Alexanderson v. Board of Commissioners

616 P.2d 459, 289 Or. 427

• Court: Oregon Supreme Court
• Decided: November 4, 1980
• Docket: TC 25142 CA 13226 and SC 26628
• Status: Published

Opinions

LINDE, J.

The issue for decision is whether Polk County unlawfully denied petitioner’s application for an otherwise proper partition of his 25-acre tract of land on the ground that the partition would contravene a statewide planning goal promulgated by the Land Conservation and Development Commission ("LCDC”).

The land in question qualifies as agricultural land within the definition of LCDC’s Goal 3, relating to the preservation of such land for agricultural use.¹ At the time of the application it was used primarily as cherry orchard and was qualified for property tax assessment limited to farm use. ORS 308.370. The tract is located within an area designated by the Polk County Comprehensive Plan as "rural residential” and is zoned for "agricultural-residential” use with 5-acre minimum lot size.

Petitioner applied to the county for permission to partition the tract into three lots, pursuant to Polk County’s subdivision ordinance. Ord #118 (May 1, 1974) § 6. The county planning director and, on appeal, the Board of Commissioners disapproved the partition as inconsistent with statewide land use standards.² In proceedings upon a writ of review, the circuit court vacated the Board’s order and ordered approval of the proposed partition. On the county’s appeal, the Court of Appeals reversed the circuit court, 42 Or App 618, 601 P2d 139 (1979), and we allowed review. We affirm the decision of the Court of Appeals.

The problem arises from the interplay between the county’s exercise of its authority over subdivisions and partitions under ORS chapter 92, and the statewide standards that govern the exercise of its planning responsibilities under ORS chapters 197 and 215. With respect to the partition of a tract of land, which ORS 92.010(8) defines as its division into two or three parcels within a calendar year, the law distinguishes between a "major” partition, which includes the creation of a road or street, and a "minor” partition, which does not. ORS 92.010(2), (4). This case involves a minor partition. Under chapter 92, the county "shall” adopt standards for the approval of major partitions, ORS 92.044; it "may” adopt standards for the approval of minor partitions. ORS 92.046. If it does regulate minor partitions, such a partition must comply with the applicable ordinances, which in turn must comply with the county’s comprehensive plan. ORS 92.046(5), (6).

Under chapter 215, the county is required to adopt "zoning, subdivision and other ordinances applicable to all of the land in the county” that are "designed to implement the adopted county comprehensive plan.” ORS 215.050(1), (2). With the adoption of ORS chapter 197 and of statewide planning goals, the statutes allowed a one-year period after the goals were approved by LCDC under ORS 197.240 within which to bring the comprehensive plan and the ordinances and regulations into conformity with the goals. ORS 215.050(3), ORS 197.250.

The law prescribes procedures for LCDC to determine whether comprehensive plans or zoning, subdivision, or other ordinances or regulations comply with the goals, or to provide limited extensions of time for bringing them into compliance. ORS 197.251. The changed legal status of these local land use policies before and after this determination of compliance is important to the present case. ORS 197.275 provides:

"(1) Comprehensive plans and zoning, subdivision, and other ordinances and regulations adopted prior to October 5, 1973, shall remain in effect until revised under ORS 197.005 to 197.430 and 469.350. It is intended that existing planning efforts and activities shall continue and that such efforts be utilized in achieving the purposes of ORS 197.005 to 197.430 and 469.350.

"(2) After the commission acknowledges a city or county comprehensive plan and implementing ordinances to be in compliance with the goals pursuant to ORS chapter 197 and any subsequent amendments to the goals, the goals shall apply to land conservation and development actions and annexations only through the acknowledged comprehensive plan and implementing ordinances unless:

"(a) The acknowledged comprehensive plan and implementing ordinances do not control the action or annexation under consideration; or

"(b) Substantial changes in conditions have occurred which render the comprehensive plan and implementing ordinances inapplicable to the action or annexation.

"(3) ...”

Polk County’s comprehensive plan and land use regulations have not completed this process of acknowledgment. However, the county adopted a policy, expressed in a Board resolution, that during the transition period it would apply the statewide planning standards directly to individual requests for partitions.

Petitioner relies on the continued effectiveness of the county’s existing plan, ordinances and regulations pending their acknowledgment by LCDC, ORS 197.275(1), supra, and contends that the county is bound to judge his proposed partition under its subdivision ordinance until it is properly revised or amended. This contention has merit unless the county is right in superimposing the statewide goals on individual decisions under the ordinance. The question is whether the legislature meant this to be done.

The county relies on ORS 197.175, which directs cities and counties to "exercise their planning and zoning responsibilities” in accordance with state laws and statewide planning goals. It interprets this to mean that, because the adoption of comprehensive plans and zoning and subdivision ordinances is a planning and zoning responsibility, ORS 197.175(2), each individual decision under such an ordinance is equally an exercise of that responsibility. Standing alone, however, ORS 197.175 does not strike us as conclusive on the question, especially when ORS 92.046 leaves it to the county’s discretion whether to regulate minor partitions at all. ORS 197.175 alone could equally be read to reflect a legislative division between statewide and local responsibilities that would test large-scale local policies — planning, zoning and subdivision ordinances, as well as annexations — against statewide goals, thereafter leaving individual cases to be decided under the local ordinances. Cf. Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 14-15, 569 P2d 1063 (1977). However, there are other indications of the legislative policy.

When a local government requires an extension of time to comply with the goals, ORS 197.252 authorizes LCDC as part of a compliance schedule "to direct the city or county to apply specified goal requirements in approving or denying future land conservation and development actions if the commission finds that past approvals or denials would have constituted violations of the state-wide planning goals. . . .” The cryptic choice of the conditional phrase "would have,” without stating what condition is meant, requires explanation. It is found in the legislative history of the section.

The legislative history shows that in the major reexamination and revision of the land use laws in 1977, the question whether the state-wide planning goals did or did not apply directly to individual "land conservation and development actions” was a major point of contention between witnesses who favored and those who were critical of LCDC’s statewide authority over land use. The applicability of the goals to individual "actions” grew into a crucial issue when it became clear that satisfactory local comprehensive plans could not be completed in one year but would take several years. The issue had not been decided under the existing law. Moreover, while the legislature was in session, LCDC published its policies for attaching conditions to planning grants and to the extensions of the time allowed local governments for completing their plans. In this setting, there were proposals to have the 1977 legislation expressly affirm that state-wide goals govern "actions” directly until a comprehensive plan was completed and acknowledged, and proposals to have it expressly negate this. All such amendments failed. What emerged from the committee discussions instead was consensus to leave the law on the issue as it was, whatever that might be. The phrase "would have constituted violations of the statewide planning goals” was placed in ORS 197.252, somewhat elliptically, to mean "would have” assuming the goals applied. If ever legislative history shows the enactment of a statute with a firm purpose not to legislate on an issue, the history of ORS 197.252 is it.

Thus the question whether the state-wide goals would govern "land conservation and development actions” after the expiration of the time allowed to bring local plans into compliance with the goals stands where it stood before the 1977 legislation. At that time, and at the time relevant to the present case, LCDC was authorized to review any "land conservation and development action” alleged to conflict with the statewide goals. ORS 197.300(l)(b) (1977).³ Also ORS 197.275(2), quoted above, provides that after a compliance acknowledgment, "the goals shall apply to land conservation and development actions . . . only through the acknowledged comprehensive plan and implementing ordinances.” The implication is that before acknowledgment, the goals apply to such actions not only in this indirect way but directly.

Although ORS 197.015 contains a list of definitions, the statute nowhere defines the key term "land conservation and development action.” We read "action” in this context to go beyond the adoption of plans and general ordinances so as to reach action on applications of these general policies to specific tracts of land. This includes minor partitions if the local government has brought them within its subdivision ordinance. LCDC has included the partition of land in its definition of "development,” OAR 660-15-000 (Appendix A). Accordingly, we conclude that Polk County followed the statutory scheme in applying the statewide agricultural lands goal to partitions under its subdivision ordinance.

In the circuit court and in the Court of Appeals, petitioner contended that the Board erred in concluding that his proposal was incompatible with this goal or with a proper consideration of all applicable goals. The circuit court agreed. The Court of Appeals wrote no opinion besides citing its earlier opinion in Jurgenson v. Union County Court, 42 Or App 505, 600 P2d 1241 (1979), which held a partition subject to Goal 3. As often happens, we are left to infer that it rejected petitioner’s contention and the circuit court’s conclusion on this issue in reversing the decision below. The petitioner has not pursued the merits of the issue in this court, relying only on his position that the county should not have applied the goal at all. Since we have reached a contrary conclusion, the decision of the Court of Appeals is affirmed.

Affirmed.

1 Goal 3, "Agricultural Lands,” provides in part:

"Agriculture lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space. These lands shall be inventoried and preserved by adopting exclusive farm use zones pursuant to ORS Chapter 215. Such minimum lot sizes as are utilized for any farm use zones shall be appropriate for the continuation of the existing commercial agricultural enterprise within the area.

"AGRICULTURAL LAND in western Oregon is land of predominantly Class I, II, in and IV soils ...”

OAR 660-15-000(3) (Appendix A). The county found that petitioner’s land falls predominantly into soil classes H and m.

2 The Board’s order found as a fact that the land "has no existing structures; it is likely that partitioning would lead to construction of residences on each of the resulting parcels,” and it stated as a conclusion of law that "[ajpproval of the request to partition the land would violate statewide planning goal 3 and the exclusive farm use statutes set forth in ORS Chapter 215.” Only the applicability of Goal 3 was pursued on judicial review.

3 In 1979 this section was replaced by the authority of the newly established Land Use Board of Appeals to review "land use decisions,” defined to include a decision by a county concerning the "application of . .. [a] subdivision or other ordinance that implements a comprehensive plan.” 1979 Or Laws c 772 §§ l-6a, 26.

■ The dissent would interpret ORS 197.300(l)(b) as delegating to LCDC authority to "require” application of the goals to land use decisions, and to do so only upon a petition by a governmental entity. However, we conclude that this section did not delegate discretionary authority to LCDC but rather "review” of "land conservation and development action[s]” for compliance with an existing obligation to observe the goals. The requirement of a petition by a governmental entity was designed only to limit the parties who had standing to initiate LCDC’s review (as distinguished from judicial review in circuit courts).