Parks v. Board of County Com'rs of Tillamook County

Citation11 Or.App. 177,95 Adv.Sh. 929,501 P.2d 85
Parties, 68 A.L.R.3d 138 Alex L. PARKS et al., Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF TILLAMOOK COUNTY, State of Oregon, Respondent, Spliid Investment Co., a co-partnership consisting of Oscar A. Spliid, Jr. and Barbara N. Spliid, Intervenor and Cross-Respondent.
Decision Date30 January 1973
CourtCourt of Appeals of Oregon

Alex L. Parks, Portland, argued the cause and filed the briefs for appellants.

Sidney E. Thwing, Eugene, argued the cause for respondent, intervenor and cross-respondent. With him on the brief were Thwing, Atherly & Butler, Eugene.

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

SCHWAB, Chief Judge.

Petitioners seek writ of mandamus requiring the Board of County Commissioners for Tillamook County to cancel building permits issued for the construction of 11 houses on Block 24, Neskowin, Oregon, and to compel the removal of those houses. Petitioners, owners of land adjoining Block 24, contended that the houses on Block 24 are being constructed in violation of the Tillamook County Zoning Ordinance.

After issuance of an alternative writ addressed to the county commissioners, Spliid Investment Co., the developer constructing the houses in question, filed a motion to intervene, which was granted. Intervenor then filed: (1) a complaint in intervention; (2) a motion to strike certain allegations in the alternative writ; and (3) a demurrer. The circuit court held a consolidated hearing on intervenor's motion to strike and demurrer. At this hearing petitioners orally answered the complaint in intervention. The circuit court sustained the demurrer on the ground that the alternative writ failed to state a cause of action in mandamus, but did not rule on intervenor's motion to strike. Petitioners appeal from the circuit court's ruling on the demurrer.

For purposes of clarifying the facts, it would have been preferable for the circuit court to first rule on intervenor's motion to strike, which we view as being more in the nature of a motion to make more definite and certain. As the record now stands, however, a preliminary problem is to determine the facts properly cognizable in this appeal. Normally in a mandamus case when considering whether a demurrer should have been sustained we look only to the well-pleaded allegations in the alternative writ, which are assumed to be true for purposes of the demurrer. But this approach is complicated here because intervenor filed a complaint which petitioner has orally answered. So we assume it is proper to look also to the allegations in the complaint in intervention which were admitted by the petitioners.

However, both sides in their briefs in this court have gone beyond the written pleadings in stating the facts before us. Moreover, the circuit judge in his opinion sustaining intervenor's demurrer went beyond the facts alleged in the pleadings. Therefore, like the parties and the court below, we look to the allegations in the pleadings and to the other 'facts' on which there is no disagreement and which were relied upon by the circuit judge.

The houses in question are being constructed on Block 24 in Neskowin. Before any zoning ordinances were applicable to it, Block 24 was platted into 12 lots, four of which were 40 feet by 100 feet and the rest of which were 50 feet by 100 feet. Also, before zoning ordinances were applicable, a structure was built on two (according to the alternative writ) or two and part of a third (according to the circuit judge's opinion) contiguous lots located on Block 24. Until construction began on the houses in question, the remaining lots in Block 24 were vacant.

In 1969, Tillamook County adopted zoning ordinances which classified Block 24 as R--1 (medium density residential). The standards for the R--1 zone required minimum lot areas of 7,500 square feet and minimum lot widths of 75 feet. Thus, all the lots in Block 24 were substandard in both minimum area and minimum width when the property was zoned.

In January 1971, intervenor obtained an option to purchase Block 24, and shortly thereafter applied to the Tillamook County Planning Commission for a variance and/or conditional use permit to construct duplex apartments thereon. A public hearing was held on intervenor's application. The pleadings are contradictory as to whether the application was denied (as alleged in the alternative writ), or withdrawn (as alleged in the complaint in intervention and admitted by petitioners) at the hearing.

Thereafter, intervenor initiated the development plan for Block 24 here challenged. Their complaint in intervention describes their activities as follows:

'* * *

'V

'That thereafter and on or about the first day of February, 1971, Oscar A. Spliid, Jr. submitted by letter to Richard Smith, Tillamook County Planning Consultant, Tillamook, Oregon a general plan for the construction of eleven single family dwelling units upon lots 1 through 12, Block 24, Neskowin, Tillamook County, Oregon.

'VI

'* * * (T)he intervenor's general plan for the development of the said real property was approved and intervenor thereafter exercised his option to purchase said real property.

'VII

'After the general plan for development of the property was approved by the respondents' duly designated officials, intervenor caused working drawings and specifications of the development to be prepared showing, among other things, the exact location of each single family dwelling on said real property, which detailed working drawings and specifications were submitted to respondents' duly designated officials.

'VIII

'That thereafter Al Moore, intervenor's duly authorized agent, applied to the Tillamook County Building Department for permission to build eleven single family dwelling units upon Block 24, Neskowin, Oregon in accordance with the plans and specifications theretofor submitted to it, and on or about May 21, 1971, May 25, 1971 and May 26, 1971, the respondents by their duly designated officials, John D. Lesch, County Planning for Zoning, Robert A. Sheets, Building Director, and William Maxwell of the Tillamook County Health Department, executed on behalf of the respondent county, building permits to Al Moore authorizing the construction of the eleven single family dwelling units upon Block 24, Neskowin, Oregon.

'IX

'That immediately thereafter the intervenor commenced the construction of the eleven single family dwelling units upon Block 24, Neskowin, Tillamook County, Oregon, in accordance with the plan previously submitted to and approved by the duly authorized representatives of respondent Board of County Commissioners.

'* * *.'

All of these allegations were admitted by petitioners.

It is not entirely clear exactly what intervenor submitted to the various Tillamook County officials, or exactly what those officials approved. We gather from the record that it probably was the 'plot plan' attached to the alternative writ as Exhibit B, and reproduced below.

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

As is apparent from the arrangement of the 11 houses being built by intervenor, the previously existing lot lines in Block 24 have been ignored. Intervenor takes the position this is permissible because all of Block 24 is to be utilized as a condominium development. As we understand intervenor's plans, Block 24 will be occupied by 11 single-family homes in private ownership with all of the grounds and the previously existing structure in common ownership.

The questions meriting discussion are:

(I) Does the alternative writ make a prima facie showing that there has been any violation of the Tillamook County Zoning Ordinance?

(II) Does the alternative writ sufficiently allege that petitioners have a right to the relief demanded?

(III) Does the alternative writ sufficiently allege that the Board of County Commissioners for Tillamook County has the duty and power to perform the acts sought to be enforced?

(IV) If a prior demand is necessary, does the alternative writ sufficiently allege a prior demand on the county commissioners to perform the acts sought to be enforced?

I

It is well established that in a mandamus proceeding the alternative writ must allege facts which establish a prima facie right to the relief demanded. Johnson v. Craddock et al., 228 Or. 308, 365 P.2d 89 (1961). The alternative writ in this case requires county commissioners to: (1) cancel the 11 building permits issued for the homes being constructed by intervenor; and (2) declare those homes to be nuisances and compel their removal pursuant to ORS 215.180 and 215.185. Those statutes provide:

'The location, erection, construction, maintenance, repair, alteration or use of a building or other structure, or the subdivision, other partitioning, or use of land, in violation of an ordinance or regulation authorized by ORS 215.010 to 215.190 shall be deemed a nuisance.' ORS 215.180.

'In case a building or other structure is, or is proposed to be, located, constructed, maintained, repaired, altered, or used, or any land is, or is proposed to be, used, in violation of an ordinance or regulation authorized by ORS 215.010 to 215.190, the governing body or district attorney of the county or a person whose interest in real property in the county is or may be affected by the violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement, or other appropriate proceedings to prevent, temporarily or permanently enjoin, abate, or remove the unlawful location, construction, maintenance, repair, alteration, or use. When a temporary restraining order is granted in a suit instituted by a person who is not exempt from furnishing bonds or undertakings under ORS 22.010, the person shall furnish undertaking as provided in ORS 32.010 to 32.060.' ORS 215.185.

Thus the principal question presented is...

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