Fifth Ave. Corp. v. Washington County

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; SCHWAB; THORNTON
• Citation: Fifth Ave. Corp. v. Washington County, 560 P.2d 656, 28 Or.App. 485 (Or. App. 1977)
• Decision Date: 14 February 1977
• Parties: FIFTH AVENUE CORPORATION, an Oregon Corporation, Appellant, v. WASHINGTON COUNTY, a political subdivision of the State of Oregon, et al., Respondents.

Page 656

560 P.2d 656

28 Or.App. 485

FIFTH AVENUE CORPORATION, an Oregon Corporation, Appellant, v. WASHINGTON COUNTY, a political subdivision of the State of Oregon, et al., Respondents.

Court of Appeals of Oregon.

Argued and Submitted Oct. 28, 1976.

Decided Feb. 14, 1977.

Stephen T. Janik, Portland, argued the cause for appellant. With him on the briefs were Donald T. McDougall, and Davies, Biggs, Strayer, Stoel & Boley, Portland.

Lawrence R. Derr, County Counsel, Hillsboro, argued the cause for respondents. With him on the brief were Gregory S. Hathaway, John M. Junkin, Timothy V. Ramis and John H. Holloway, Jr., Asst. County Counsels, Hillsboro.

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

SCHWAB, Chief Judge.

Plaintiff's amended complaint contained two separate causes of suit seeking decrees declaring the comprehensive plan and the relevant zoning ordinance of Washington County invalid, and two separate causes of action for inverse condemnation. ¹ Plaintiff appeals from adverse rulings as to each of these matters.

Plaintiff has owned a parcel of approximately 20 acres in Washington County since the mid-1960s. When plaintiff purchased this land it was zoned C--2 (general commercial). Plaintiff desires to construct a district shopping center on the site. ² The county zoning ordinance in effect at the time of purchase permitted district shopping centers in C--2 zones.

On November 6, 1973, the Board of County Commissioners adopted a zoning ordinance which extensively revised the county zoning. One of the changes was that all land in the county which had been zoned C--2 was rezoned B--4 (general extensive commercial). District shopping centers are not permitted in B--4 zones. On November 27, 1973, the Board adopted a new comprehensive plan for the county. The plan superseded a plan which apparently would have permitted a district shopping center on plaintiff's land. ³ However, in the new plan, must of the 20 acres in question is designated medium density residential, some of it 'neighborhood commercial,' and approximately four acres are designated a 'greenway area' and transit station. On October 14, 1974, plaintiff applied for a permit to build a district shopping center on the 20-acre site. After the application was denied, these proceedings were initiated.

I

At trial plaintiff contended that the zoning ordinance is invalid because the county failed to comply with the notice requirement contained in ORS 215.223(1). The same contention is made on appeal. ORS 215.223(1) states that no zoning ordinance enacted by a county will have legal effect '* * * unless prior to its enactment * * * 10 days' advance public notice of each hearing (on the ordinance) is published in a newspaper of general circulation in the county * * *.' Plaintiff concedes this was done, but argues that the Content of the notice was inadequate under the guidelines enunciated in Clackamas County v. Emmert, 14 Or.App. 493, 513 P.2d 532 (1973). The trial court did not agree, and neither do we.

Emmert is similar to the present case in that the content of a notice of hearing was challenged as legally insufficient. Emmert holds that ORS 215.223(1) is satisfied if notice reasonably apprises interested parties of the contemplated action and reasonably identifies the property involved and the time and place of the hearing. 14 Or.App. at 498, 513 P.2d 532. In this case, the notice read as follows:

'NOTICE OF PUBLIC HEARING

Notice is hereby given that a public hearing will be held by the Board of County Commissioners of Washington County on June 26, 1973 at 7:30 p.m. P.D.T. in Room 402 of the Administration Building of Washington County Courthouse Complex at 150 North 3rd St., Hillsboro, Oregon.

The hearing will concern the following portions of the proposed Revised Article II of the Washington County Community Development Ordinance relating to Zoning (Case #73--142-M).

                                   Proposed
                                                   Revision       Present     Present Zoning
                Material Covered         Proposed  Zoning       Chapter (all  Article: Zoning
                    District             Chapter   District      Districts)      District
                -----------------------------------------------------------------------------
                Signs                        5     No District            --  No District
                Exurb Convenience-          22     B-1A                   --  No District
                Recreation Commercial
                Neighborhood Commercial     23     B-1                   900  C-4
                Community Commercial        24     B-2                  1000  C-3
                Highway Commercial          25     B-2A                  850  C-5
                Office-Business             26     B-3                  1120  C-P
                Commercial
                General Extensive           27     B-4                  1100  C-2
                Commercial
                Research-Development        28     R-D            1150, 1200  R-D,M-4
                Production
                Limited Manufacturing       29     M-1             1300,1400  M-3,M-2
                Production
                Intensive Manufacturing     30     M-2                  1500  M-1
                Production
                

The regulations of each of the above zoning districts and the proposed provisions relating to signs are proposed to be altered and additional regulations recommended. Copies of the proposed regulations are on file at the office of the Planning Director, at the Branch County Building at 27280 SW Tualatin Valley Highway.

Anyone having interest may attend and be heard'

We find that this notice is at least as adequate as the notice approved in Emmert. The date and place of the hearing are identified, and the notice clearly states that an alteration of zoning regulation is being contemplated. The notice also reasonably identifies the land involved. Plaintiff apparently argues that the use of technical zoning symbols (e.g., C--2 to B--4), rather than actual district boundaries, made it impossible for lay persons to know which land was to be rezoned. However, the notice did contain comprehensible district nomenclatures (e.g., highway commercial) in addition to the zoning symbols. If anything, in this instance lay persons could have more readily identified affected land by these generic labels and zoning symbols than by the complicated geographic boundary descriptions used in Emmert and apparently favored by plaintiff. The notice in question concerned a proposed rezoning of all commercial land in Washington County, and an attempt to describe the boundaries of all affected land might have resulted in an unfathomable notice. ⁴ We conclude that the notice sufficiently informed the public of the land affected by the rezoning, and that the zoning ordinance itself was properly enacted.

II

Plaintiff also sought at trial to have the county's comprehensive plan declared invalid on various grounds. One ground relates to the fact that the plan was adopted by resolution rather than by ordinance. Plaintiff argues that plans must be adopted by ordinance because they are legislative in nature and that the plan in question is therefore invalid. Contrary to the trial court, we find plaintiff's argument persuasive.

Prior to 1973, county comprehensive plans were adopted by county planning commissions. Since planning commissions cannot pass ordinances, less formal adoption procedures--usually resolutions--were customarily employed. See generally Baker v. City of Milwaukie, 271 Or. 500, 514, n. 13, 533 P.2d 772 (1975). However, since 1973 county governing bodies have been responsible for adopting comprehensive plans. ORS 215.050 (Amended by Oregon Laws 1973, ch. 552, § 4, p. 1217). Comprehensive plans are legislative in nature, See Culver v. Dagg, 20 Or.App. 647, 532 P.2d 1127 (1975), and it is well established that 'the governing body of a county must customarily express its will by the more solemn enactment of an ordinance when the matter is * * * 'legislative." 4 Antieau, Local Government Law § 33.00 (1966).

This view is also reflected in Baker v. City of Milwaukie, supra. Baker involved a plan which had been adopted by resolution. This mode of plan adoption was unacceptable to the court in light of its conclusion that comprehensive plans are legislative enactments which control county zoning decisions. However, Baker holds that labels such as 'resolution' and 'ordinance' are not dispositive. In effect, the court stated that the plan in question was a valid legislative enactment because it was permanent in nature and had presumably been "passed with all the formalities of an ordinance." 271 Or. at 511, 533 P.2d at 777, quoting 5 McQuillin on Municipal Corporations, § 15.02 (1969). ⁵ It follows that a plan which is not passed with the 'formalities of an ordinance' is not a valid legislative action.

This conclusion is supported by strong policy considerations. '(A)ction by ordinance is a reflective process that affords an opportunity for expression of public opinion.' 5 McQuillin, supra, § 15.01 at 40. The legislature's 1973 decision to require county governing bodies to adopt comprehensive plans must have had as one of its purposes the creation of an opportunity for such reflection and public involvement. This purpose would be frustrated if plans did not have to be adopted by ordinance or by a procedure as formal as that prescribed for the enactment of ordinances.

The Washington County Charter prescribes the procedure for enacting ordinances. ⁶ Washington County is a home rule county. Its charter provisions therefore serve as limitations on the powers the electorate has decided to confer upon its county government, and they are strictly enforced. See 4 Antieau, supra, § 33.02 at 61. The county concedes that it followed neither the charter's ordinance-adoption procedure nor a procedure of equal formality. In other words, we are not presented with an ordinance masquerading as a resolution, as was presumed to be the case in Baker. In this case, therefore, the plan is invalid because it was improperly adopted. ⁷

The county argues that the plan is valid despite the resolution form of adoption...