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

• Decision Date: 02 March 1973
• Citation: 264 Or. 574,96 Or.Adv.Sh. 1059,507 P.2d 23
• Parties: Louis J. FASANO et al., Respondents, v. The BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY and A. G. S. Development Company, a corporation, Petitioners.
• Court: Oregon Supreme Court

Page 23

507 P.2d 23

264 Or. 574

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

Supreme Court of Oregon, In Banc.

Argued and Submitted March 1, 1972.

Reargued Nov. 15, 1972.

Decided March 2, 1973.

Edward J. Sullivan, Washington County Counsel, Hillsboro, argued and reargued the cause for petitioners. With him on the briefs were William Bradley Duncan, Asst. County Counsel, Carrell F. Bradley, Joe D. Bailey, and Schwenn, Bradley, Batchelor & Bailey, Hillsboro.

Louis J. Fasano, Portland, argued and reargued the cause for respondents. With him on the briefs were Veatch, Lovett & Stiner, Portland.

Donald C. Ashmanskas, Beaverton, argued the cause for amici curiae on reargument. With him on the briefs were James M. Mattis, Eugene, Merle Long, Albany, and Edward C. Harms, Jr., Springfield, on behalf of the League of Oregon Cities. Also on the briefs were Duane R. Ertsgaard, Salem, Roy E. Adkins, Eugene, Richard Crist, West Linn, Paul Mackey, Portland, and Gary Rueter, McMinnville, on behalf of the Association of Oregon Counties; and Frank L. Whitaker, Portland, on behalf of Oregon Chapter, American Institute of Planners.

HOWELL, Justice.

The plaintiffs, homeowners in Washington county, unsuccessfully opposed a zone change before the Board of County Commissioners of Washington County. Plaintiffs applied for and received a writ of review of the action of the commissioners allowing the change. The trial court found in favor of plaintiffs, disallowed the zone change, and reversed the commissioners' order. The Court of Appeals affirmed, 489 P.2d 693 (1971), and this court granted review.

The defendants are the Board of County Commissioners and A.G.S. Development Company. A.G.S., the owner of 32 acres which had been zoned R--7 (Single Family Residential), applied for a zone change to P--R (Planned Residential), which allows for the construction of a mobile home park. The change failed to receive a majority vote of the Planning Commission. The Board of County Commissioners approved the change and found, among other matters, that the change allows for 'increased densities and different types of housing to meet the needs of urbanization over that allowed by the existing zoning.'

The trial court, relying on its interpretation of Roseta v. County of Washington, 254 Or. 161, 458 P.2d 405, 40 A.L.R.3d 364 (1969), reversed the order of the commissioners because the commissioners had not shown any change in the character of the neighborhood which would justify the rezoning. The Court of Appeals affirmed for the same reason, but added the additional ground that the defendants failed to show that the change was consistent with the comprehensive plan for Washington county.

According to the briefs, the comprehensive plan of development for Washington county was adopted in 1959 and included classifications in the county for residential, neighborhood commercial, retail commercial, general commercial, industrial park and light industry, general and heavy industry, and agricultural areas.

The land in question, which was designated 'residential' by the comprehensive plan, was zoned R--7, Single Family Residential.

Subsequent to the time the comprehensive plan was adopted, Washington county established a Planned Residential (P--R) zoning classification in 1963. The P--R classification was adopted by ordinance and provided that a planned residential unit development could be established and should include open space for utilities, access, and recreation; should not be less than 10 acres in size; and should be located in or adjacent to a residential zone. The P--R zone adopted by the 1963 ordinance is of the type known as a 'floating zone,' so-called because the ordinance creates a zone classification authorized for future use but not placed on the zoning map until its use at a particular location is approved by the governing body. The R--7 classification for the 32 acres continued until April 1970 when the classification was changed to P--R to permit the defendant A.G.S. to construct the mobile home park on the 32 acres involved.

The defendants argue that (1) the action of the county commissioners approving the change is presumptively valid, requiring plaintiffs to show that the commissioners acted arbitrarily in approving the zone change; (2) it was not necessary to show a change of conditions in the area before a zone change could be accomplished; and (3) the change from R--7 to P--R was in accordance with the Washington county comprehensive plan.

We granted review in this case to consider the questions--by what standards does a county commission exercise its authority in zoning matters; who has the burden of meeting those standards when a request for change of zone is made; and what is the scope of court review of such actions?

Any meaningful decision as to the proper scope of judicial review of a zoning decision must start with a characterization of the nature of that decision. The majority of jurisdictions state that a zoning ordinance is a legislative act and is thereby entitled to presumptive validity. This court made such a characterization of zoning decisions in Smith v. County of Washington, 241 Or. 380, 406 P.2d 545 (1965):

'Inasmuch as ORS 215.110 specifically grants to the governing board of the county the power to amend zoning ordinances, a challenged amendment is a legislative act and is clothed with a presumption in its favor. Jehovah's Witnesses v. Mullen et al., 214 Or. 281, 292, 330 P.2d 5, 74 A.L.R.2d 347 (1958), appeal dismissed and cert. denied, 359 U.S. 436, 79 S.Ct. 940, 3 L.Ed.2d 932 (1959).' 241 Or. at 383, 406 P.2d at 547.

However, in Smith an exception to the presumption was found and the zoning held invalid. Furthermore, the case cited by the Smith court, Jehovah's Witnesses v. Mullen et al., supra, at least at one point viewed the contested zoning in the case as an administrative as opposed to legislative act.

At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. There is a growing judicial recognition of this fact of life:

'It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government.' Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529, 533 (1962) (Klingbiel, J., specially concurring).

The Supreme Court of Washington, in reviewing a rezoning decision, recently stated:

'Whatever descriptive characterization may be otherwise attached to the role or function of the planning commission in zoning procedures, e.g., advisory, recommendatory, investigatory, administrative or legislative, it is manifest * * * that it is a public agency, * * * a principle (sic) and statutory duty of which is to conduct public hearings in specified planning and zoning matters, enter findings of fact--often on the basis of disputed facts--and make recommendations with reasons assigned thereto. Certainly, in its role as a hearing and fact-finding tribunal, the planning commission's function more nearly than not partakes of the nature of an administrative, quasi-judicial proceeding, * * *.' Chrobuck v. Snohomish County, 78 Wash.2d 884, 480 P.2d 489, 495--496 (1971).

Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test. An illustration of an exercise of legislative authority is the passage of the ordinance by the Washington County Commission in 1963 which provided for the formation of a planned residential classification to be located in or adjacent to any residential zone. An exercise of judicial authority is the county commissioners' determination in this particular matter to change the classification of A.G.S. Development Company's specific piece of property. The distinction is stated, as follows, in Comment, Zoning Amendments--The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130 (1972):

'* * * Basically, this test involves the determination of whether action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.' 33 Ohio St.L.J. at 137.

We reject the proposition that judicial review of the county commissioners' determination to change the zoning of the particular property in question is limited to a determination whether the change was arbitrary and capricious.

In order to establish a standard of review, it is necessary to delineate certain basic principles relating to land use regulation.

The basic instrument for county or municipal land use planning is the 'comprehensive plan.' Haar, In Accordance with a Comprehensive Plan, 68 Harv.L.Rev. 1154 (1955); 1 Yokley, Zoning Law and Practice, § 3--2 (1965); 1 Rathkopf, The Law of...