Neuberger v. City of Portland

586 P.2d 351, 37 Or. App. 13, 1978 Ore. App. LEXIS 2092

• Court: Court of Appeals of Oregon
• Decided: November 6, 1978
• Docket: 417 998, 417 999, CA 7976
• Status: Published

Opinions

RICHARDSON, P. J.

This appeal concerns the validity of an ordinance of the City of Portland, adopted in September, 1975, granting a zone change from R-20 (single-family residence-20,000 square feet) to R-10 (single-family residence-10,000 square feet) for a 601 acre parcel of undeveloped land in northwest Portland. There are three landowners in the parcel, all of whose interests are subject to purchase contracts or options by a joint venture (applicant) which plans eventually to construct approximately 1,300 single family residences on the parcel. The ordinance allowing the zone change makes development of the parcel contingent on the applicant’s subsequent procurement of city approval for a Planned Unit Development (PUD).

The petitioners, who are mainly owners of property adjacent to the rezoned parcel, sought judicial review of the City’s action by both Writ of Review and Declaratory Judgment. Those two proceedings were consolidated below, and the trial court dismissed the declaratory judgment suit on the ground that the relief sought in it was substantially identical to the relief sought through the writ of review. After trial, the court also dismissed the writ of review. Petitioners appeal both orders of dismissal. We affirm the dismissal of the declaratory judgment and reverse and remand in the writ of review proceeding.

The threshold question in this case is whether the proceedings before the city council were required to comply with the quasi-judicial substantive and procedural requirements of Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973), and subsequent related decisions of the Supreme Court and this court. Oregon’s appellate courts have frequently been called upon to decide whether particular local land-use decisions are quasi-judicial or legislative in nature. In Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 569 P2d 1063 (1977), the Supreme Court observed:

"The property in question is a single compact tract of land under the ownership or control of a single developer. Our references in this opinion to 'single tract’ or 'single parcel’ amendments are convenient ways of describing the type and scale of land-use decisions which we have treated as quasi-judicial. See, e.g., Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973) (zone change on 32 acres under single ownership); Green v. Hayward, 275 Or 693, 552 P2d 815 (1976) (zone change on one 50-acre tract owned by proponent of change and adjacent 90-acre tract upon which proponent held option to purchase); Petersen v. Klamath Falls, 279 Or 249, 566 P2d 1193 (1977) (annexation of 141 acres owned by four individuals who planned a coordinated development). Compare Culver v. Dagg, 20 Or App 647, 532 P2d 1127 (1975) (rezoning of more than half of county; land under diverse ownership); Parelius v. Lake Oswego, 22 Or App 429, 539 P2d 1123 (1975) (rezoning of 73 acres consisting of more than 25 parcels in diverse ownership); Joyce v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976) (rezoning of 842 acres owned by at least 'several dozen’ individuals). We do not intend, by the use of the terms 'single tract’ and 'single parcel’ to adopt a test for determining when a given land-use decision is quasi-judicial rather than legislative. A number of factors such as the size of the area affected in relation to the area in the planning unit, the number of landowners affected, and the kinds of standards governing the decision-makers may be relevant. The decision with which we are now concerned is clearly quasi-judicial, and we find it unnecessary to formulate, in the present case, a test for making that determination. 280 Or at 11, n 5.

It is also unnecessary to formulate a comprehensive test in this case for making that determination. For the reasons which follow, we conclude that a zone change proceeding is necessarily quasi-judicial when it is undertaken at the instance of a single applicant or a combination of applicants with united interests in the parcel they seek to have rezoned.¹

There is consensus among the parties that the zone change in question, involving in excess of 600 acres, was regarded as "a major matter of policy for the City.” However, the potential policy ramifications of a land-use decision are not determinative of whether Fasano applies. The rationale of Fasano is that local land-use decisions must be made in a quasi-judicial setting when there are "dangers of the almost irresistible pressures that can be asserted by private economic interests on local government.” 264 Or at 588. In Sunny side, the Supreme Court characterized Fasano’s purpose as being

"* * * that land use decisions made at the instance of a private party be made only for reasons having to do with the needs and welfare of the community at large rather than for the accommodation of individual landowners or private developers. * * *” 280 Or at 14. (Emphasis supplied.)

See also Auckland v. Bd. of Comm. Mult. Co., 21 Or App 596, 601, 536 P2d 444, rev den (1975).

The cases where we have concluded that land-use decisions were legislative rather than quasi-judicial are distinguishable from the present case, and the distinguishing facts illustrate why the City proceedings in this case were required to be quasi-judicial. In Joyce v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976), we held that the City of Portland’s rezoning of an 842 acre tract, adjacent to the parcel in question here, was a legislative action and not subject to Fasano’s requirements. In Joyce, the rezoning ensued from a sua sponte evaluation by the city council, and the tract contained several dozen individual landowners. We stated:

"When a tract of land separately owned by a substantial number of individuals is rezoned as a result of a governmental evaluation of the existing land-use limitations imposed on the area, the change reflects a general policy and the action of the body is considered a legislative determination. * * *” 24 Or App at 691.

See also Culver v. Dagg, 20 Or App 647, 532 P2d 1127, rev den (1975); and Parelius v. Lake Oswego, 22 Or App 429, 539 P2d 1123 (1975).

Conversely, in this case, there is not a substantial number of landowners in the affected parcel, and the .rezoning was instituted by the single interest which has controlling rights in the entire parcel rather than by an independent government evaluation. The facts in Joyce inherently assured a disinterested decision by the governmental body and imput by the large number of landowners within the affected tract who had conceivably divergent interests. Those assurances are absent here. In this case, approximately 90 owners of property adjoining the parcel participated in the city council’s deliberations. However, that extensive participation by strangers to the tract can only be viewed as a coincidence, and is no basis for the formulation of a rule of law. While the concerned participation in land-use deliberations by persons whose property would be directly impacted by the decision is a constant, the certainty of persons from nearby areas being similarly concerned cannot be assumed; nor, in the absence of quasi-judicial procedures, can the ability of such adjacent landowners to learn of a proposed change or to make their concern known to the decision-making body be assured.

The proceedings before the city council were required to be quasi-judicial and to comply with the requirements of Fasano and following cases. Because quasi-judicial actions are reviewable by writ of review, the trial court committed no error in dismissing the petitioners’ declaratory judgment suit. We accordingly turn to the merits of petitioners’ appeal in the writ of review proceeding.

The task of dealing with that appeal is complicated by the petitioners’ presentation of the issues. The first 84 pages of their 221 page brief contain a statement of facts which is distorted, argumentative and hardly informative. Petitioners then devote 50 pages to a recitation of 42 assignments of error. At page 135, petitioners’ counsel finally commences argument. Much of the argument in the brief consists of points supported by unrelated propositions. In short, petitioners have fired a "whiff of grapeshot” in a 720 degree direction in the hope that something may hit the target.

Given our conclusion that the quasi-judicial requirements of Fasano were applicable to the City proceedings, the principal issue raised by the writ of review is whether the applicant and the City complied with those requirements. Fasano requires that three substantive standards must be met, as shown by the proof of the proponents of a zone change, before the change can be allowed: first, that "the change is in conformance with the comprehensive plan” (or, in the absence of a comprehensive plan, "with generally accepted land use planning standards”); second, that "there is a public need for a change of the kind in question”; and third, that the public need is best met by the proposed change on the proposed land "as compared with other available property.” Fasano, 264 Or at 583, 584; Braidwood v. City of Portland, 24 Or App 477, 481, 546 P2d 777, rev den (1976). A corollary of the third standard is that

"* * * [i]f other areas have previously been designated for the particular type of development, it must be shown why it is necessary to introduce it into an area not previously contemplated and why the property owners there should bear the burden of the departure.” Fasano, 264 Or at 586. (Footnote omitted.)

Petitioners contend that the applicant failed to meet its burden of proof as to those substantive standards, that the City’s findings with respect to those standards were deficient, and that there was no substantial evidence to support the City’s findings. Of the several specific arguments the petitioners make regarding the Fasano standards, only one warrants discussion: whether the applicant proved that the public need could best be accomplished by a zone change on the parcel in question rather than on alternative locations previously zoned or susceptible to being zoned in the same classification as the applicant sought for its property.

The petitioners state that "applicant had no evidence, and acknowledged it had none, concerning alternative sites,” and that there was a report from a City planning official to the effect that there were 3,695 acres of alternative undeveloped land in northwest Portland, a similar number in southwest Portland, and large amounts of undeveloped acreage in the unincorporated areas of Multnomah County and in Washington County. The applicant does not dispute the basic premise of petitioners that there was no proof regarding the feasibility of high density residential development on specific alternative locations. The applicant argues that the absence of such proof does not violate Fasano because, given the nature of the public need for the zone change which the applicant proved, its parcel was uniquely suited to the objectives the City sought to accomplish through the zone change, e.g., proximity of the residential development to the central business area, compatibility with the use of a mass transit system, and the size of the area which could be contiguously developed at R-10 density. In other words, the applicant argues that its proof of what the public need was, simultaneously established that only its own property could suffice to meet the need. As summarized by the applicant:

"The property has a unique capability of fulfilling these needs. There are no other parcels of land in the western portion of the City which have the same characteristics that are necessary to fulfill these needs. Thus there are no comparable parcels which might provide an alternative site for this project and no other sites which Fasano requires the City to compare to the Property.

«*5}C * * *

"* * * Petitioners contend that no one inventoried all of the vacant land within the City of Portland and within the tri-county area. It is correct that there was no such inventory, but Fasano does not require one. As pointed out above, there was ample evidence of the Property’s uniqueness and its suitability to serve the public needs identified by the City Council. * * *” Applicant’s brief at 67, 70-71. (Emphasis added.)

The applicant’s reasoning is circular. The applicant was required to prove, first, the existence of a public need for the zone change, and second, the preferability of effecting that change on its parcel rather than on other available property. The applicant argues that the proof of the first fact obviated the need for proving the second. It is conceivable that evidence could be introduced to establish a public need for a zone change which is so specific that it can be accomplished only on a particular parcel of property. Here, however, it appears that the applicant and the City made an a priori assumption that only one parcel could suffice to meet the public need, and the applicant offered no proof to substantiate that assumption. In sum, Fasano required that the applicant offer evidence that other undeveloped property already zoned or susceptible to zoning at the higher density was either less suited than its property or wholly unsuited for the fulfillment of the "identified public needs” of the City. Applicant’s argument that Fasano requires no comparison because nothing could be comparable begs the question.

Some support for the applicant’s position can be found in Green v. Hayward, 275 Or 693, 552 P2d 815 (1976). There, the Supreme Court stated:

"* * * It is contended that there was no showing of necessity for change in this case, as much of the land in Lane County which had been previously zoned for heavy industrial development had not been used for that purpose. It is also argued that Bohemia’s desire to build its new plant on land which it already owned (or had an option to purchase) was not a proper consideration. Ordinarily this argument would carry considerable weight. The integrity of comprehensive planning would be seriously compromised if a property owner could obtain a zone change on the ground that he did not own any of the land that was already zoned for the type of development he had in mind, or that his proposed development would be less profitable in an appropriately zoned area. In this case, however, * * * [t]he Board could reasonably have concluded that if the plant were not built adjacent to Bohemia’s existing mill, no such plant would be built within the county, and that it was in the public interest to have such a plant constructed. * * *” 275 Or at 708-09.

However, this case is distinguishable from Hayward in that, in the latter, there was in fact only one place anybody could locate a new plant adjoining Bohemia’s existing one. Hence, if there were a public need for the second plant, it would be practicably if not literally impossible for that need to be achieved elsewhere. The "unique location” theory is far more attenuated in this case; no one argues that only one place in the City of Portland is susceptible to development at R-10 density. Moreover, it seems clear that the Supreme Court did not intend its "unique location” holding in Haywardto be liberally transferable to other fact situations. The court stated that, ordinarily, the contrary argument would carry considerable weight.

We conclude that the applicant failed to carry its burden of proof regarding other available property and, for the same reasons the proof failed, the City’s findings on that issue were inadequate and not supported by substantial evidence.

Some of the petitioners’ other contentions warrant brief discussion.

The petitioners argue that ORS 197.275, read together with other sections in ORS chapter 197 and in light of certain language from the Supreme Court’s decision in Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975), prohibited the City from making a zone change of this magnitude without first having adopted a comprehensive plan. ORS 197.275 specifically provides that, pending the adoption of a comprehensive plan, "existing planning efforts and activities shall continue.” Moreover, Baker v. City of Milwaukie and Braidwood v. City of Portland, supra, necessarily contemplate the continuity of zoning actions in localities which have not yet adopted comprehensive plans.

The petitioners next argue that the city council did not comply with ORS 227.170, which provides:

"The city council shall prescribe one or more procedures for the conduct of hearings on permits and zone changes.”

At the time the proceedings in question began, the statute read somewhat differently, but not in respects material here. According to petitioners, there were no "procedural rules enunciated in advance and consistently applied.” The record controverts petitioners’ contention. Cf., Anderson v. Peden, 30 Or App 1063, 569 P2d 633 (1977), rev allowed, 281 Or 1 (1978).

Petitioners next contend that, in two respects, the "conditioning” of the zone change on the subsequent approval of a Planned Unit Development and the procedures relating to the "grant” of the PUD were legally flawed. First, the petitioners say the applicant did not comply with the established procedures of the City code for obtaining PUD approval. However, the applicant was not granted approval of a PUD; it was granted a zone change, and the ordinance granting the zone change provided that high density development on the applicant’s parcel was subject to the approval of a PUD in the future. The other point of the petitioners is that the city’s granting of the zone change and its making development of the parcel subject to the later approval of a PUD amounted to the approval of a "concept” or "master plan,” which we construed another local government’s ordinance as forbidding in Rockway v. Stefani, 23 Or App 639, 543 P2d 1089 (1975), rev den (1976). What we found objectionable in Stefani was the approval of an application for a PUD which was internally incomplete, in that the specific plans for the PUD were to be submitted by the applicant after the PUD was approved. The present situation is not comparable. The applicant as of now has obtained nothing but a zone change. The development of the rezoned tract is subject to the later approval of a PUD. It is true that the zone change ordinance prescribes various requirements for the PUD application, but that does not constitute approval in advance of the PUD.

The petitioners argue next that they were denied an impartial tribunal, and that there were ex parte contacts between the City and the applicant. The first of the ex parte contacts took the form of negotiations between the applicant and the City for the City’s purchase of a different parcel from the one rezoned. (The other parcel was originally included in the application for the zone change, but was not the subject of any action by the City). The second ex parte contact of which the petitioners complain was the participation by one of the applicant’s attorneys in the preparation of the city council’s findings after the council had announced its decision on the zone change. We do not perceive how the petitioners were prejudiced by either of those contacts. The first was over a matter which was not pending before the council, and the second, in addition to occurring after the council had already decided the "contested” issue, was with a person (a city planning official) who had no control over the decision. See Tierney v. Duris, Pay Less Properties, 21 Or App 613, 536 P2d 435, rev den (1975).

In addition to the ex parte contact contention, the petitioners make a variety of arguments to the effect that the city council was biased in favor of the applicant. These arguments are based on secondary matters, such as the City’s allowing a "conditional” zone change for an unlimited period of time pending the applicant’s filing of an application for a PUD. We find the arguments unpersuasive.

The petitioners next argue that the City was required to consider and make its action compatible with the comprehensive plans or other applicable zoning law of Multnomah County, Washington County, CRAG, and perhaps other bodies. This argument is based primarily on petitioners’ understanding of our decision in Frankland v. City of Lake Oswego, 8 Or App 224, 493 P2d 163 (1972), aff'd 267 Or 452, 517 P2d 1042 (1973). We find nothing in Frankland which suggests that a city zoning action affecting territory within the city must comply with other local governments’ zoning laws. Further, we find nothing to suggest that the City’s action here was subject to CRAG’s jurisdiction under the principles we enunciated in Ruegg v. Clackamas County, 32 Or App 77, 573 P2d 740 (1978).

Next, the petitioners object to the inclusion of certain economic data in the City’s findings and to the city council’s hearing evidence pertaining to those economic considerations, when the evidence petitioners sought to introduce relating to the financial condition of the applicant was excluded. The economic data which was considered by the city council and which was included in its findings pertained directly to the proposed development of the rezoned parcel, and not to the financial condition of the applicant. There was no error in the admission or exclusion of the evidence or in the findings.

The final argument of the petitioners which requires discussion is that the city council failed to abide by "generally accepted land-use planning standards,” because it did not adhere to what petitioners understand the Supreme Court to have held in Roseta v. County of Washington, 254 Or 161, 458 P2d 405, 40 ALR3d 364 (1969), that a zone change is not permissible unless there is a change in the character of the neighborhood. Petitioners’ understanding of Roseta was expressly refuted by the Supreme Court in Fasano, where the court stated that Roseta

"* * * should not be interpreted as establishing a rule that a physical change of circumstances within the rezoned neighborhood is the only justification for rezoning. The county governing body is directed by ORS 215.055 to consider a number of other factors when enacting zoning ordinances, and the list there does not purport to be exclusive. * * *” 264 Or at 585.

As earlier indicated, petitioners advance a plethora of arguments in addition to those we have discussed. They are not meritorious, and a discussion of them is not necessary to clarify the law.

The trial court’s dismissal of the declaratory judgment complaint is affirmed. Its order dismissing the writ of review is reversed and remanded with instructions to remand the matter to the city council for hearings and preparation of appropriate findings on the limited issue of the availability and suitability of alternative locations for the realization of the public need already proved by the applicant.

Affirmed in part, reversed in part and remanded with instructions.

1 It also follows from the Supreme Court’s and our decisions that a land-use proceeding must be quasi-judicial, regardless of the source of the motion for change, if only one interest or a small number of related interests can be affected positively or negatively by the change. See, e.g., Marggi v. Ruecker, 20 Or App 669, 533 P2d 1372, rev den (1975), where we held that Fasano’s quasi-judicial requirements were applicable to a comprehensive plan amendment initiated by the Hillsboro City Council and affecting "a single small parcel of property * * 20 Or App at 670.