Roseta v. Washington County

• Decision Date: 10 September 1969
• Parties: , 40 A.L.R.3d 364 Robert ROSETA and Marion Roseta, husband and wife, on behalf of themselves and others similarly situated, Respondents, v. COUNTY OF WASHINGTON, State of Oregon et al., Defendants, Vera C. Schmitt, Appellant.
• Court: Oregon Supreme Court

Page 405

458 P.2d 405

254 Or. 161, 40 A.L.R.3d 364

Robert ROSETA and Marion Roseta, husband and wife, on behalf

of themselves and others similarly situated, Respondents, v. COUNTY OF WASHINGTON, State of Oregon et al., Defendants, Vera C. Schmitt, Appellant.

Supreme Court of Oregon.

Argued and Submitted June 2, 1969.

Decided Sept. 10, 1969.

Paul M. Reeder, Hillsboro, argued the cause and filed briefs for appellant.

Clifford B. Olsen, Portland, argued the cause for respondents. With him on the brief were Franklin, Olsen, Bennett, Des-Brisay & Jolles, Portland.

Before SLOAN, P.J., and O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

This is a declaratory judgment suit brought to test the validity of the action of the Board of Commissioners of Washington County in rezoning a parcel of land owned by defendant Vera Schmitt. The trial court entered a decree declaring the action of the Board void on the ground that it constituted 'spot zoning' and enjoining defendant Schmitt from erecting any building inconsistent with the existing zone.

Defendant Schmitt is the owner of Tax Lots 200, 201, 202, and 203. She had constructed an apartment building on Lots 200, 201 and 202 prior to the enactment of the original zoning ordinance enacted in 1959 which zoned the surrounding property including that of plaintiffs as R--10 (single family dwellings). In the original ordinance Lots 200, 201 and 202 were zoned as A--2 (apartment residential) because it was an existing non-conforming use at the time the ordinance was adopted. Since Lot 203 was vacant it was zoned as a part of the surrounding area as R--10.

In 1966 defendant Schmitt applied for a zone change of Lot 203 from R--10 to A--1 (Duplex residential). The Washington County Planning Commission denied defendant's request. She appealed to the Board of Commissioners of Washington County which granted her request and rezoned Lot 203 from R--10 to A--1.

The trial court held that the reclassification of Lot 203 constituted 'spot zoning' and was invalid.

The formulation and execution of a land use policy for Washington County is a legislative function vested in the Washington County Board of Commissioners. The Board's authority is derived from ORS Ch. 215 which empowers the governing body of a county to enact zoning ordinances and 'whatever amendments it believes the public interest requires.' (ORS 215.110). Any zonng ordinance adopted by the county must be predicated upon 'a comprehensive plan for the use of some or all of the land in the county.' (ORS 215.050). The statute sets out the criteria for such a comprehensive plan and requires that all legislation by the governing body of the county meet these criteria. ¹

It is axiomatic that a court must not substitute its judgment for that of a legislative or administrative agency on questions of policy within the legislative domain. This axiom applied to the field of zoning precludes the court from interjecting its notions of what constitutes a preferable land use policy when passing upon the validity of a zoning change. We have frequently recognized that we will not interfere with the action of local governing bodies or their agencies in effecting zoning changes 'unless the action was clearly unreasonable and arbitrary and had no substantial relation to the legitimate objects sought to be gained.' ²

This broad and vague statement of judicial restraint under the separation of powers doctrine, without further definition, furnishes no helpful guide in drawing the line between action which is arbitrary and action which is reasonable. It has been observed that the failure of the courts to identify more definitively the standards relevant in judging the legitimate scope of legislative action in zoning has often resulted in an abdication of the function of judicial review in this field. ³ Generally it is assumed that the identification of these standards is necessary to protect adequately the constitutional interests of neighboring property owners. It is not necessary for us to decide in the present case whether this assumption is correct. ⁴ Quite apart from any possible constitutional requirements the power of the Board of County Commissioners is limited by the enabling act (ORS Ch. 215) under which it purports to legislate changes in the character of land use. As we have pointed out above, the statute sets out the standards which must be met before the governing body of the county can legally effect a change. We made note of this limitation on the Board's power in Smith v. County of Washington, 241 Or. 380, 383--384, 406 P.2d 545, 547 (1965). There we said:

'The enabling legislation under which county governments may enact zoning regulations requires the enactment of a comprehensive zoning plan. ORS 215.050. Once a plan is adopted, changes in it should be made only when such changes are consistent with the over-all objectives of the plan and in keeping with changes in the character of the area or neighborhood to be covered thereby.'

In Smith v. County of Washington, Supra, we also laid down the principle that once the Board has established a zone and thereafter a change in the character of the use is authorized, the usual presumption of legislative regularity is not recognized and in such a case the Board carries the burden of proving that there has been a change in the neighborhood in order to justify the rezoning of a small tract as an amendment in keeping with the comprehensive plan. ⁵

There is ample justification for interpreting the enabling statutes to impose this burden of proof upon the Board. ORS Chapter 215 can be regarded as a legislative effort to set up those procedures in the field of zoning which would best serve to eliminate the evils commonly attendant in zoning practices and procedures. One of the principal evils frequently observed is the practice of granting requests for zoning changes either upon the basis of special privilege or through a failure to see that the change would be inimical to the over-all plan for land use in the locality. ⁶ One court has described the situation as follows:

'* * * An examination of the multitude of zoning cases that have reached this court leads us to the conclusion that the common practice of zoning agencies, after the adoption of an original ordinance, is simply to wait until some property owner finds an opportunity to acquire a financial advantage by devoting his property to a use other than that for which it is zoned, and then struggle with the question of whether some excuse can be found for complying with his request for a rezoning. The result has been that in most of the rezoning cases reaching the courts there actually has been spot zoning and the courts have upheld or invalidated the change according to how flagrant the violation of true zoning principles has been. It is to be hoped that in the future zoning authorities will give recognition to the fact that an essential feature of zoning is planning.' Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of K.R.S. Chapter 100, 56 Ky.L.J. 556, 595--96 (1968), quoting from Fritts v. City of Ashland, 348 S.W.2d 712, 714--715 (Ky.1961).

There is recurring recognition in the vast literature on zoning that many of the evils in zoning practice can be ameliorated by a judicial insistence upon the zoning board's compliance with the statutory requirement that any changes in the zoning ordinance be made 'in accordance with a comprehensive plan.' ⁷ ORS Chapter 215 can be read as embodying this premise and to that end requiring the Board to prove that when change in land use is authorized it is 'in accordance with the comprehensive plan.'

In the present case there was no evidence disclosing the considerations, if any, that led the Board to grant defendant's request for a change in the zone. The only evidence adduced by defendant was the testimony of defendant Vera C. Schmitt and a real estate appraiser who also described himself as a 'consultant' engaged in advising clients with respect to the adaptability of land for certain uses. No part of this testimony afforded proof that the change sought by defendant Schmitt would be consistent with the comprehensive plan. There was no record of the proceedings of the Board and no member of the Board testified at the trial in the circuit court. There is, therefore, no evidence revealing the Board's purpose in granting the request for change.

Defendant argues that the requested change was not incompatible with the comprehensive plan because the plan designated the area in question 'residential'--a term broad enough to include both R--10 and A--1 classifications. However, the ordinance established a distinction between the two types of use by classifying one area as R--10 and another area as A--1. It must be assumed that the Board had some purpose in making a distinction between these two classifications. It was for defendant to prove that this distinction was not valid or that the change in the character of the use of the Schmitt parcel was not inconsistent with the comprehensive plan.

It was further argued that as a result of the increase in population in the Portland area there was a need for multiple family housing in the R--10 zone. In support of this argument it was pointed out that there were duplexes and apartments in the vicinity of the property in question, thus establishing a pattern of less restricted uses in a residential area consistent with the comprehensive plan. Some, if not all, of these less restricted uses existed prior to the enactment of the zoning ordinance and therefore were exempt from the ordinance as existing non-conforming uses. Moreover these multiple family units to which defendant refers were located on heavily travelled streets. There was no evidence that a comparable flow of traffic resulting from the increase in population extended to the street serving plaintiff's...