Green v. City of Eugene

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; SCHWAB
• Citation: Green v. City of Eugene, 538 P.2d 368, 22 Or.App. 231 (Or. App. 1975)
• Decision Date: 04 August 1975
• Parties: Earl Wm. GREEN and Helen B. Green, Respondents, v. CITY OF EUGENE, Oregon, Appellant.

Page 368

538 P.2d 368

22 Or.App. 231

Earl Wm. GREEN and Helen B. Green, Respondents, v. CITY OF EUGENE, Oregon, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 19, 1975.

Decided Aug. 4, 1975.

Stanton F. Long, Eugene, argued the cause for appellant. With him on the briefs were Johnson, Johnson & Harrang, Eugene.

Richard E. Miller, Eugene, argued the cause for respondents. With him on the brief were Miller, Moulton & Andrews, Eugene.

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

SCHWAB, Chief Judge.

Plaintiffs applied to have their property rezoned. The Eugene City Council held a series of meetings on the application that extended over about a six-month period. The council's final decision was adverse to plaintiffs. By way of this writ of review proceeding, plaintiffs challenge that decision. The circuit court held that the council's decision was tainted by procedural error and remanded for further proceedings. The City of Eugene appeals.

The circuit court's finding of procedural error was based upon: (1) the conceded fact that, of the seven council members who participated in the final decision, four had not attended all prior council meetings at which the requested rezone was considered; and (2) Section 2.393(9), Eugene Code, which provides:

'A member absent during the presentation of any evidence in a hearing may not participate in the deliberations or final decision regarding the matter of the hearing, unless he or she has reviewed the evidence received.'

We generally agree with the circuit court's well-reasoned opinion and conclusions that: (1) Section 2.393(9) is not applicable to those council members who missed the February 25, 1974 council meeting because no evidence was received at that meeting; (2) Section 2.393(9) is applicable to those council members who missed the January 21, 1974 meeting because evidence was received at that meeting; and (3) there is no evidence that the council members who missed the January 21 meeting 'reviewed the evidence received' within the meaning of Section 2.393(9) before participating in the final decision to deny the requested rezoning. However, upon the basis of an issue not reached by the circuit court--plaintiffs' failure to adequately raise and preserve this claim of procedural error before the city council--we reverse the decision remanding to the city council.

Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), tells us that the proceedings before the city council to consider the zone-change application were, for some purposes at least, 'quasi-judicial' in nature. In a 'judicial' context, the general rule is that timely objection must be made to allegedly irregular procedures, and that if no objection is made, no claim of irregularity is thereafter cognizable. Should the same rule be applied in this 'quasi-judicial' context--proceedings before a local governing body to pass upon individual land-use questions?

Such a holding would arguably strain the Fasano 'quasi-judicial' analogy to the breaking point. It would amount to a holding that citizens supporting or opposing a requested land...