Marggi v. Ruecker

533 P.2d 1372, 20 Or. App. 669, 1975 Ore. App. LEXIS 1696

Opinions

SCHWAB, C. J.

The question presented by this appeal is: Is an amendment of a comprehensive land use plan as it affects a single small parcel of property “judicial” as distinguished from “legislative” as those words are used in Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973) Í As we interpret Fasano, such an amendment is judicial.

The city of Hillsboro owns a 5.29-acre tract of land which is currently used by the city as a park. Hillsboro’s comprehensive long-range land use plan designates the tract for use as a park. Hillsboro’s current zoning ordinance designates the tract as residential. The Hillsboro city council decided that the tract was not and would not in the future be suitable for use as a park, and decided that its best present and future use was for commercial purposes.

Rather than proceeding- directly to change the zoning- of the tract, the council decided that the first step should be to amend the comprehensive plan to change the designation of the tract in the plan from “park” to “commercial.”

Footnotes

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① It did so following a legislative as distinguished from a judicial-type hearing as those terms are defined in Fasano.

Petitioners, residents of Hillsboro, in a writ of review proceeding, sought to have the council’s action set aside for various reasons, including- the fact that the council’s action was not preceded by a judicial-type hearing. The circuit court denied review because it viewed the council’s action as “* * * a political and legislative matter not reviewable by this court.”

To hold that the council’s action in changing the comprehensive plan as it relates to a single small tract of land was legislative rather than judicial would effectively negate the primary holding of Fasano. As Fasano states:

“* * * Although we are aware of the analytical distinction between zoning and planning, it is clear that under our statutes the plan adopted by the planning commission and the zoning ordinances enacted by the county governing body are closely related; both are intended to be parts of a single integrated procedure for land use control. The plan embodies policy determinations and guiding principles; the zoning' ordinances provide the detailed means of giving effect to those principles.” 264 Or at 582.

Fasano goes on to state:

“* * * The more, drastic the change, the greater will be the burden of showing that it is in conformance with the comprehensive plan as implementéd by the ordinance, that there is a public need for the kind of change in question, and that the need is best met by the. proposal under consideration. As- the degree of change increases, the burden of showing that the potential impact npon the area in. question was carefully considered and weighed will also increase * * 264 Or- at 586.

The clear import of the latter passage from Fasano is that he who seeks a change of the existing permitted use of a. specific tract of land to a, use different from the' use contemplated by the comprehensive plan has a far greater' burden of proof than does he who seeks permission to use such a tract in' the manner contemplated by the comprehensive plan. Thus to allow the city of Hillsboro to change the plan with regard to the tract here in question without the safeguard of a judicial-type hearing would be to give the city the right to change the permitted use without assuming and meeting the full burden of justification required by Fasano as á prerequisite to such a change.

It follows that when the issue before a governmental body is a proposed change of the permitted use of a specific small parcel of land, that issue can be resolved only by the application of the standards of proof and public interest enunciated in Fasano and this must be done in the manner prescribed by Fasano —-that is, a judicial-type hearing.

We emphasize that the issue here involves changing the permitted use of a single specific tract of land as distinguished from changing the permitted use of a large body of land comprised of many tracts held by different ownerships. When the latter is the case, the required proceedings are legislative in nature as distinguished from judicial, regardless of whether the proceedings involve Step 1, changing the plan, or Step 2, changing the zoning ordinance. See, Culver v. Dagg, 20 Or App 647, 532 P2d 1127 (1975).

Reversed and remanded.

It is not necessary for us to here decide whether an amendment of a zoning ordinance changing the permitted use of a specific tract of land to a use in conflict with that contemplated by the plan must always be preceded by an amendment of the plan. For certainly, even if such is not required, there is nothing improper about doing so and thereby keeping the comprehensive plan current. Nor is it necessary for us to decide whether or not in such an instance, if the intent is that both the plan and the zoning ordinance are to be amended at approximately the same time, there is any good reason why a single judicial-type hearing would not suffice for both amendments.