Haugen v. Gleason
| Decision Date | 08 February 1961 |
| Citation | 359 P.2d 108,226 Or. 99 |
| Parties | Dwight E. HAUGEN, Appellant, v. M. James GLEASON, AI L. Brown and Jack Bain, County Commissioners of Multnomah County, Oregon, and Robert S. Baldwin, Planning Commission Director of Multnomah County, Oregon, Respondents. |
| Court | Oregon Supreme Court |
Frank L. Whitaker, Portland, for appellant.
Robert M. Christ, Deputy Dist. Atty., Portland, for respondents. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
Plaintiff, a subdivider of land, appeals from a declaratory decree upholding the right of Multnomah County to charge a fee of $37.50 per subdivision lot as a condition precedent to approval of a plat which plaintiff has tendered for filing.
In 1955 the Legislative Assembly enacted comprehensive statutes relating to platting, subdividing, and partitioning of land. Oregon Laws 1955, ch. 756, replaced several sections and expanded other sections of ORS ch. 92, where the relevant statutes are now found. For the purposes of this case ORS 92.044(1) is the controlling section. 1 It reads as follows:
Assuming to act pursuant to the authority of ORS 92.044(1), Multnomah County adopted a subdivision code which contains the following regulation:
In June 1955, the Board of County Commissioners adopted, in the form of an order, certain recommendations of the County Planning Commission, and set a fee of $37.50 per subdivision lot as a condition of approval of any proposed subdivision. The plaintiff thereafter paid the $37.50 per lot under protest and commenced this suit for declaratory relief and for a refund.
Regulation 4.10 allows the county to demand either land or money, in its discretion. There is no expressed limit upon the amount of either land or money which may be required as a condition precedent to the approval of a proposed subdivision. Neither is there a requirement that the money paid by the subdivider be expended by the county in the vicinity of the particular subdivision. The money could be spent anywhere in the county.
The county has not exercised its claimed right to demand land instead of money. It was stipulated that if the county did demand a dedication of land for park purposes in any given subdivision the demand would be for .015 acres of land for each lot in the subdivision.
The county also conceded that it charges a separate fee for examining and recording plats. (Authorized by ORS 92.100(2) and 205.350.)
The issue before this court is whether the county can charge a subdivider, in addition to all inspection and filing fees, a separate fee for the stated purpose as a condition to approval of his proposed plat.
Regulation 4.10, which the county says is an implementation of the quoted statute, purports to authorize two distinct governmental actions. The first exercise of governmental power is the control over the use of land. The second is the levy of money.
Whether the county may lawfully demand the dedication of land for park purposes as a condition of approval is not squarely before the court, because the county has not chosen to follow that route. We will assume without deciding that the delegation of power contained in ORS 92.044(1) is broad enough to authorize that part of Regulation 4.10 which provides for a dedication of land for park purposes. Park land dedicated within a subdivision would presumably benefit the balance of the subdivision.
The record shows that there is a very practical reason why the county has chosen to demand money in lieu of land. At least in the smaller subdivisions, the proposal to take dedications of modest amounts of land presented the problems of maintenance, inadequate surface area, and inconvenient location, among others.
The decision to seek money with which to buy other land which might benefit another subdivision, or the public generally, took the county into the borderland area between the police power and the power to tax.
The trial court held that the fee charged by the county was merely a tool to regulate the subdividing of land and was therefore within the regulatory powers conferred by statute.
The subdivider contends that the fee is a revenue measure designed to produce money for public purposes and is therefore void as a tax not within the power of the county to levy. Whether or not the subdivider is correct, it is still necessary to define the power sought to be exercised. If the $37.50 is a tax, the authority to levy it is lacking. If the fee charged is merely a tool in the regulation of the division and sale of land for residential purposes, the authority expressed in the statute is broad enough to cover reasonable methods of regulation.
As pointed out in Probert, Law and Persuasion: The Language Behavior of Lawyers, 108 Pa.L.Rev. 35, persuasive definitions can sometimes evoke different meanings in different contexts. Thus, Cooley refers to 'regulation' and 'revenue' in discussing the police power and taxation:
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