Oregon Inv. Co. v. Schrunk

• Decision Date: 24 November 1965
• Citation: 242 Or. 63,408 P.2d 89
• Parties: OREGON INVESTMENT CO., an Oregon corporation, Rector Church Wardens and Vestrymen of the Church of the Holy Trinity, a nonprofit corporation, Highland Hospital, Inc., a nonprofit corporation, Mary Ray Eaton, Louise R. Mayo, Iva M. Griffith, Ruth Saxton Wilcox, Mary Saxton, Simon M. Director and Helen Director, husband and wife, Ruth Layton and The Mann Home, an Oregon corporation, Appellants, v. Terry D. SCHRUNK, Mayor of the City of Portland, Oregon, Mark A. Grayson, Stanley W. Earl, William A. Bowes, Ormond R. Bean and Terry D. Schrunk, City Commissioners of the City of Portland, Oregon, Alexander G. Brown City Attorney, and The City of Portland, a municipal corporation, Respondents.
• Court: Oregon Supreme Court

Page 89

408 P.2d 89

242 Or. 63

OREGON INVESTMENT CO., an Oregon corporation, Rector Church

Wardens and Vestrymen of the Church of the Holy Trinity, a

nonprofit corporation, Highland Hospital, Inc., a nonprofit

corporation, Mary Ray Eaton, Louise R. Mayo, Iva M.

Griffith, Ruth Saxton Wilcox, Mary Saxton, Simon M. Director

and Helen Director, husband and wife, Ruth Layton and The

Mann Home, an Oregon corporation, Appellants, v. Terry D. SCHRUNK, Mayor of the City of Portland, Oregon,

Mark A. Grayson, Stanley W. Earl, William A. Bowes, Ormond

R. Bean and Terry D. Schrunk, City Commissioners of the City

of Portland, Oregon, Alexander G. Brown City Attorney, and

The City of Portland, a municipal corporation, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 3, 1965.

Decided Nov. 24, 1965.

George W. Mead, Portland, argued the cause and filed briefs for appellants.

Richard A. Braman, Deputy City Atty., Portland, argued the cause for respondents. With him on the brief were Alexander G. Brown, City Atty., and Emory J. Crofoot, Deputy City Atty.

Before McALLISTER, C. J., and PERRY, O'CONNELL, ^* DENECKE, and LUSK, JJ.

LUSK, Justice.

This is a declaratory judgment proceeding in which the court allowed a motion of the defendants for a decree on the pleadings. Plaintiffs appeal.

Plaintiffs are, some of them the owners, and others the lessees, of a half block in the downtown 'core area' of the City of Portland. The property is used as an automobile parking lot. Defendants are the mayor, city commissioners (comprising the City Council), and city attorney of the City of Portland. Plaintiffs' real property is bounded on the west by SW Fourth Avenue, on the north by SW Morrison Street and on the east by SW Third Avenue. The City permits vehicular ingress to and egress from the premises on the SW Morrison Street and SW Third Avenue sides, but prohibits it as the Fourth Avenue side. Plaintiffs claim the prohibition is arbitrary and constitutes a taking of their porperty for public use without just compensation in violation of Oregon Constition, Article I, section 18.

The admitted facts disclosed by the pleadings are as follows: Plaintiffs' property is 100 feet abutting SW Fourth Avenue, 200 feet abutting SW Morrison Street, and 100 feet abutting SW Third Avenue. The east curb lane of SW Fourth Avenue abutting plaintiffs' real property is a 24-hour bus loading zone, so designated by the City Council. The first designation was made December 14, 1945, and included 80 feet immediately south of SW Morrison Street. It was extended to 119 feet on June 17, 1955, and again extended on October 30, 1958, so as to include the entire easterly curb lane between SW Morrison Street and SW Yamhill Street, the next street paralleling and south of SW Morrison Street.

Under the Portland zoning ordinance plaintiffs' property is in a C-1 or central commercial zone. The ordinance authorizes the Portland City Planning Commission to permit conditional use of such property for affstreet parking facilities. It further provides:

'Section 6-2217. REGULATIONS.

* * *

* * *

'(e) OFF-STREET PARKING FACILITIES:

'1. No permit shall be issued for the construction or alteration of such facilities or for the cutting of any curb for a driveway to such facilities unless approval is given by the City Planning Commission and the City Traffic Engineer.'

On June 20, 1962, plaintiffs applied to the Portland City Planning Commission for approval of the use of their said real property as an offstreet parking facility and in such application proposed curb cuts to accommodate three driveways, each 36 feet in width (one on SW Fourth Avenue, one on SW Morrison Street, and on SW Third Avenue). The Portland City Planning Commission, by its Zoning Committee, approved such application on August 6, 1962, subject to the condition, among others, that there be no vehicular accessway across, the 100-foot front line of said real property on SW Fourth Avenue. The plaintiffs appealed from this condition to the City Council and such appeal was denied on September 20, 1962. The condition, as alleged in the defendants' answer and admitted in the reply:

'* * * was imposed for the reason that a vehicular accessway to plaintiffs' real property on S. W. 4th Avenue would allow vehicles entering and leaving said real property to cross through area swsignated by the City Director of Transportation and used by the public as a 24-hour bus loading zone, and to cross a sidewalk whereon pedestrian traffic is concentrated and large numbers of passengers and awaiting the arrival of motor buses * * *.'

Plaintiffs on October 25, 1962, filed an acceptance of the terms and provisions of the conditional use as granted by the City Council and thereafter installed an offstreet parking facility upon the said real property.

Plaintiffs admit by their pleading that their right of access to and from Fourth Avenue is subject to the paramount right of the public to use SW Fourth Avenue and of the defendants to impose reasonable regulations and limitations consistent with such public use. They deny that the defendants have the right to totally prohibit vehicular access to their property from Fourth Avenue.

Before going to this, the pivotal question in the case, we will consider the argument most vigorously and at great length pressed upon us in the brief of the plaintiffs. They say that the court cannot properly determine the constitutional question on the pleadings, but must first receive evidence which would show whether the defendants' exercise of power is reasonable under the circumstances. It is urged, for example, that the trial court should have heard evidence upon the question whether the bus loading zone should have been located elsewhere than in front of plaintiffs' property or whether the necessity for so locating it outweighed the injury to plaintiffs.

We think the unexpressed and erroneous major premise of this argument is that the defendants are charged with the burden of establishing the constitutionality of their action. The contrary is, of course, the case: Dennis et ux. v. City of Oswego et al., 223 Or. 60, 66, 353 P.2d 1044. Admittedly, the subject of the defendants' action was within the scope of the city's police power--the power to regulate the use of the streets and public throughfares, to keep the streets and sidewalks in an open and safe condition for public use and to control and limit traffic and classes thereof and vehicles and classes thereof on the streets, avenues, and elsewhere: Portland City Charter, § 2-105. The circumstances which led to the city's action on denying plaintiffs' application for access on SW Fourth Avenue--as above set forth--were alleged in the defendants' answer and admitted in the reply. Whether those circumstances are legally sufficient to justify the city's action is, of course, a question which calls for determination. But if there are facts and circumstances in addition to those disclosed by the pleadings and which affect such determination it was incumbent upon the plaintiffs to plead them. As stated by Mr. Justice Brandeis, speaking for the court in Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853, 860:

'The burden [of showing arbitrary action] is not sustained by making allegations which are merely the general conclusions of law or fact. (Citations.) Facts relied upon the rebut the presumption of constitutionality must be specifically set forth. (Citations.)'

Neither in their complaint nor their reply have the plaintiffs set forth a single fact, either generally or specifically, which in any way qualifies the admissions in their reply. A judgment on the pleadings in favor of a defendant is properly allowed if the facts set forth in a separate defense constitute a complete answer to the cause of action alleged in the complaint and those facts are admitted by the reply: Morford v. Calif.-West. States Life Ins. Co., 161 Or. 113, 120, 88 P.2d 303. It makes no difference that the effect of such a judgment is to sustain the constitutionality of a legislative act, as Pacific States Box & Basket Co. v. White, supra, illustrates. The decision in that case sustaining the constitutionality of the challenged statute was upon a motion to dismiss, which is tantamount to a demurrer.

We therefore go to the question of the reasonableness of the city's action.

While an abutting proprietor's right to the use of the street in front of his premises as a means of ingress and egress is a property right: State, By and Through State Highway Commission v. Burk et al., 200 Or. 211, 228, 265 P.2d 783; Sweet et al. v. Irrigation Canal Co., 198 Or. 166, 190-191, 254 P.2d 700, 256 P.2d 252; Barrett et al. v. Union Bridge Co., 117 Or. 220, 223, 243 P. 93, 45 A.L.R. 521; Willamette Iron Works v. O. R. & N. Co., 26 Or. 224, 228-229, 37 P. 1016, 29 L.R.A. 88, 46 Am.St.Rep. 620; yet, as we said in Hickey v. Riley, 177 Or. 321, 332, 162 P.2d 371, 375, in holding valid a parking meter ordinance: 'The rights of abutting proprietors to access to their premises are subservient to the primary rights of the public to the free use of the streets for the purposes of travel and incidental purposes.' See, also, Morris v. City of Salem et al., 179 Or. 666, 672-673, 174 P.2d 192; Barrett et al. v. Union Bridge Co., supra; Brand v. Multnomah County, 38 Or. 79, 60 P. 390, 62 P. 209, 50 L.R.A. 389, 84 Am.St.Rep....