Neuberger v. City of Portland
| Decision Date | 06 November 1978 |
| Docket Number | Nos. 417,s. 417 |
| Citation | 586 P.2d 351,37 Or.App. 13 |
| Parties | Maurine NEUBERGER, Lee F. Martinson, Iris M. Felter, Frank Burger, Fay Burger, Marian O'Reilly, George Wittemyer, Jean Wittemyer, Wm. G. Cooney, Doris B. Cooney, Thomas E. Craven, James Cross, Mary Cross, Chistopher Curtin, Patricia Curtin, John Daily, Mary Lou Daily, Douglas P. Dickie, Ella Dickie, Fred C. Felter, Ervin F. Flick, Ada Flick, Alan Gilmore, Hope Z. Gilmore, Ivan Gold, Lois Gold, Merwyn R. Greenlick, Harriet Greenlick, Edward L. Hendricks, Ardis S. Hendricks, Howard E. Hermanson, Frances C. Hermanson, Richard E. Larsen, Phyllis J. Larsen, Helmer V. Larson, Gladys C. Larson, Norman C. Lindhjem, Barbara G. Lindhjem, Mary Louisa McCall, Jack B. Miller, Jeanne P. Miller, A. Don Parr, Dorthy C. Parr, Alex Pierce, Daphne Pierce, J. E. McQuaid, Glee McQuaid, Manvel Schauffler, Verna Schauffler, Joyce Spinks, D. J. Surman, Roy Taylor, Phillip Trautmann, Karen Trautmann, George Tsongas, Joyce Tsongas, Herbert H. Wing, Eileen A. Wing, Saul Zaik, Frances Zaik, Jim L. Cates, Donald L. Cook, Stacia A. Cook, Stuart Cutler, Beverlee Cutler, William Dippert, Jean F. Dippert, James Ehlbeck, Karen Ehlbeck, Keith Finzer, Joann Finzer, Thomas M. Frith, Jan E. Frith, Eugene C. Kauffman, Patricia A. Kauffman, Gifford L. Kauffman, Gifford L. Martin, Sr., Jewell N. Martin, Kahler Martinson, Donna Martinson, Frank A. Miller, Frank E. Panowicz, Marianne Panowicz, Charles Gary Peterson, Susan L. Peterson, Walt Smith, Carol Smith, LeRoy C. Stammer and Ilo M. Stammer, Appellants, v. CITY OF PORTLAND, Oregon, a Municipal Corporation, Neil E. Goldschmidt, Mayor and Member of the Council of the City of Portland, Francis J. Ivancie, Mildred Schwab, Connie McCready and Charles R. Jordan, Commissioners and Councilmen of the City of Portland, Homer G. Williams, Ronnie A. Bissell, Roland A. Haertel, D. Neal Marlett, Alan G. Quasha, Wayne G. Quasha and Jill Quasha, Co- Partners doing business as Wilbihama Investors, OROC Lands (Oregon), Inc., and Oregon Corporation, OROC Lands, Ltd., a Hon |
| Court | Oregon Court of Appeals |
Paul R. Meyer, Portland, argued the cause for appellants. With him on the briefs was Kobin & Meyer, Portland.
Stephen T. Janik, Portland, argued the cause for respondents Homer G. Williams, Ronnie A. Bissell, Roland A. Haertel, D. Neal Marlett, Alan G. Quasha, Wayne G. Quasha, and Jill Quasha, Co-Partners doing business as Wilbihama Investors; OROC Lands (Oregon), Inc., an Oregon corporation; OROC Lands, Ltd., a Hong Kong corporation; Wilbihama Investors and OROC Lands, Ltd., a joint venture; Walter Lommel, Jr., Trustee; and Ed E. Meier and Helene E. Meier. With him on the brief was Jennifer J. Johnson, and Davies, Biggs, Strayer, Stoel & Boley, Portland.
Thomas R. Williams, Sr. Deputy City Atty., Portland, argued the cause for respondents City of Portland, Oregon; Neil E. Goldschmidt, Mayor and Member of the Council of the City of Portland; Francis J. Ivancie, Mildred Schwab, Connie McCready and Charles R. Jordan, Commissioners and Councilmen of the City of Portland. With him on the brief was Christopher P. Thomas, City Atty., Portland.
Before RICHARDSON, P. J., and LEE and JOHNSON, JJ.
This appeal concerns the validity of an ordinance of the City of Portland, adopted in September, 1975, granting a zone change from R-20 (single-family residence 20,000 square feet) to R-10 (single-family residence 10,000 square feet) for a 601 acre parcel of undeveloped land in northwest Portland. There are three landowners in the parcel, all of whose interests are subject to purchase contracts or options by a joint venture (applicant) which plans eventually to construct approximately 1,300 single family residences on the parcel. The ordinance allowing the zone change makes development of the parcel contingent on the applicant's subsequent procurement of city approval for a Planned Unit Development (PUD).
The petitioners, who are mainly owners of property adjacent to the rezoned parcel, sought judicial review of the City's action by both Writ of Review and Declaratory Judgment. These two proceedings were consolidated below, and the trial court dismissed the declaratory judgment suit on the ground that the relief sought in it was substantially identical to the relief sought through the writ of review. After trial, the court also dismissed the writ of review. Petitioners appeal both orders of dismissal. We affirm the dismissal of the declaratory judgment and reverse and remand in the writ of review proceeding.
The threshold question in this case is whether the proceedings before the city council were required to comply with the quasi-judicial substantive and procedural requirements of Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), and subsequent related decisions of the Supreme Court and this court. Oregon's appellate courts have frequently been called upon to decide whether particular local land-use decisions are quasi-judicial or legislative in nature. In Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977), the Supreme Court observed:
"The property in question is a single compact tract of land under the ownership or control of a single developer. Our references in this opinion to 'single tract' or 'single parcel' amendments are convenient ways of describing the type and scale of land-use decisions which we have treated as quasi-judicial. See, e. g., Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973) (); Green v. Hayward, 275 Or. 693, 552 P.2d 815 (1976) (); Petersen v. Klamath Falls, 279 Or. 249, 566 P.2d 1193 (1977) (). Compare Culver v. Dagg, 20 Or. App. 647, 532 P.2d 1127 (1957) (); Parelius v. Lake Oswego, 22 Or.App. 429, 539 P.2d 1123 (1975) (); Joyce v. City of Portland, 24 Or.App. 689, 546 P.2d 1100 (1976) (). We do not intend, by the use of the terms 'single tract' and 'single parcel' to adopt a test for determining when a given land-use decision is quasi-judicial rather than legislative. A number of factors such as the size of the area affected in relation to the area in the planning unit, the number of landowners affected, and the kinds of standards governing the decision-makers may be relevant. The decision with which we are now concerned is clearly quasi-judicial, and we find it unnecessary to formulate, in the present case, a test for making that determination. 280 Or. at 11, n. 5, 569 P.2d at 1071.
It is also unnecessary to formulate a comprehensive test in this case for making that determination. For the reasons which follow, we conclude that a zone change proceeding is necessarily quasi-judicial when it is undertaken at the instance of a single applicant or a combination of applicants with united interests in the parcel they seek to have rezoned. 1
There is consensus among the parties that the zone change in question, involving in excess of 600 acres, was regarded as "a major matter of policy for the City." However, the potential policy ramifications of a land-use decision are not determinative of whether Fasano applies. The rationale of Fasano is that local land use decisions must be made in a quasi-judicial setting when there are "dangers of the almost irresistible pressures that can be asserted by private economic interests on local government." 264 Or. at 588, 507 P.2d at 30. In Sunnyside, the Supreme Court characterized Fasano's purpose as being
" * * * that land use decisions made At the instance of a private party be made only for reasons having to do with the needs and welfare of the community at large rather than for the accommodation of individual landowners or private developers. * * *" 280 Or. at 14, 569 P.2d at 1073 (Emphasis supplied.)
See also Auckland v. Bd. of Comm. Mult. Co., 21 Or.App. 596, 601, 536 P.2d 444, Rev. den. (1975).
The cases where we have concluded that land-use decisions were legislative rather than quasi-judicial are distinguishable from the present case, and the distinguishing facts illustrate why the City proceedings in this case were required to be quasi-judicial. In Joyce v. City of Portland, 24 Or.App. 689, 546 P.2d 1100 (1976), we held that the City of Portland's rezoning of an 842 acre tract, adjacent to the parcel in question here, was a legislative action and not subject to Fasano's requirements. In Joyce, the rezoning ensued from a Sua sponte evaluation by the city council, and the tract contained several dozen individual landowners. We stated:
"When a tract of land separately owned by a substantial number of individuals is rezoned as a result of a governmental evaluation of the existing land-use limitations imposed on the area, the change reflects a general policy and the action of the body is considered a legislative determination. * * * " 24 Or.App. at 691, 546 P.2d at 1101.
See also Culver v. Dagg, 20 Or.App. 647, 532 P.2d 1127, Rev. den. (1975); and Parelius v. Lake Oswego, 22 Or.App. 429, 539 P.2d 1123 (1975).
Conversely, in this case, there is not a substantial number of landowners in the affected parcel, and the rezoning was instituted by the single interest which has controlling rights in the entire...
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