we use that term in connection with the trial of cases before a court. * * *' 254 Or. at 82--83, 85--86, 458 P.2d at 685.

The county adopted a comprehensive plan pursuant to ORS 215.050 and in 1959 made its original zone designation. This did not provide for a P-R district, which was subsequently created by ordinance. The land in question was zoned in 1959 as Residential R--7. No change was made in its classification at the time the P-R classification was added to the 1959 zoning ordinance, and it continued to be...