FASANO v. BOARD OF COUNTY COM'RS OF WASHINGTON
489 P.2d 693 (1971)
Louis J. FASANO et al., Respondents, v. THE BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY AND A.G.S. DEVELOPMENT COMPANY, a Corporation, Appellants.
Court of Appeals of Oregon, Department 2.
Review Granted January 4, 1972.
Edward J. Sullivan, County Counsel, and Joe D. Bailey, Hillsboro, argued the cause for appellants. With them on the briefs was Carrell F. Bradley, Hillsboro.
Louis J. Fasano, Portland, argued the cause and filed the brief for respondents.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
Petitioners, homeowners in Washington County, sought, by writ of review, to set aside the granting of a zone change by the Board of Commissioners of Washington County. In holding for petitioners, the trial court found there was insufficient
The tract in question contains approximately 32.7 acres in the east end of Washington County and is owned by defendant A.G.S. Development Company. On January 8, 1970, defendant, desiring to build a trailer court, filed with the Washington County Planning Commission an application for a change of the zone designation from Residential R-7 to Planned Residential P-R. On March 10, 1970, a public hearing was held by the commission. At that time the commission had before it the report and recommendations of the staff of the Planning Department of Washington County in favor of the requested change.
The commission, after hearing, denied the application for lack of a majority vote. The petitioners then appealed to the board of county commissioners. After hearing testimony and considering the evidence presented, a motion to approve the zone change was passed by a three-to-two vote. The following findings of the board of commissioners, taken from the recommendations of the planning department, were entered:
Petitioners, seeking to have the board's order set aside, obtained the issuance of a writ of review from the Circuit Court of Washington County. Upon trial, the court reversed the order of the board, basing its decision on the ground that there was not a sufficient showing of change of condition to support the change.
In its brief, the appellants assign as sole error that the trial court
In Archdiocese of Portland v. County of Wash., 254 Or. 77, 458 P.2d 682 (1969), the court said:
The county adopted a comprehensive plan pursuant to ORS 215.050 and in 1959 made its original zone designation. This did not provide for a P-R district, which was subsequently created by ordinance. The land in question was zoned in 1959 as Residential R-7. No change was made in its classification at the time the P-R classification was added to the 1959 zoning ordinance, and it continued to be zoned as R-7. It was not until the challenged order that the property in question was transferred to P-R from R-7.
The county contends that since the comprehensive plan had been changed by the subsequent creation of the P-R zone, that fact authorized the board to take a single piece of property out of another zone in which it had been from the time of the original zoning ordinance and put it in the P-R zone. It contends further that it has the right to do this even though as to the particular parcel in question there is no evidence in the record of any change of condition nor in the uses of any of the property in the general area surrounding it since the properties were zoned in 1959. It is not contended that this was done as a part or at the time of the creation of the P-R zone.
We do not think that the subsequent creation of an additional zoning classification by itself sets aside the rules governing the validity of the transfer at some subsequent date of a single piece of property from an established zone within which it had been originally placed to the zone subsequently created. To so hold would be to place a premium upon form rather than substance. There is no necessary connection between the wisdom of creating a new classification of permissible uses of land under a county-wide zoning ordinance and the designating of a single piece of property as appropriate for placement within that — or any other — zone.
Defendants urge since the board here found that Washington County has a need to provide areas of increased residential density, that alone is sufficient to make the transfer of a particular piece of property from one zone to another valid, despite the absence of any evidence of a change in the condition of any of the property directly affected, including the parcel transferred.
In the subsequent case of Roseta v. County of Washington, 254 Or. 161, 166, 458 P.2d 405 (1969), the Supreme Court in its opinion quoted with approval in a footnote from Offutt v. Board of Zoning Appeals of Baltimore County, 204 Md. 551, 105 A.2d 219 (1954):
In 1 Anderson, American Law of Zoning § 5.03 (1968), the author states at 239:
Thus it is necessary to show that a change in zone of a single parcel not only is consistent with the comprehensive zoning plan but also that some change with respect to that particular property or in the area where it is located has occurred justifying the change. Unlike Follmer v. County of Lane, Or. App., 91 Adv.Sh. 1765, 480 P.2d 722, 92 Adv.Sh. 683, 486 P.2d 1312, Sup.Ct. review denied (1971), where there was ample evidence of change of conditions affecting the property, there was no such showing here. Here the trial court found:
It follows, then, that the judgment of the trial court should be affirmed.
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