Fifth Ave. Corp. v. Washington County, By and Through Bd. of County Com'rs
| Citation | 581 P.2d 50,282 Or. 591 |
| Parties | FIFTH AVENUE CORPORATION, an Oregon Corporation, Respondent, v. WASHINGTON COUNTY, a political subdivision of the State of Oregon, By and Through its BOARD OF COUNTY COMMISSIONERS, consisting of Burton Wilson, Virginia Dagg, Rod Roth, John Anicker and Ray Miller and Martin Cramton, Planning Director for Washington County, Oregon, Petitioner. |
| Decision Date | 20 June 1978 |
| Court | Supreme Court of Oregon |
[282 Or. 592-B] Lawrence R. Derr, Hillsboro, argued the cause and submitted a brief for petitioner.
Stephen T. Janik, Portland, argued the cause for respondent. With him on the brief were Davies, Biggs, Strayer, Stoel & Boley, Portland.
Frank C. McKinney, Salem, filed an amicus curiae brief for League of Oregon Cities and Ass'n of Oregon Counties.
Plaintiff is an Oregon corporation which owns approximately 20 acres of undeveloped land (subject property) in an unincorporated area of Washington County. When plaintiff purchased the subject property in 1965, its zoning designation allowed the construction of a "district shopping center" 1 of the type which plaintiff was planning to build.
On November 6, 1973, the Washington County Board of Commissioners (Board) enacted Zoning Ordinance 125, which extensively revised the zoning system of the whole county. The new designation of the subject property no longer allowed uses as intensive as a district shopping center. On November 27, 1973, the Board adopted a new Comprehensive Plan (1973 Plan), which designated various parcels of the subject property "medium density residential," "neighborhood commercial," "greenway area," and "transit station." On October 14, 1975, plaintiff applied to the county for a building permit to construct a district shopping center. The county denied the application on the ground that such use was not allowed under Ordinance 125.
On December 23, 1974, plaintiff sought a declaratory judgment that both the 1973 Plan and Ordinance 125 In their entirety and as applied to the subject property were invalid. In addition, plaintiff sought damages for inverse condemnation. The county and its board members were named as defendants. In this opinion, reference to "defendants" or "defendant" will be to Washington County unless otherwise indicated.
Plaintiff attacked the validity of the 1973 Plan on three bases. Firstly, plaintiff alleged there was inadequate public notice of the Board hearing at which the 1973 Plan was adopted. This, plaintiff asserted, violated the 9th and 14th Amendments to the U. S. Constitution; Art. I, §§ 1, 10, 18, 20 and 33 of the Oregon Constitution; and ORS 215.060. 2
Secondly, plaintiff cited the failure of the Board to request a Planning Commission report on the 1973 Plan before adoption, in violation of ORS 215.110(3).
Finally, plaintiff asserted that the formalities observed by the Board in its plan adoption procedures were improper under ORS 215.050 and the Washington County Charter. The trial court found against plaintiff on each of the three theories.
Plaintiff's attack on Ordinance 125 in its entirety was based on inadequate public notice of the Board meeting at which the ordinance was considered and enacted. Again, plaintiff relied at trial on the 9th and 14th Amendments to the U. S. Constitution; Art. I, §§ 1, 10, 18 and 33 of the Oregon Constitution; and ORS 215.060.
Plaintiff also asserted the constitutional invalidity of the 1973 Plan and Ordinance 125 As applied to the subject property in that they were "arbitrary, capricious (and) unreasonable." This attack was based, again, on the above-cited sections of the United States and Oregon Constitutions. The trial court granted defendant's motion for partial summary judgment on this issue, holding that plaintiff had not exhausted its administrative remedies.
Finally, plaintiff sought damages in the form of just compensation for a "taking" of the subject property (or parts thereof) under the 5th and 14th Amendments to the U. S. Constitution and Art. I, §§ 10 and 18, of the Oregon Constitution. The trial court sustained defendants' demurrer to this claim.
Plaintiff appealed each of the trial court's rulings to the Court of Appeals, which held 3 that (1) the notice of the Ordinance 125 hearing was adequate; (2) the 1973 Plan was invalid in its entirety based on improper formalities; (3) plaintiff's claims of the unconstitutional application of Ordinance 125 were without merit; and (4) the doctrine of exhaustion of administrative remedies was not applicable. The case was ordered to be remanded.
We allowed defendants' petition for review to address the issues of the validity of the 1973 Plan In its entirety and plaintiff's right to test its validity As applied under the doctrine of exhaustion.
There is no dispute that the 1973 Plan was not adopted by a document denominated "Ordinance." The Court of Appeals reasoned that this failure in formalities rendered the 1973 Plan invalid. In part this was based on a construction of ORS 215.050 (1973), which provides:
This language, according to the Court of Appeals, 28 Or.App. 485, 490-491, 560 P.2d 656, requires that all comprehensive plans in the state of Oregon 4 be adopted or more properly enacted by "ordinance," as opposed to "resolution," as was the case with the 1973 Plan. This analysis, were it left to stand, would call into question the validity of every post-1973 comprehensive plan not adopted by ordinance. 5
The problem at hand is one of statutory construction, which, of course, is nothing more than the judicial process of discerning and declaring the intent of the legislature. ORS 174.010; ORS 174.020; State ex rel. Cox v. Wilson, 277 Or. 747, 750, 562 P.2d 172 (1977).
The text of ORS 215.050 gives no indication that the legislature intended it to compel counties to observe strict ordinance formalities in the adoption of a comprehensive plan. The legislative history of this section reinforces this construction. In 1963 the legislature amended ORS 215.050 to read as follows: 6
Reference to the "commission" was to the County Planning Commission, which, until 1973, was the body authorized and required to adopt a comprehensive plan. In 1973, a bill was introduced in the Oregon House of Representatives, HB 2548, to overhaul the county land use planning statute. Section 6 of HB 2548 provided:
There was no reference to ordinances, and the only purpose of this section appears to have been to transfer the duty of promulgating a comprehensive plan from the planning commission to the county governing board.
When HB 2548 emerged from the House Committee on Local Government and Urban Affairs on May 19, 1973, the section in question (now Section 4) took the following form:
Testimony in the House committee indicated that the "primary thrust of the whole bill" was to address the problem of planning commission abuse and conflicts of interest. See, e. g., 1973 Or.Laws, ch. 552, §§ 2, 9 and 10. This legislative purpose is reinforced by the numerous references in the testimony to our opinion in Fasano v. Washington County Commissioners, 264 Or. 574, 507 P.2d 23 (1973), which was decided on March 2, 1973. In that opinion we expressed strong disapproval for the abuses which until that time had been inherent in land use decision making, and we mandated quasi-judicial hearings in land use matters before an impartial tribunal with no ex parte contacts, 264 Or. at 588, 507 P.2d 23. There is no indication from either the language of the statute or the legislative history of the 1973 amendments that the legislature intended that its amendment of ORS 215.050 was to be construed as requiring the county governing body to adopt a comprehensive plan with strict ordinance formalities.
In the construction of amendatory acts, it is presumed that material changes in language create material changes in meaning. 1A Sutherland, Statutory Construction, § 22.30 (1972). It is also said that a presumption exists that amendatory acts do not change the meaning of preexisting language further than is expressly declared or necessarily implied. Id. The word "adopt" in ORS 215.050, whose meaning under the pre-1973 statute could not have been "enact by ordinance," was retained in the post-1973 version. A change in that meaning is not expressly declared nor necessarily implied by the 1973 amendments.
For the foregoing reasons, we hold that ORS 215.050 does not require the county governing body to follow strict ordinance formalities in the adoption of a comprehensive plan. However, this does not give that body carte blanche to adopt a comprehensive plan under any procedure it sees fit. In Baker v. City of Milwaukie, 271 Or. 500, 513-514, 533 P.2d 772 (1975), we held that comprehensive plans are "legislative and permanent in nature." Thus, they are subject to the procedural requirements prescribed for ...
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