West v. City of Astoria

• Decision Date: 29 July 1974
• Citation: 18 Or.App. 212,524 P.2d 1216
• Parties: William WEST, Appellant, v. CITY OF ASTORIA, Respondent.
• Court: Oregon Court of Appeals

Page 1216

524 P.2d 1216

18 Or.App. 212

William WEST, Appellant, v. CITY OF ASTORIA, Respondent.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1974.

Decided July 29, 1974.

Robert P. VanNatta, St. Helens, argued the cause for appellant. With him on the brief were VanNatta & Petersen, St. Helens.

Bradley C. Grove, Astoria, argued the cause for respondent. With him on the brief were Anderson, Fulton, Lavis & Van Thiel, Astoria.

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

THORNTON, Judge.

This case involves a dispute between plaintiff and the City of Astoria (City) over the granting of a conditional use permit by the city planning commission to the Clatsop Youth Development Association (CYDA), a private nonprofit corporation. The conditional use permit allowed CYDA to operate a center for the care of disturbed youth on leased premises adjoining plaintiff's property (an apartment house).

After a public hearing the planning commission granted the permit. Plaintiff appealed the matter to the city council which affirmed the action by the planning commission.

On December 19, 1972, plaintiff commenced a writ of review proceeding in the circuit court challenging the above actions. The circuit court dismissed the petition and entered judgment in favor of the City.

Plaintiff appeals contending that the trial judge erred in the following particulars:

(1) CYDA had no standing to request a conditional use permit;

(2) City failed to provide appeal forms as required by the zoning ordinance;

(3) The city council refused to conduct a public hearing;

(4) Neither the city council nor the planning commission made any findings of fact; and

(5) The proposed use is not a permitted use.

The essential facts are as follows:

CYDA is a child-caring agency authorized by, and regulated pursuant to, ORS 418.205 et seq.

Under the City's zoning ordinance scheme, authority to issue a conditional use permit is delegated to the city planning commission. The ordinance specifically enumerates the authorized conditional uses and the standards governing such uses. It provides that the commission must both publish and deliver to neighboring owners a notice of, and conduct, a public hearing within 40 days of the filing of the application for a conditional use permit. The ordinance further provides that an action or ruling of the planning commission can be appealed to the city council within 15 days after the commission makes its decision.

On August 10, 1972, CYDA applied to the planning commission for a conditional use permit to operate a youth care center in a building owned by the Roman Catholic Archdiocese of Portland and being used by the Star of the Sea Catholic Church as a convent to house nuns. The subject property is in an R--3 (higher-density residential) zone.

At the same time the above application was filed, the applicant also filed a letter on behalf of the Parish Council of the Star of the Sea Catholic Church which stated as follows:

'At the present time, the Parish Council of Star of the Sea Catholic Church is in the process of negotiating a lease with the Clatsop Youth Development Association for the lease of the Convent located at 636 Fourteenth Street. These negotiations cannot be completed until the zoning is approved for the Convent to be used as an adolescent Care Center. To this extent, the Parish Council joins with the Clatsop Youth Development Association in its application for a conditional use permit.'

The planning commission then set the matter for hearing and mailed notices of hearing to adjoining property owners and published a notice of hearing. A written notice was mailed to plaintiff. Plaintiff filed with the planning commission a written objection to the granting of CYDA's application.

Also available at the hearing was a resume as to the nature of CYDA's proposed organization:

'Clatsop Youth Development Association is a non-profit corporation with a board of directors consisting of twelve people from different areas of Clatsop County, who were asked by the Mental Health Clinic, the Juvenile Department and Children's Services Division to form a corporation for the purpose of opening a home for adolescents who can benefit from residential treatment.

'* * *

'Adolescents to be treated are youngsters from the age of 13 to 16 inclusive who need to be removed from their families, but whose needs cannot be met by foster homes. These youngsters may be behaviorally and socially maladjusted and/or out of parental control. The home will serve approximately ten to twelve youngsters at a time from Clatsop County. To begin with, girls only will be taken, but as soon as the center is operating smoothly boys will also be admitted. The anticipated average time an adolescent will be in the home is six months.

'Staff will consist of a full time director, two full time live-in child care workers, a part-time child care worker, a part time secretary, and a cook.

'Funding: $9250 has already been appropriated by the County Commissioners as Clatsop County's share of the yearly budget. This will be matched by the state through Children's Services Division and the remainder of the yearly anticipated budget of § 61,000 will be paid by the Federal Government through Title IV A funds.

'* * *.'

The minutes of the hearing disclose that a considerable number of persons appeared at the hearing. Some favored the proposal, while others opposed it.

At the conclusion of the hearing (September 19, 1972), the planning commission approved an oral motion 'to approve the request.'

Within the 15-day period allowed by ordinance a notice of appeal to the city council was filed over the signatures of some 17 citizens including plaintiff. The appeal included a specific request for a public hearing.

On October 16, 1972, plaintiff's notice of appeal was read into the minutes of the city council. The minutes show that the city manager then informed the council that

'* * * no action can be taken by the Council until a report comes back in writing from the Planning Commission. At that time, the Council will decide whether to have a public hearing.'

Then, in accordance with the municipal procedure, the planning commission made a written report to the city council which concluded with a recommendation that the previous action of the commission be affirmed without another public hearing. This report, which was approved by the commission October 17, contains the following in the nature of findings:

'After listening to the public hearing and after questions to those in the audience, the Commission moved to approve the conditional use with the stipulation that a suitable fence be placed on the East and South sides of the property to separate the facility from neighboring property. The motion was passed unanimously.

'The Commission has reviewed the appeal and their original decision, and recommends that the approval be allowed to stand. The Commission feels that there are adequate plans for supervising the facility and the children. The City staff has inspected the building and made recommendations to upgrade it for adequate public safety. The operators will have to answer to a number of governmental agencies which are available for public criticism of the operation of the Center.'

The record also discloses several letters which were directed to the city council, including a letter from the applicant, CYDA, which set forth CYDA's contentions and urged that the council refuse a hearing to the objectors.

On November 6, 1972, the city council proceeded to consider the appeal at a regular meeting of the council. We find nothing in the record to indicate that prior formal notice of the city council's consideration was published or was given to plaintiff and the others who signed the appeal petition. The minutes indicate, nevertheless, that the council did have a hearing, and that at least seven interested parties were given the opportunity to present their views prior to the vote. Plaintiff was not among them. After hearing from these citizens the council voted unanimously to affirm the decision of the planning commission.

Plaintiff's first two assignments may be considered together. It is our conclusion that CYDA had sufficient standing to make the application. Section 10.420, Astoria Zoning Code; Annotation, 89 A.L.R.2d 663 (1963), 85--91 A.L.R.2d Later Case Service 297 et seq. (1968), including Supp. 147 (1974). In any event since the Parish Council of the Star of the Sea Parish joined in the application, this fact would be conclusive on the question of standing.

Second, the failure of the City to provide the appeal forms specified in the zoning ordinance, while a technical irregularity, would not be sufficient to amount to a denial of due process of law requiring us to overturn the proceedings. Plaintiff was not prejudiced. The record shows that plaintiff was informed of his right of appeal, and that an appeal was prepared and was duly received and filed by the planning commission.

Plaintiff's third assignment raises a more substantial question: Was the city council required to conduct a de novo-type public hearing?

We note that the zoning ordinance of defendant City does not require that advance notice be given or a public hearing held on a zoning appeal to the city council from a decision of the planning commission.

First, we agree with plaintiff that plaintiff and all those who signed the appeal petition were entitled to reasonable advance notice of the council's hearing on plaintiff's appeal. The failure of the City to give plaintiff such notice, unless waived or excused, was reversible error. The news article published in the local press reporting that the matter would be considered at the city council meeting on the evening of November 6, 1972, referred to and relied upon the defendant's brief, would not constitute legal and sufficient notice of the scheduled hearing. McCarthy v. Coos Timber Co., 208 Or. 371, 302...