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Fasano v. Board of County Commissioners of

March 2, 1973


On review from the Court of Appeals.

Edward J. Sullivan, Washington County Counsel, Hillsboro, argued and reargued the cause for petitioners. With him on the briefs were William Bradley Duncan, Assistant County Counsel, Carrell F. Bradley, Joe D. Bailey, and Schwenn, Bradley, Batchelor & Bailey, Hillsboro.

Louis J. Fasano, Portland, argued and reargued the cause for respondents. With him on the briefs were Veatch, Lovett & Stiner, Portland.

Donald C. Ashmanskas, Beaverton, argued the cause for amici curiae on reargument. With him on the briefs were James M. Mattis, Eugene, Merle Long, Albany, and Edward C. Harms, Jr., Springfield, on behalf of the League of Oregon Cities. Also on the briefs were Duane R. Ertsgaard, Salem, Roy E. Adkins, Eugene, Richard Crist, West Linn, Paul Mackey, Portland, and Gary Rueter, McMinnville, on behalf of the Association of Oregon Counties; and Frank L. Whitaker, Portland, on behalf of Oregon Chapter, American Institute of Planners.

In Banc. Howell, J. Bryson, J., specially concurring.


The plaintiffs, homeowners in Washington county, unsuccessfully opposed a zone change before the Board of County Commissioners of Washington County. Plaintiffs applied for and received a writ of review of the action of the commissioners allowing the change. The trial court found in favor of plaintiffs, disallowed the zone change, and reversed the commissioners' order. The Court of Appeals affirmed, 7 Or App 176, 489 P2d 693 (1971), and this court granted review.

The defendants are the Board of County Commissioners and A.G.S. Development Company. A.G.S., the owner of 32 acres which had been zoned R-7 (Single Family Residential), applied for a zone change to P-R (Planned Residential), which allows for the construction of a mobile home park. The change failed to receive a majority vote of the Planning Commission. The Board of County Commissioners approved the change and found, among other matters, that the change allows for "increased densities and different types of housing to meet the needs of urbanization over that allowed by the existing zoning."

The trial court, relying on its interpretation of Roseta v. County of Washington, 254 Or 161, 458 P2d 405, 40 ALR3d 364 (1969), reversed the order of the commissioners because the commissioners had not shown any change in the character of the neighborhood which would justify the rezoning. The Court of Appeals

affirmed for the same reason, but added the additional ground that the defendants failed to show that the change was consistent with the comprehensive plan for Washington county.

According to the briefs, the comprehensive plan of development for Washington county was adopted in 1959 and included classifications in the county for residential, neighborhood commercial, retail commercial, general commercial, industrial park and light industry, general and heavy industry, and agricultural areas.

The land in question, which was designated "residential" by the comprehensive plan, was zoned R-7, Single Family Residential.

Subsequent to the time the comprehensive plan was adopted, Washington county established a Planned Residential (P-R) zoning classification in 1963. The P-R classification was adopted by ordinance and provided that a planned residential unit development could be established and should include open space for utilities, access, and recreation; should not be less than 10 acres in size; and should be located in or adjacent to a residential zone. The P-R zone adopted by the 1963 ordinance is of the type known as a "floating zone," so-called because the ordinance creates a zone classification authorized for future use but not placed on the zoning map until its use at a particular location is approved by the governing body. The R-7 classification for the 32 acres continued until April 1970 when the classification was changed to P-R to permit the defendant A.G.S. to construct the mobile home park on the 32 acres involved.

The defendants argue that (1) the action of the county commissioners approving the change is presumptively

valid, requiring plaintiffs to show that the commissioners acted arbitrarily in approving the zone change; (2) it was not necessary to show a change of conditions in the area before a zone change could be accomplished; and (3) the change from R-7 to P-R was in accordance with the Washington county comprehensive plan.

We granted review in this case to consider the questions -- by what standards does a county commission exercise its authority in zoning matters; who has the burden of meeting those standards when a request for change of zone is made; and what is the scope of court review of such actions?

Any meaningful decision as to the proper scope of judicial review of a zoning decision must start with a characterization of the nature of that decision. The majority of jurisdictions state that a zoning ordinance is a legislative act and is thereby entitled to presumptive validity. This court made such a characterization of zoning decisions in Smith v. County of Washington, 241 Or 380, 406 P2d 545 (1965):

"Inasmuch as ORS 215.110 specifically grants to the governing board of the county the power to amend zoning ordinances, a challenged amendment is a legislative act and is clothed with a presumption in its favor. Jehovah's Witnesses v. Mullen et al, 214 Or 281, 292, 330 P2d 5, 74 ALR2d 347 (1958), appeal dismissed and cert. denied, 359 U.S. 436, 79 S Ct 940, 3 L Ed2d 932 (1959)." 241 Or at 383.

However, in Smith an exception to the presumption was found and the zoning held invalid. Furthermore, the case cited by the Smith court, Jehovah's Witnesses v. Mullen et al, supra, at least at one point viewed the contested zoning in that case as an administrative as opposed to legislative act.

At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. There is a growing judicial recognition of this fact of life:

"It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government." Ward v. ...

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