Smith v. Washington County

• Decision Date: 29 September 1965
• Citation: 241 Or. 380,406 P.2d 545
• Parties: Keith W. SMITH and Carla Smith, on behalf of themselves and others similarly situated, Appellants, v. COUNTY OF WASHINGTON et al., Respondents.
• Court: Oregon Supreme Court

Page 545

406 P.2d 545

241 Or. 380

Keith W. SMITH and Carla Smith, on behalf of themselves and others similarly situated, Appellants, v. COUNTY OF WASHINGTON et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 9, 1965.

Decided Sept. 29, 1965.

Ronald B. Lansing, Portland, argued the cause for appellants. With him on the briefs were Bailey, Swink, Haas, Seagraves & Lansing, Portland.

DeMar L. Batchelor, Hillsboro, argued the cause for respondents. With him on the brief were Schwenn & Bradley and Holger M. Pihl, Jr., Dist. Atty., Hillsboro.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and SCHWAB, JJ.

GOODWIN, Justice.

Plaintiffs, homeowners in Washington County, sued to enjoin ¹ the rezoning of a tract of residential land so that it could be used for manufacturing. The trial court held that rezoning was a legislative matter, and that, on the facts of the case, the proposed action by the county commissioners was not subject to judicial intervention. Plaintiffs appeal.

The tract in question contains 4.3 acres and is surrounded by land that was and is zoned for residential use as part of a comprehensive plan of development adopted by Washington County in 1959. Most of the land visible from the site in question is actually being used for single-family housing. Four nonconforming uses occur nearby, but each necessarily antedates the 1959 enactment of the county zoning plan.

In 1963, the owners of the tract in question requested a change in zoning to permit the use of their land as a manufacturing site. The county planning commission duly considered the request, and recommended that it be denied. The county commissioners, who, under ORS 215.110, have the power to enact, amend, or repeal zoning ordinances, rejected the recommendation of the planning commission and voted to grant the requested change. The plaintiffs thereupon instituted these proceedings in circuit court to challenge the power of the county commissioners to grant the change.

Inasmuch as ORS 215.110 specifically grants to the governing board of the county the power to amend zoning ordinances, a challenged amendment is a legislative act and is clothed with a presumption in its favor. Milwaukie Co. of Jehovah's Witnesses v. Mullen et al., 214 Or. 281, 292, 330 P.2d 5, 74 A.L.R.2d 347 (1958), appeal dismissed and cert. denied, 359 U.S. 436, 79 S.Ct. 940, 3 L.Ed.2d 932 (1959).

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. Arbitrary, or 'spot', zoning to accommodate the desires of a particular landowner is not only contrary to good zoning practice, but violates the rights of neighboring landowners and is contrary to the intent of the enabling legislation which contemplates planned zoning based upon the welfare of an entire neighborhood. See Holt et ux. v. City of Salem et al., 192 Or. 200, 215, 234 P.2d 564 (1951); 1 Yokley, Zoning Law and Practice, 128, § 3-5 (3d ed. 1965).

Even though there is a presumption of legislative regularity when the governing board of a county enacts a change in a zoning ordinance, the antithetical character of spot zoning and its recognized erosive effect upon the comprehensive zoning plan automatically tends to neutralize, if not to overcome, the presumption in the particular case. Accordingly, courts generally view spot zoning as being outside the presumption of legislative regularity, and require substantial evidence of change in the neighborhood in order to justify the rezoning of a small tract as an amendment in keeping with the comprehensive plan. See Annotation, 51 A.L.R.2d 263, 303 (1957).

We turn, then, to the question whether the facts which the county claimed as evidence supporting the change can be characterized as evidence to justify what appears on its face to be as egregious case of spot zoning as can be presented in court.

The Board of County Commissioners gave, as one of its reasons for granting a request to rezone the 4.3 acres, the existence of four nonconforming uses in the neighborhood. Since the nonconforming uses were in existence prior to 1959, and since under the zoning ordinance none of them lawfully could be expanded after 1959, it is obvious that these uses constitute no 'change' in the neighborhood that would support a change from the original zoning plan.

Another reason given for granting the change is an increase in the traffic count on Southwest Multnomah Boulevard, upon which the tract in question fronts. The increase in traffic count coincides with a general increase in traffic in the vicinity, apparently owing to a nearby freeway project coupled with the population growth and the increased density of the suburban residential development experienced in eastern Washington County.

The witnesses argeed that traffic counts generally rise upon streets having interchanges with a freeway. Eventually, traffic engineers testified, traffic counts build up to a...