Strawberry Hill 4 Wheelers v. Board of Commissioners

Court of Appeals of Oregon

Strawberry Hill 4 Wheelers v. Board of Commissioners

588 P.2d 65, 37 Or. App. 575, 1978 Ore. App. LEXIS 2275

Court of Appeals of Oregon·Decided December 18, 1978·No. No. 33160, CA 11086·Published·Cited by 1 cases

Opinions

JOHNSON, J.

Plaintiffs appeal the judgment of the trial court quashing a writ of review contesting a road vacation by Benton County. The trial court concluded that the county’s decision was legislative and, thus, not subject to writ of review. See ORS 34.040.¹

The older cases have been in conflict as to whether vacation of a road is legislative or quasi-judicial. Compare Holmes v. Graham, 159 Or 466, 80 P2d 870 (1938) with Portland Baseball Club v. Portland, 142 Or 13, 18 P2d 811 (1933). However, since vacation of a road affects land use, it is doubtful that cases decided prior to Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973) are entitled to any weight. The postFasano decisions indicate that where a municipal land use decision concerns a large area of land, and there is multiple ownership, the decision is legislative. See, e.g., Neuberger v. City of Portland, 37 Or App 13, 586 P2d 351 (1978). Here the vacated road was 4.3 miles in length serving 20 to 30 square miles of timberland near Mary’s Peak. The amended petition for writ of review disclosed that the abutting landowners included the United States Forest Service, the Bureau of Land Management, the City of Corvallis, a private timber company and individual landowners. Cf. Joyce [578] v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976). The writ was properly quashed.

Affirmed.

Footnotes

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JOHNSON, J.

Plaintiffs appeal the judgment of the trial court quashing a writ of review contesting a road vacation by Benton County. The trial court concluded that the county’s decision was legislative and, thus, not subject to writ of review. See ORS 34.040.¹

The older cases have been in conflict as to whether vacation of a road is legislative or quasi-judicial. Compare Holmes v. Graham, 159 Or 466, 80 P2d 870 (1938) with Portland Baseball Club v. Portland, 142 Or 13, 18 P2d 811 (1933). However, since vacation of a road affects land use, it is doubtful that cases decided prior to Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973) are entitled to any weight. The postFasano decisions indicate that where a municipal land use decision concerns a large area of land, and there is multiple ownership, the decision is legislative. See, e.g., Neuberger v. City of Portland, 37 Or App 13, 586 P2d 351 (1978). Here the vacated road was 4.3 miles in length serving 20 to 30 square miles of timberland near Mary’s Peak. The amended petition for writ of review disclosed that the abutting landowners included the United States Forest Service, the Bureau of Land Management, the City of Corvallis, a private timber company and individual landowners. Cf. Joyce [578] v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976). The writ was properly quashed.

Affirmed.

Footnotes

Strawberry Hill 4 Wheelers v. Board of Commissioners, 588 P.2d 65, 37 Or. App. 575, 1978 Ore. App. LEXIS 2275 (Or. Ct. App. 1978).

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