Frankland v. City of Lake Oswego

• Decision Date: 28 January 1972
• Citation: 8 Or.App. 224,94 Adv.Sh. 149,493 P.2d 163
• Parties: Roger FRANKLAND et al., Appellants, v. CITY OF LAKE OSWEGO, a municipal corporation, et al., Respondents.
• Court: Oregon Court of Appeals

Page 163

493 P.2d 163

8 Or.App. 224

Roger FRANKLAND et al., Appellants, v. CITY OF LAKE OSWEGO, a municipal corporation, et al., Respondents.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 1, 1971.

Decided Jan. 28, 1972.

David P. Templeton, Portland, argued the cause for appellants. With him on the briefs were Dusenbery, Martin, Bischoff & Templeton, and Charles Robinowitz, Portland.

Garry P. McMurry, Portland, argued the cause for respondents City of Lake Oswego and John C. MacLean, H. J. Fergusen, William Cook, Robert Dent, Mary Goodall, William Knowles, and Charles Needham. With him on the brief were McMurry, Sherry, Nichols & Cox, Portland.

Gerson F. Goldsmith, Portland, argued the cause for respondent Mountain Park Corporation. With him on the brief were Goldsmith, Siegel & Engel, and Brad Littlefield, Portland.

Also on the brief were Kenneth W. Baines, and Wheelock, Richardson, Niehaus, Baines & Murphy, Portland, for respondent Dave Christensen Inc., and David J. Krieger, and Black, Kendall, Tremaine, Booth & Higgins, Portland, for respondent Security Bank of Oregon.

Before LANGTRY, P.J., and FOLEY and THORNTON, JJ.

LANGTRY, Judge.

This appeal is from a decree which dismissed with prejudice the plaintiffs' suit for declaratory judgment, injunction, and, alternatively, damages. The motion to dismiss came at the conclusion of plaintiffs' case. Defendants sought to reserve the right to put on a case and there was a colloquy between court and counsel on this subject, but no decision.

Evidence or stipulations show all of the plaintiffs are property owners--principally home owners--who assert their rights under zoning ordinances were infringed by the concerted action of the defendants in bringing about a change in the residential zone of an adjacent tract of land ¹ to one which allowed construction of a four and five-story apartment building.

In 1967 various entities in which Carl Halvorson had a dominant interest acquired the right to purchase the property designated (B) and (C) in the accompanying maps (hereinafter the Kerr property).

The segment of the Kerr property around which this suit revolves is in Multnomah County and lies immediately north of the east-west Clackamas Multnomah County line and is designated (B) on the maps. It is separated by a dotted line from the balance of the Kerr property (marked (C)) on the accompanying maps. This land was undeveloped. Plaintiffs live or own property on the strip of land immediately west of (B), extending southward from Stephenson Street; this area is designated (A) on the maps (hereinafter called Arrowood). Arrowood was substantially developed with single family residences. Immediately east of (B) is other land, not involved here, which also was developed with single family residences.

Prior to the events which led to this litigation all of the land mentioned above which lay in Multnomah County had been zoned under a comprehensive plan as R--20--single family residential--upon which residences could be built only if the lot occupied an area of 20,000 square feet or more. ² Arrowood had been annexed to the City of Portland several years earlier, and remained zoned by Portland for single family residences. The accompanying maps illustrate that Arrowood is surrounded by the Kerr property except for its northerly tip. Conversely, the strip of land in controversy, (B), is surrounded by and a part of land which already had been comprehensively zoned single family residential, except for its southerly tip.

When Carl Halvorson acquired the right to purchase the Kerr property in 1967, he embarked upon a plan for developing the approximate 600 acres into what is termed a 'Planned-Unit Development' (hereinafter called PUD). This development includes a town center, commercial area, park, equestrian and other recreational facilities, and areas for 'garden' ³ apartments, townhouses, duplexes, single family dwellings, etc. Defendant Mountain Park Corporation, of which Mr. Halvorson was the dominant owner, took title to the land and began the development. In order to obtain water supply and a sewer system, as well as other city services, negotiations were carried on with various municipal corporations. Mountain Park concluded that the best opportunity for development conforming to its own plans lay with the City of Lake Oswego (hereinafter called City). City, which was comprehensively zoned under a zoning code, passed an enabling ordinance permitting planned-unit development in new areas. Negotiations ripened into a contract between City, Mountain Park, and Sylvania Properties, another of the entities dominated by Mr. Halvorson. The contract contemplated City would annex the PUD in phases. A section of the contract dealt with annexation and development. Its tenor is that City agreed to accept the PUD zoning submitted by Mountain Park under its planned-unit development ordinance (except for changes or amendments agreed upon by the City of Lake Oswego Planning Commission and Mountain Park) in return for annexation. ⁴

As contemplated by the contract, Mountain Park proposed annexation of Phases I, II and III of the PUD and City annexed these areas; later it annexed Phase IV which included the controversial strip (B). Shortly thereafter, it changed the zoning of Phase IV to allow, among other things, the building of 'garden' apartments in the southerly part of strip (B) in accordance with the PUD plan submitted by Mountain Park. The procedure of annexation and zoning had to be redone because of a defect in the first annexation attempt.

Shortly after the rezoning, Mountain Park deeded 3.5 acres in the southerly part of Phase IV, (B), to defendant Dave Christensen, Inc. The latter obtained a commitment for financing from defendant Security Bank of Oregon, and submitted to Mountain Park (pursuant to a contract) suggested sketches for an apartment building or buildings which Christensen proposed to construct thereon. After Mountain Park rejected several proposals it approved the plan effected for the apartment building in question. It was contemplated that another companion apartment building of roughly the same design, bulk and height, would be built close by if the first one rented well. The final approved plan contemplated some 230 apartment units in the area.

Plaintiffs testified that they learned for the first time the real bulk, size and nature of the proposed building when Christensen's bulldozers arrived and stripped the area of trees and other vegetation and put in a fill 27 feet high toward the south end of strip (B). They protested, obtaining a hearing before the city council on October 21, 1969. The council referred the matter to the Planning Commission to determine whether the proposed structure was a 'garden' apartment in compliance with the PUD zoning ordinance. The Planning Commission ruled it was. ⁵ City issued a temporary building permit. Thereafter, on November 20, after having previously warned in writing of such intention, plaintiffs brought this suit. On November 21, City issued a final building permit.

Christensen proceeded with the construction of the building, which was virtually completed at the time of trial. Its dimensions are 75 feet by 375 feet, and pictures show five stories on the southerly end, the first of which projects from the land fill, and four on the northerly end. It contains 80 rental apartments and occupies an area on the strip of land illustrated by the following sketch, which also shows Arrowood, (A), and the approximate locations of plaintiffs' houses. The scale of the apartment building is the same as the scale of the sketch, but we are not sure, from the evidence, whether it is positioned correctly on the sketch. This is the position which a witness drew into a map exhibit for it, but the contours on the map from which our sketch was taken make it seem probable that the building faces more directly easterly, rather than southeasterly.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Several plaintiffs had viewed the plans for the PUD which had been given publicity during the planning stages and were aware that 'garden' apartments were proposed. ⁶

There was extensive testimony from plaintiffs about what they had believed about the type of apartment buildings which Mountain Park proposed. We quote some of the testimony of Mrs. J. Brumley who was, with her husband, one of the plaintiffs.

'We have followed this very closely from the very beginning and we had always seen that there were garden apartments and I thought that garden apartments were one level * * *. And then we looked at models, little white models that were used to depict garden apartments were the same size as the houses on Arrowood and they were scattered around through the woods. * * * I talked to Mr. Nelson on several occasions. (Mr. Nelson was the on-the-site manager and Executive Vice-President for Mountain Park. He explained the project at at least one public meeting of interested persons which was held at nearby Jackson High School.) * * * (W)e had been told that nothing would be higher than two stories. * * * (E)ven * * * their hospital, is only two story and even their commercial is only two story and any model we saw * * * with the exception of one high rise * * * that would be behind us up on the crest of the mountain. * * * We were in the town houses when they first built them. We have been in every model and especially wanted to see the town houses when they were completed because we were told that they would put town houses next to us * * *.'

Various of the exhibits in evidence which were used for publicity purposes as the PUD developed indicated that 280 'garden' apartment units would be included in the southerly half of the finger of property, (B), in controversy. The model and other similar sketches and maps indicated that the 'garden' apartment buildings would be of the relative size of the...