Appeal from Circuit Court, Washington County. Albert R. Musick, Judge. No. 32-741.
Thomas A. Huffman, Hillsboro, argued the cause for appellants. With him on the brief were Huffman and Zenger, Hillsboro.
Edward J. Sullivan, County Counsel, Hillsboro, argued the cause for respondents. With him on the brief was W. Louis Larson, Assistant County Counsel, Hillsboro.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
This is a writ of review proceeding. ORS 34.020 et seq. Plaintiffs appeal from a circuit court ruling affirming the Washington County Board of Commissioners' denial of plaintiffs' application for a zone change. The fundamental question is whether the record substantiates the decision. See Lindley v. City of Klamath Falls, 8 Or App 375, 494 P2d 464 (1972).
Plaintiffs' property is located in Washington County and has a 252-foot frontage on Cornell Road beginning approximately 200 feet west of the intersection of NW. 107th Avenue and NW. Cornell Road. The property has been used for various commercial
businesses since 1946 and is now being used as a headquarters for plaintiffs' engineering and house remodeling business. The Washington County Comprehensive Zoning Plan, adopted in 1959, designated the intersection of NW. 107th Avenue and NW. Cornell Road as an arterial intersection. In accordance with this designation, the Plan specified "Neighborhood Commercial" development at this intersection. The plaintiffs' application for zone change was from R-10 to C-4 which, under the Washington County Zoning Ordinance, includes numerous commercial uses. In spite of the "Neighborhood Commercial" designation in the Comprehensive Plan, the Washington County Zoning Ordinances enacted since 1959 have always zoned the subject property in R-10 zone (Residential). The only property in the vicinity of the subject property which is not of residential character, and which is not zoned R-10, is a lot located at the intersection of NW. 107th Avenue and NW. Cornell Road. This property, like the subject property, was occupied for commercial purposes (service station and small market) prior to the adoption of the 1959 Plan, and has continued to operate in the same capacity to the present date. The record indicates that the zoning of this property was changed from R-10 to C-4 at some time after the adoption of the 1959 Plan (no specific dates are indicated).
Plaintiffs filed an application to change the zoning of the subject property from R-10 to C-4. In R-10, the subject property is a nonconforming use. The proposed change to C-4 would allow expansion of its commercial uses much beyond the restricted nature of its present nonconforming commercial use. The Washington County Planning Commission, after hearing, recommended that the rezoning be denied. Pursuant to
Section 2301 of the Washington County Zoning Ordinance, plaintiffs appealed the decision of the Planning Commission to the Board of County Commissioners. After hearing, the Board denied the change. The Board's hearing record before us indicates it (1) examined aerial photographs and exhibits which explained land use and development in the subject area; (2) heard the testimony of the Washington County Zoning Administrator and the Washington County Planning Director; and (3) considered the testimony and written opinions of various opponents and proponents of the proposal. Based upon the information gathered at this hearing and the recommendation of the Planning Commission, the Board took its action. The findings of fact were stated in the motion of one of its members:
"I would move that the zone change 71-413-Z be denied and that the Board adopt as findings that substantial change in the area since the 1959 plans suggested by the imminent change, in that area, deteriorating traffic conditions, change[d] land use patterns, and the character and density of the surrounding area, suggests that the proposed zone changes [sic] is not in the public interest."
The circuit court found that the Board acted with procedural regularity in giving plaintiffs a fair hearing on the application, and that there was sufficient evidence before the Board to provide a rational basis ...