Twin Rocks Watseco Defense Committee v. Sheets

516 P.2d 472, 15 Or. App. 445, 1973 Ore. App. LEXIS 817

• Court: Court of Appeals of Oregon
• Decided: December 3, 1973
• Status: Published

Opinions

SCHWAB, C.J. .

Plaintiffs’ complaint and supplemental complaint

① allege, in essence, that: (1) on April 14, 1972, an application was filed with appropriate Tillamook County, officials to rezone an area from R-3 (high density residential) to R-2 (medium density residential); (2) apartment buildings are a permitted use in areas zoned R-3, but are not a permitted use in areas zoned R-2; (3) on May 25,1972, inter veñor, with actual knowledge of the pending zone change application, applied to county'officials for a building permit to construct a 32-unit apartment building; (4) on June 19, 1972, a building permit was issued to ihtervenor; (5) on July 26,1972, the county commissioners rezoned the land in question from R-3 to R-2; and (6) therefore, inter-venor’s contemplated construction of the apartment building is now prohibited by the new zone.

Interven or 5s demurrer raised the legal question of whether he was entitled to proceed with construction of the ápartment building in spite of the zone change solely on the basis of the building permit that was valid under existing zoning when it was issued. The trial court answered- this question in the affirmative and sustained the demurrer. Plaintiffs appeal. We reverse.

In general, Oregon statutes authorize county officials to. formulate zoning ordinances that meet their local needs. See, ORS ch 215. However, the same statutes establish a basic outline and provide -certain minimum standards with which each county zoning ordinance must comply. For present purposes, the relevant minimum standards are:

“The. lawful use of any building, structure, or land at the time of the enactment of any zoning regulation or amendment thereto, may be continued as - such although not in conformity with the zoning regulation * * *” ORS 215.130 (5)... :

. “The location, erection, construction * * * of a building or other structure * * * in violation, .of * * * [a zoning] ordinance or regulation * * * shall be deemed a nuisance.” ORS 215.180.

“No person shall * * * construct * * a building or other structure * * * in violation of * * * [a zoning] ordinance or regulation * * ORS 215.190.

The general rule is stated in ORS 215.180 and 215.190 — it is illegal to maintain a building or other use of land that does not comply with existing zoning ordinances at the time construction begins. This general rule is qualified by ORS 215.130 (5) which allows the continued “use of any building” after adoption of a zoning ordinance or amendment even if the building is “not in conformity with” the ordinance or amendment. As used in ORS 215.130 (5), “use. of any building” is a term of art; it means an existing building or a building upon which substantial work has been completed — it does not mean a building planned, but not under construction. Clackamas County v. Holmes, 11 Or App 1, 501 P2d 333 (1972), reversed, 265 Or 193, 508 P2d 190 (1973); Washington County v. Stark, 10 Or App 384, 499 P2d 1337, Sup Ct review denied (1972).

It follows that these statutes require rejection of the notion that mere possession of a building permit entitles a property owner to proceed with construction prohibited by an amendment to a zoning ordinance if there has been no actual construction before the amendment was adopted. In such a situation, adoption of a zoning amendment in effect revokes outstanding braiding permits which have not yet been substantially acted upon.

This conclusion is supported by authority in analogous situations.

In general, a permit or license does not create irrevocable rights, but, instead, is subject to modification or revocation by subsequent changes in law. E.g., Asbury Hospital v. Cass County, 72 ND 359, 7 NW2d 438 (1943); Railway Exp. Agency v. Commerce Com., 374 Ill 151, 28 NE2d 116 (1940); see generally, 51 Am Jur2d 133, Licenses and Permits § 145.

Oregon cases are in accord. In Portland v. Cook, 48 Or 550, 87 P 772, 9 LRA (ns) 733 (1906), defendants were prosecuted for violating an ordinance prohibiting maintaining a slaughterhouse. They defended on the grounds that an earlier ordinance had granted them the right to operate a slaughterhouse. The Supreme Court held the rights created by the earlier ordinance were subject to modification or revocation by the later ordinance. See also, Daniels v. City of Portland et al, 124 Or 677, 265 P 790, 59 ALR 512 (1928), in which it was held that a property owner who built in compliance with existing requirements had to nevertheless comply with additional requirements enacted after the building was completed.

Turning to the specifics of building permits and zoning laws, the commentators state: ■

“It is generally held that neither the filing of an application for a building permit nor the issuance of a building permit, although valid and issued in conformity with the provisions of the zoning ordinance, alone confers any rights in the applicant or permittee as against a change in the zoning ordinance which imposes further limitations upon the use or structure proposed. * * *

“.Where the landowner has done nothing subsequent to obtaining the permit, he is usually held to be bound by any change in the zoning ordinance even if its effect is to nullify the permit.”' (Footnotes omitted.) 2 Eathkopf, The Law of Zoning and Planning 57-2 to 57-4, § 1 (3d ed 1966).

_ “The general rule is that permits for buildings' and businesses are not per se protected against revocation in effect by subsequent enactment or amendment of zoning laws prohibiting the building, business or use for which they' have been issued. That is to say, a municipality may revoke a permit where zoning is enacted or changed to prohibit the use and where the permittee has not materially changed his position in reliance on. the permit. Otherwise stated, the legality of a use is determined by the zoning law governing at the time of its commencement, not by the zoning law prevailing when a permit issues * * 8 McQuillin, Municipal Corporations 497, § 25.156 (3d ed 1965).

It appears that few, if any, of the cases cited by the commentators were decided on the basis of statutes as specific as OES 215.130 (5), 215.180 and 215.190. Instead, most of those cases approach the problem ón a common law basis, balancing the interests' of the public In effective land use planning against the'interests of individual property owners in knowing for certain when they can proceed with and complete a construction project. In Oregon this balance has already been struck by the above-discussed statutes.

4. Finally, we note that although no prior Oregon cases have ■ reached this exact result, in dicta we have assumed the rule to be:

“* * * There is an exception to the ‘actual use’ requirement [for a nonconforming use] in situations where' a property owner has' incurred substantial and legally sufficient expense in reliance upon a previously issued building permit * * Clackamas County v. Holmes, 11 Or App at 9.

The Supreme Court, in reversing our determination in that case that there had not been substantial enough expense to qualify as a nonconforming use, did not express any disagreement with this proposition.. See also, Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532, Sup Ct review denied (1973).

For the reasons stated above, we now conclude that onr statement in Holmes is correct, i.e., that the minimum necessary to establish a nonconforming use is a building permit plus substantial action thereon, and that a building permit, standing alone, is insufficient to do so.

Reversed and remanded.

Iritervenor argues' that the pleadingá áre defective for technical reasons. We find no merit in this contention.