Strawberry Hill 4 Wheelers v. Board of Com'rs for Benton County

• Decision Date: 18 December 1978
• Docket Number: No. 33160,33160
• Citation: 588 P.2d 65,37 Or.App. 575
• Parties: STRAWBERRY HILL 4 WHEELERS, a Non-Profit Corporation, and Pacific Northwest 4-Wheel-Drive Association, a Non-Profit Corporation, Appellants, v. The BOARD OF COMMISSIONERS FOR the COUNTY OF BENTON, State of Oregon, Dale Schrock, Barbara Ross and Larry Callahan, Respondents. ; CA 11086. . *
• Court: Oregon Court of Appeals

Page 65

588 P.2d 65

37 Or.App. 575

STRAWBERRY HILL 4 WHEELERS, a Non-Profit Corporation, and Pacific Northwest 4-Wheel-Drive Association, a Non-Profit Corporation, Appellants, v. The BOARD OF COMMISSIONERS FOR the COUNTY OF BENTON, State of Oregon, Dale Schrock, Barbara Ross and Larry Callahan, Respondents.

No. 33160; CA 11086.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Oct. 17, 1978.

Resubmitted in banc Dec. 14, 1978.

Decided Dec. 18, 1978.

Lynn H. Heusinkveld, Coos Bay, argued the cause and filed briefs, for appellants.

Todd G. Brown, Corvallis, argued the cause and filed brief, for respondents.

JOHNSON, Judge.

Plaintiffs appeal the judgment of the trial court quashing a writ of review contesting a road vacation by Benton County. The trial court concluded that the county's decision was legislative and, thus, not subject to writ of review. See ORS 34.040. ¹

The older cases have been in conflict as to whether vacation of a road is legislative or quasi-judicial. Compare Holmes v. Graham, 159 Or. 466, 80 P.2d 870 (1938) With Portland Baseball Club v. Portland, 142 Or. 13, 18 P.2d 811 (1933). However, since vacation of a road affects land use, it is doubtful that cases decided prior to Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973) are entitled to any weight. The post-Fasano decisions indicate that where a municipal land use decision concerns a large area of land, and there is multiple ownership, the decision is legislative. See, e. g., Neuberger v. City of Portland, 37 Or.App. 13, 586 P.2d 351 (1978). Here the vacated road was 4.3 miles in length serving 20 to 30 square miles of timberland near Mary's Peak. The amended petition for writ of review disclosed that the abutting landowners included the United States Forest Service, the Bureau of Land Management, the City of Corvallis, a private timber company and individual landowners. Cf. Joyce v. City of Portland, 24 Or.App. 689, 546 P.2d 1100 (1976). The writ was properly quashed.

Affirmed.

THORNTON, Judge, dissenting.

The majority opinion holds that an order of vacation entered by a board of county commissioners cannot be challenged by writ of review because it is a "legislative" decision.

I must respectfully disagree. My reasons are as follows: First, the court's decision is (a) in direct conflict with ORS 203.200 and 203.120(3); and (b) contrary to the settled case law in this state recognizing the right of an interested party to challenge county road vacation proceedings by writ of review.

ORS 203.200 provides as follows:

"The decisions of the county court made in the transaction of county business shall be reviewed only upon the writ of review provided by the civil procedure statutes." (General Laws of Oregon, ch. 11, § 875, p. 367 (Deady 1845-1864).)

ORS 203.120(3) provides:

"The county court has the authority and powers pertaining to county commissioners to transact county business, as follows:

" * * * * *cou

"(3) To establish, vacate or alter county roads or highways within the county, or any other necessary act relating thereto, in the manner provided by law and to permit the use thereof, including the use of the right of way, by persons for purposes deemed by the county court to be in the public interest."

Contrary to the majority's conclusion, the Oregon Supreme Court, since at least 1874, has consistently held that an affected landowner can bring a writ of review proceeding to test the action of a county court in road matters. For example, See, C. & G. Road Co. v. Douglas Co., 5 Or. 280 (1874), and Minard v. Douglas County, 9 Or. 206 (1881). In Gaines and Stringer v. Linn County, 21 Or. 430, 28 P. 133 (1891), the court held that any person whose lands are directly affected by a proceeding to lay out, vacate or alter a county road, though he be neither a petitioner nor remonstrator, may have the proceeding reviewed for errors therein.

In Re Petition of Reeder et al., 110 Or. 484, 488, 222 P. 724, 725 (1924), the Supreme Court observed:

"If the Board of County Commissioners has exercised its judicial functions erroneously, or has exceeded its jurisdiction in the matter of the establishment of the county road involved in this proceeding, the appellants' remedy for that wrong is by the writ of review * * *."

Further, the court said that in an appeal from the assessment of damages in road proceedings, the appellants could not litigate such issues as the regularity of notice given by the advertisement or the utility of the particular road, those questions being reviewable only by writ of review.

In Holmes v. Graham, 159 Or. 466, 80 P.2d 870 (1938), the Supreme Court held expressly that a writ of review, not a suit in equity to set aside the county court's proceedings, was the proper remedy of owners of land abutting on a vacated county road.

As recently as 1977, this court in Thompson v. Columbia County Comm'rs, 29 Or.App. 813, 564 P.2d 1376, Rev. den. (1977), considered a writ of review challenging the validity of the board of county commissioners' vacation of a county road without any qualms as to the propriety of remedy pursued by the petitioning landowners.

Vacation of county roads, like establishment and laying out of such roads, is a statutory proceeding. ORS 368.565 et seq.

These general enabling statutes (ORS ch. 368) are complete in themselves and provide a comprehensive, integrated procedure for the establishment and laying out of county roads. The vacation of county roads, like the establishment and laying out of such roads, is likewise a complete statutory proceeding, ORS 368.565 et seq., culminating in a quasi-judicial decision by the board of county commissioners either to grant or deny the proposed vacation.

Lastly, I cannot agree that county road proceedings are land use matters in the same sense as that term was used in Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), cited and relied upon in the majority opinion. Rather, they are special statutory proceedings of the county court and are subject to challenge by reason of the provisions of ORS 203.200, quoted earlier.

However, even assuming arguendo that road vacations should be treated as land use matters, I do not read Fasano as requiring that this road vacation be treated as a legislative determination. Fasano relies upon the following distinction:

" ' * * * Basically, this test involves the determination of whether action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.' "

Quoting Comment, Zoning Amendments The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130, 137 (1972). 264 Or. at 581, 507 P.2d at 27.

The Supreme Court thereafter employed this approach in Petersen v. Klamath Falls, 279 Or. 249, 255-56, 566 P.2d 1193, 1196-1197 (1977), an annexation case, where the court noted:

" * * * (S)ince the consideration of * * * statewide goals and the determination that a particular annexation proposal does or does not comply with those goals necessarily involves the application of general standards to a specific situation and to specific individuals, we conclude that such a decision is quasi-judicial in nature. See Green v. Hayward, 275 Or. 693, 552 P.2d 815 (1976); Fasano v. Washington County Comm., supra; Auckland v. Board of Comm., 21 Or.App. 596, 536 P.2d 444 (1975). Of course, we recognize that the broader issues involved in reaching final decisions on whether the land proposed for annexation should, in fact, be annexed to the city, and at what point that action should be taken, may cloak those ultimate decisions with a character which is more legislative than judicial. See Griffin v. City of Roseburg, 255 Or....