Clark v. Dagg

588 P.2d 1298, 38 Or. App. 71, 8 A.L.R. 4th 1075, 1979 Ore. App. LEXIS 2255
CourtCourt of Appeals of Oregon
DecidedJanuary 15, 1979
Docket36-676, CA 8222
StatusPublished
Cited by9 cases

This text of 588 P.2d 1298 (Clark v. Dagg) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Dagg, 588 P.2d 1298, 38 Or. App. 71, 8 A.L.R. 4th 1075, 1979 Ore. App. LEXIS 2255 (Or. Ct. App. 1979).

Opinions

[73]*73GILLETTE, J.

Plaintiff Community Planning Organization #7 (CPO #7) appeals from the dismissal of its petition for a writ of review. The only issue is whether it has standing to obtain review. We agree with the trial judge that it does not and affirm.

The petition for writ of review was filed May 11, 1976, by the petitioners Robert S. Clark and CPO #7. It alleged that Gordon Merrill was seeking a zone change from the Board of Commissioners of Washington County. It alleged, inter alia, that plaintiff Robert S. Clark "is a property owner and resident of Beaver-ton, Oregon, and resides northeast of and in reasonable proximity to the area [where the zone change was sought].” It further alleged that CPO #7 "is a duly organized and established citizens’ advisory planning committee and neighborhood organization, organized as provided in the Board’s Washington County Comprehensive Framework Plan adopted November 27, 1973, as amended (hereinafter 'CFP’), and the Merrill property is within the boundaries of the area represented by CPO #7.” There was a further allegation that the substantial rights of residents who are represented by CPO #7 had been injured by the defendants’ exercise of their quasi-judicial authority.

The petition also alleged that the Washington County Planning Commission had recommended denying the requested zone change, but that the defendant county commissioners had granted the change. The petition then alleged seven different ways in which the Board’s decision was alleged to have been procedurally defective.

The court issued its writ of review on the 11th day of May, requiring a return be made on or before June 14, 1976. A second amended order for writ of review was issued on May 25, 1976, with the same return date.

[74]*74Not surprisingly, on September 27, 1976, the real party in interest — Gordon Merrill, the developer— sought leave to intervene in the writ of review proceedings. He noted that, "among other things this petitioner as a party defendant wishes to challenge the interest and standing of said plaintiff Community Planning Organization No. 7 in the above entitled proceedings.” Leave to intervene was granted September 28.

On December 19, 1976, the defendant county commissioners moved to quash the writ of review as it pertained to the plaintiff Robert S. Clark on the ground that the plaintiff in his petition had not established an injury of some substantial right of his in order to have standing. The motion was based upon our decision in Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583, rev den (1975). A few days later, on January 6, 1977, intervenor Gordon Merrill moved for an order quashing the writ of review on the ground that neither of the named parties plaintiff had established an injury to some substantial right, and that the plaintiff Robert Clark had not been a party to any process or proceeding before the Planning Commission or the Board of Commissioners. Neither motion was ruled upon at the time.

The matter came on for trial on January 11, 1977. Plaintiff Clark and one other witness testified. The matter was closed with briefs to be submitted by each party.

On March 10, 1977, the trial court entered a memorandum opinion determining that neither of the plaintiffs had standing to sue. Plaintiff CPO #7 appeals.1

At the evidentiary hearing, plaintiffs had the burden of proving their standing. Duddles v. City County of West Linn, supra, 21 Or App at 328-331. [75]*75Clark, who purported to be appearing both in his capacity as an individual and as a member and former chairman of CPO #7, was the only member of CPO #7 who testified at the hearing and that testimony went only to his own interests which would be affected by the proposed land development. There was no proof offered respecting the interests of other members as individuals or of the organization itself in its representative capacity.

Clark testified that he lives approximately 1% miles from the rezoned property and is separated from it by a subdivision and a major highway. He testified that he will be injured by the rezoning in three ways: (1) the proposed development will increase the burden on already overcrowded schools which his children will probably attend; (2) it will increase traffic on narrow rural roads which he travels once or twice a week; and (3) unlawful rezoning in conflict with the Comprehensive Framework Plan (CFP), particularly as it mandates consideration of the effect of proposed development on schools and roads, deprives him of assurance that the Board will implement the CFP in other areas.

CPO #7 is part of a Washington County program to involve citizens in the planning process. The Land Conservation and Development Commission has approved the program as complying with its citizen involvement goal. CPO #7 is an unincorporated association without formal rules or organizational structure, except that it has five elected officers. Anyone who attends a meeting is entitled to full participation, including the right to vote. There is no restriction as to place of residence, degree of personal interest, or even as to age.

The only issue before us is whether CPO #7 has standing when it has shown no particular injury to the interests of its members or itself, except in respect to one member. Standing is claimed under either of two theories: (1) a representational theory, deriving standing from the showing made with respect to its one [76]*76identified member, or (2) a de jure theory, based upon the nature and origin of CPO #7 itself.

The standing of CPO #7, if any, arises from the interworking of two related statutory grants of a right of review, each of which, in different words, articulates the standing requirement. CPO #7 asserts standing as an aggrieved party under former ORS 215.422, which provided:

"(1) A party aggrieved by the action of a hearings officer taken under subsections (1) to (4) of ORS 215.416 may appeal such approval or denial to the governing body of the county. * * *
"(2) * * * [T]he governing body shall hold a hearing on the action of the hearings officer appealed from * * *.
"(3) The governing body may amend, rescind or affirm the action of the hearings officer.
"(4) Any person described by subsection (1) of this section who is aggrieved by the action of the governing body trader subsection (3) of this section may seek a review thereof as provided by ORS 34.010 to 34.100.”

This statute is pertinent inasmuch as the application for the zone change was heard initially by the planning commission acting as a hearings officer pursuant to ORS 215.406(2). ORS 34.010 to 34.100 set out the procedures and standards for procuring a writ of review.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bailey v. State
12 P.3d 173 (Wyoming Supreme Court, 2000)
Jefferson Landfill Committee v. Marion County
686 P.2d 310 (Oregon Supreme Court, 1984)
Warren v. Lane County
662 P.2d 755 (Court of Appeals of Oregon, 1983)
Benton County v. Friends of Benton County
653 P.2d 1249 (Oregon Supreme Court, 1982)
Benton County v. Friends of Benton County
642 P.2d 358 (Court of Appeals of Oregon, 1982)
Merrill v. Van Volkinburg
636 P.2d 466 (Court of Appeals of Oregon, 1981)
Strawberry Hill 4 Wheelers v. Board of Commissioners
601 P.2d 769 (Oregon Supreme Court, 1979)
1000 Friends of Or. v. MULTNOMAH CTY., ETC.
593 P.2d 1171 (Court of Appeals of Oregon, 1979)
Clark v. Dagg
588 P.2d 1298 (Court of Appeals of Oregon, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
588 P.2d 1298, 38 Or. App. 71, 8 A.L.R. 4th 1075, 1979 Ore. App. LEXIS 2255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-dagg-orctapp-1979.