Tatum v. Clackamas County

529 P.2d 393, 19 Or. App. 770, 1974 Ore. App. LEXIS 850
Court of Appeals of Oregon·Decided December 16, 1974·Published·Cited by 6 cases

Opinions

THORNTON, J.

Defendants Clackamas County and its Board of County Commissioners appeal from a decree enjoining them from implementing or enforcing an initiative ordinance known as “Ballot Measure No. 10, Natural Rivers Measure — Clackamas River Corridor,” adopted by the voters of Clackamas County at the general [772] election of November 7, 1972. The trial court held that the people of Clackamas County have no authority to adopt zoning legislation by the initiative process; that even if such authority existed, the procedural requirements of ORS ch 215 were not complied with in the adoption of the ballot measure; and that the initiative ordinance and the temporary rules and regulations adopted pursuant to the ballot measure were invalid.

The primary issue before us is whether the voters of Clackamas County, a non-home rule county, have the authority to adopt the subject ordinance by the initiative process.

In support of their contention that the initiative measure is valid, defendants argue that the subject ordinance is “local” legislation within the meaning of Art IY, § 1 (5) of the Oregon Constitution, and that the ordinance may properly be enacted by the people of Clackamas County by the initiative process.

From our review of the constitutional and statutory provisions dealing with this question, and prior decisions of our Supreme Court, we reach the conclusion that defendants’ contentions cannot be sustained, and consequently that the lower court did not err in its decision.

[773] The relevant portion of Art IV, § 1 (5), provides:

“The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws * * *.”

It is of course true that the initiative and referendum powers are reserved to the voters of all counties by the above-quoted provision of the Oregon Constitution. It is also true that a county is a “district” within the meaning of Art IV, § 1 (5). State v. Mack, 134 Or 67, 292 P 306 (1930); Briggs v. Stevens, 119 Or 138, 248 P 169 (1926); Schubel v. Olcott, 60 Or 503, 120 P 375 (1912). However, this constitutional provision is not self-executing. In order to determine whether any “district” may in fact exercise that power we must find additional legislative authority t’o do so. In other words, a proper determination of the issue before us requires that we analyze how, to what degree and on what subject matter voters of a non-home rule county may exercise that power.

It is well settled in this state that no “district” may enact a measure by the initiative process under Art IV, § 1 (5) (formerly Art IV, § la), except pursuant to some additional grant of power, either by virtue of a charter or by a specific statute. State v. Port of Astoria, 79 Or 1, 154 P 399 (1916); Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917); Barber v. Johnson, 86 Or 390, 167 P 800, 1183 (1917); Carriker v. Lake County, 89 Or 240, 171 P 407, 173 P 573 (1918); Hansell v. Douglass, 234 Or 315, 380 P2d 977 (1963). Applying the same principles fol[774] lowed in these cases, we must find a specific legislative grant to regulate land use by the initiative in order for the ballot measure in the instant case to be valid.

Defendants argue that the legislature has, indeed, made a specific authorization to the people of any county to use the initiative procedure to adopt land use and zoning ordinances; that not only is the county governing body authorized to adopt land use regulations, but also the legislature has specifically granted to the voters of each county the power to initiate ordinances on the same subject matter..

We first consider defendants’ contention that the legislature ha.s expressly authorized the voters of all counties to initiate ordinances.regulating land use. Defendants cite OES 215.180 (1), which provides:

“Any ordinance adopted under OES 215.010 to 215.190 and 215.402 to 215.422 shall be a local law within the meaning of, and subject to, OES 254.-310.” (Emphasis supplied.),

and OES 254.310, the pertinent portion of which provides :

“The people of every county are authorized to enact, amend or repeal all local laws for their county by the initiative and referendum process * * (Emphasis supplied.),

as supportive of their position. Defendants argue that because OES 215.130 (1) defines all zoning ordinances as local, and that because OES 254.310 provides that the people of every county can utilize the initiative process for all local laws, Ballot Measure No. 10 was properly adopted by the citizens of Clackamas County, pursuant to an express legislative authorization.

[775] In order to properly evaluate defendants’ arguments it is necessary that we first analyze OPS ch 215.

We begin with the well-established rule that a statute is to be construed as a whole, State v. Popiel, 216 Or 140, 337 P2d 303 (1959), and that effect must be given to the over-all policy which the entire statute was intended to accomplish. Wimer v. Miller, 235 Or 25, 383 P2d 1005 (1963).

OPS ch 215 is an organic act authorizing any county in Oregon to undertake land use planning and zoning. The act spells out in great detail the steps a county must follow if it wishes to avail itself of this legislative grant of power:

OPS 215.020 through 215.100 provide for the governing body of the county to establish a planning commission, which must adopt a comprehensive plan for land use and zoning. Also included in these sections are statutory standards upon which the planning commission is to make its decisions, as well as certain procedural requirements such as public notice and hearings.

OPS 215.110 (1) provides for the planning commission to recommend to the governing body ordinances to accomplish the comprehensive plan. OPS 215.110 (3) sets forth the manner in which the county governing body may enact zoning ordinances. The governing body may enact ordinances recommended by the planning commission, or ordinances initiated by itself, provided it first requests .a report and recommendation from the planning commission. OPS .215.-110 (2) also provides for a governing body to adopt ordinances renaming streets, numbering property and controlling subdivisions of land.

[776] Other provisions include authorization for interim zoning ordinances, agricultural land use zoning, review procedures and a host of other matters.

From the foregoing analysis it is apparent that the grant of power to promulgate zoning and land use regulating ordinances is to the county governing body, and is closely limited in its terms. The procedure for adopting such ordinances is as specifically set forth in ORS ch 215. See, Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973). Thus the legislative grant is not general in its application but is restrictive and carefully conditioned.

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Tatum v. Clackamas County, 529 P.2d 393, 19 Or. App. 770, 1974 Ore. App. LEXIS 850 (Or. Ct. App. 1974).

529 P.2d 393 (Tatum v. Clackamas County) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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