Petitioner applied for a permit to place a mobile home on land which Deschutes County has zoned for agricultural and single-family residential uses and certain "conditional uses," including mobile homes. A denial of this application in 1974 was set aside by the circuit court on writ of review in 1975. The court correctly did not order the permit to be issued but remanded the proceedings to the county, retaining jurisdiction. ORS 34.100. After renewed hearings in 1976, respondents again denied the requested permit, and the circuit court in a supplemental order "denied" the writ of review.
The case presents a number of separate issues which we take up in order.
1. The Deschutes County ordinance. The first issue concerns the conditions under which Deschutes County allows a mobile home to be placed on land zoned "A-1" under its zoning ordinance. We begin with the fact that neither these conditions nor the scope of respondents' discretion in granting or denying a permit follows simply from describing a particular type of structure or land use as a "conditional use." Zoning law is not common law but a branch
Standing alone, the term "conditional use" can convey quite different meanings. It could mean that the specified use is a permitted use whenever certain conditions exist or are satisfied. Or, second, it may mean that the use will be permitted subject to special conditions attached to the individual permit. Third, "conditional use" historically has often been employed simply as a device to permit discretionary decisions on certain uses, without much attention to the meaning of "conditional." See 3 Anderson, American Law of Zoning (2d ed 1968) 147-148, § 18.05. Rather than assuming that the term is a known word of art, it would be helpful if draftsmen would spell out what "conditions" are meant; but the Deschutes County Zoning Ordinance, which contains an extensive list of definitions, does not include a definition of the term "conditional use." Insofar as pertinent to the present case, the ordinance provides as follows:
Article 7 contains these provisions:
This section continues with special provisions concerning conditional use permits for yards, churches, planned developments, and mobile home parks.
Petitioner first argued that the statement in section 3.215 that, in an A-1 zone, a mobile home is "permitted when authorized in accordance with the provisions of Article 7," combined with the statement in section 7.050 that a conditional use "shall comply with the standards of the zone in which it is located except as the standards may have been modified in authorizing the conditional use," lead to the conclusion that a mobile home is permitted whenever it satisfies the general standards of the zone, subject only to whatever additions or modifications are made in the conditional use permit. His reading would give "conditional use" the second of the several meanings referred to above. The county interprets its ordinance as providing more discretion in allowing a "conditional use." This view finds support in the statement in section 7.010 that such uses "may be permitted" and other references to "permitting" or "authorizing" conditional uses. While either interpretation is tenable, we believe that the county may reasonably act on its view of what authority it meant to reserve in its ordinance.
Of course, it does not follow that the county purported to reserve untrammeled discretion to allow or deny such permits. We turn to this issue.
2. The applicable standards. After the original remand by the circuit court, counsel for Deschutes County prepared a memorandum for the conduct of subsequent proceedings, which was read aloud by the Chairman of the County Board of Commissioners at the beginning of the new hearing on petitioner's application. With respect to the issue before the board, the memorandum stated:
The first and second of these questions are not in dispute. Petitioner agrees that his application had to meet the requirements of the A-1 zone and, in turn, of the comprehensive plan, and respondents concede that it met them. The dispute concerns the propriety of the third, fourth, and fifth criteria, on which the board found that petitioner had not met the burden of proof. At issue is whether these tests could properly be added to the first two at all, whether they
On the issue whether they could be added at all, we have held above that the ordinance contemplated the exercise of some range of discretion in allowing or denying conditional uses. Accordingly, it was not improper to make approval of an application contingent on criteria beyond those required by the zone and the comprehensive plan.
Procedurally, two of the three additional tests, whether the proposed use would "conserve and stabilize the value of adjacent property" and whether it would be "an encouragement of the most appropriate use of land," were not newly adopted at the beginning of this proceeding. They were taken verbatim from the "Purpose" section of the Deschutes County Zoning Ordinance.
However, the final test imposed on petitioners, whether the proposed use will "promote orderly and efficient transition from rural to urban use" of property within the Bend urban growth area, presents a problem. This test does not paraphrase a part of the Deschutes County ordinance. It appears to have been taken from Goal 14, "URBANIZATION," of the Goals of the Land Conservation and Development Commission,
The record does not clearly show which view the board took of its "orderly transition" criterion, and respondents fail to address petitioner's contention on this issue. Respondents do not deny that under the ordinance an applicant should be able to learn in advance of making application by what criteria his proposal will be judged. However, assuming that the "orderly transition" test was first adopted in announcing it at the opening of the hearing, the record does not reveal that this objection was raised in the circuit court, nor had petitioner's counsel made objection or claimed surprise at the board's hearing. Therefore the court did not err in not granting relief on this ground.
Like the third test, conservation of property value, the "most appropriate use" criterion was taken from the "Purpose" section of the Deschutes County Zoning Ordinance, supra note 4. As a statement of a goal to be served by a land use ordinance, the phrase to "encourage the most appropriate use of land" is not only unobjectionable, it is self-evident to the point of redundancy. It is also undeniably vague, unless the "appropriate" uses of land are ranked elsewhere. Lifted directly into the decision of an individual case, the phrase telescopes two distinct questions into one: First, what makes one use more "appropriate" than another, which is a policy or value judgment, and second, will the applicant's proposal "encourage" the use that is deemed most appropriate.
Vagueness or indefiniteness of legislative directives has different significance in different contexts. When legislation directly commands or forbids certain conduct at the risk of a penalty, vagueness is regarded as incompatible with due process of law under the fourteenth amendment because the addressee does not have fair notice of what conduct will incur or avoid the penalty, this judgment being left to a prosecutor, a jury, or a court after the fact. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), and cases cited at 162, 92 S.Ct. 839, 31 L.Ed.2d 110; State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969). But this test of penal laws does not apply to the standards of civil liability, as is obvious from such examples as the standards governing negligence, products liability, unconscionability in contract terms, or antitrust law.
The problems are different when legislation delegates authority to make decisions looking to the future rather than imposing sanctions for past or present conduct. The issue then is not lack of fair notice but whether the lawmaker's political responsibility for choosing at least the general direction of public policy among competing alternatives has been abdicated without guidance to administrative officials. It is an issue of the constitutional allocation of powers, not of procedural fairness to particular persons. While it must always be possible to determine what rules can fairly be said to carry out the policy of the delegating legislation under which they are made, such legislation is not unconstitutional merely because the terms of the legislative directive are general and vague.
In Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960), which involved an attack on a county building code adopted under ORS ch. 215, this court rejected the
Here the local government has both acted legislatively in the zoning ordinance, and delegated to its board of commissioners the administrative discretion in further policy development contemplated by the ordinance. The purposes of the ordinance set forth in note 4, including the encouragement of the "most appropriate use of land," certainly summarize the general policy of land-use regulation sufficiently to let respondents proceed to develop more specific policies without having to amend the ordinance. Indeed, respondents could do so even without such a prefatory list. The question remains whether they could refine their general land use policies in the course of deciding upon individual applications without prior rulemaking. In response to the court's request to the parties, petitioner was not able to cite a decision of the United States Supreme Court indicating that policy development under an extremely broad delegation could not constitutionally proceed by the decision of concrete cases without prior rulemaking.
If petitioner's attack on the vagueness of the "most appropriate use" criterion is to have a constitutional footing, it must be found in the risk that ad hoc policy making will grant to some "citizen or class of citizens privileges, or immunities, which, upon the same terms, [do] not equally belong to all citizens." Or.Const. art. I, sec. 20. That risk is real in all discretionary administration. But an attack based on this premise must show that in fact a policy unlawfully discriminating in favor of some persons against others either has been adopted or has been followed in practice.
In this case, it appears that respondents adopted the view that in a conditionally permissible use, compatibility of appearance with surrounding structures was one element bearing on "the most appropriate use of land," although they did not adopt it in
4. Neighborhood opposition. Petitioner contends that respondents' decision was triggered primarily by the opposition of neighboring landowners, and that this is not a permissible basis for decision under the zoning ordinance and under the fourteenth amendment, as applied by the United States Supreme Court in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928).
In response to the court's inquiry, the county agrees that neighborhood objections are not a criterion and denies that they played any role in this decision.
In reversing the board's decision, the trial court held, among other grounds, that this "finding" by itself would not support denial of the application.
After the further hearing following this remand, the board once more denied the application on the ground that petitioner had failed to satisfy the third, fourth, and fifth criteria discussed earlier, but without referring to neighborhood opposition as such. Respondents' position is that opposition testimony at this hearing was considered not as a factor in itself but only as bearing upon the issues of maintenance of land values and compatibility with existing uses. The circuit court sustained the board's findings and conclusions in the supplemental decision of August 26, 1976, which is before us in this case.
Whenever an exercise of judgment or of discretion is set aside on judicial review for resting wholly or partly on improper considerations, a reviewing court may later face the issue whether the improper considerations were eliminated on remand. The problem is particularly troublesome when the initial practice is claimed to have involved discrimination on racial or other constitutionally forbidden grounds, see Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Mount Healthy Board of Education v. Doyle, 429 U.S. 274,
Petitioner submitted excerpts from minutes of the Deschutes County Planning Commission covering hearings held on two other conditional use applications for mobile homes in April and in June, 1976.
HOWELL, Justice, dissenting.
Petitioner applied for a permit to place a mobile home on property he owns in Deschutes County. The county ordinance provides that a mobile home is a "conditional use" in the neighborhood where petitioner's property is located. Petitioner's application was denied because he failed to satisfy standards beyond those required by the ordinance.
The controlling ordinance provides as follows:
I agree with the statement by the majority that the county's discretion cannot be defined solely by reference to the term "conditional use." As noted by the majority, the term "conditional use" may contemplate the following meanings: (1) that the use is permitted only when certain conditions are satisfied; (2) that the use is permitted, but the county can impose conditions on how the property is adapted to the use; or (3) that the use is permitted solely at the discretion of the county. To determine which meaning applies, the court must look to the language used in the ordinance at issue. With respect to the ordinance in the present case, the majority concludes that either of the latter two above interpretations is "tenable," but that "the county may reasonably act on its view of what authority it meant to reserve in its ordinance." With all due respect, I disagree with both these assertions.
First, I do not believe a fair reading of the language in the ordinance supports the assertion that the county reserved discretionary power to grant or deny conditional use permits. The ordinance provides that "the following uses and their accessory uses are permitted when authorized in accordance with the provisions of Article 7: * * 6. Guest house or mobile home." Section 3.215 (emphasis added). Section 7.010 lists a number of conditions that may be imposed by the Planning Commission. All of these conditions, however, go to the matter of adapting the lot to the special use. They are conditions that assume the issuance of the permit, not conditions to be used in deciding whether to issue the permit. This would seem to indicate that the ordinance contemplates the definition of "conditional use" urged by the petitioner, i.e., a use permitted subject to special conditions attached to the individual permit. Thus, the county could require an owner wishing to place a mobile home on his eligible property to place the home on a certain part of the property, to fence, screen or landscape the home so as to shield it from the view of neighbors, etc. The county could not, however, deny the application outright, as it did in the instant case.
Secondly, even if it is conceded that this interpretation of the ordinance is not compelled by the actual language used, I cannot
Finally, above and beyond the implications of the majority opinion with respect to judicial review of zoning ordinances generally, I believe the majority has reached an unreasonable result on the facts of this particular case. The ordinance purports to make mobile homes a "conditional use" in petitioner's neighborhood. One of the "conditions" that petitioner was required to meet was a showing that his proposed use would "conserve and stabilize the value of adjacent property." It would be difficult to convince some people, however, that a mobile home could ever conserve the value of adjacent property. Consequently, the "condition" imposed by the county on use of property as a mobile home site, as a practical matter, prohibits the use. Not only is this "condition" inconsistent with the county's decision to make mobile homes a "conditional use," it also makes the county ordinance at least arguably inconsistent with Goal 10 of the State Land Conservation and Development Commission.
For these reasons, I respectfully dissent.
TONGUE and LENT, JJ., join in this dissent.
Purpose. The purposes of this ordinance include the following:
1. To promote the orderly growth of Deschutes County.
2. To protect and enhance the environment.
3. To conserve and stabilize the value of property.
4. To reduce excessive traffic congestion.
5. To prevent overcrowding of land by establishing standards for population density.
6. To provide adequate open space for light and air.
7. To conserve natural resources.
8. To encourage the most appropriate use of land.
9. To prevent water and air pollution.
10. To facilitate fire and police protection.
11. To provide for community facilities.
12. To promote and protect the public health, safety, convenience, and general welfare and to carry out the Comprehensive General Plan of Deschutes County.
To provide for an orderly and efficient transition from rural to urban land use.
Urban growth boundaries shall be established to identify and separate urbanizable land from rural land.
Establishment and change of the boundaries shall be based upon consideration of the following factors:
The results of the above considerations shall be included in the comprehensive plan. In the case of a change of a boundary, a governing body proposing such change in the boundary separating urbanizable land from rural land, shall follow the procedures and requirements as set forth in the Land Use Planning goal (Goal 2) for goal exceptions.
Any urban growth boundary established prior to January 1, 1975 which includes rural lands that have not been built upon shall be reviewed by the governing body, utilizing the same factors applicable to the establishment or change of urban growth boundaries.
Establishment and change of the boundaries shall be a cooperative process between a city and the county or counties that surround it.
Land within the boundaries separating urbanizable land from rural land shall be considered available over time for urban uses. Conversion of urbanizable land to urban uses shall be based on consideration of:
OAR 660-15-000, App. A.
(2) After the commission acknowledges a city or county comprehensive plan and implementing ordinances to be in compliance with the goals pursuant to ORS chapter 197 and any subsequent amendments to the goals, the goals shall apply to land conservation and development actions and annexations only through the acknowledged comprehensive plan and implementing ordinances unless: ...
It is important to keep in mind that Marbet involved an agency whose authorizing statute directed it sometimes to "set standards and promulgate rules" and sometimes to "adopt standards promulgated as rules," and whose procedures were governed by the Administrative Procedure Act, ORS ch. 183. 277 Or. at 458-464. (Emphasis supplied.) It does not purport to pronounce "administrative common law." Similarly, the procedures for conditional use decisions in Deschutes County must be those expressed or implied in the ordinances, resolutions, charter, and statutes governing these decisions, such as, for instance, the requirement of findings implied from the statutory obligation to measure a zone or plan change against the comprehensive plan. South of Sunnyside Neighborhood League v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977); Roseta v. County of Washington, 254 Or. 161, 458 P.2d 405 (1969). Of course a board may wish to proceed on the analysis stated in Marbet even when no statute compels it to do so.
Petitioner did cite Papachristou v. City of Jacksonville, supra, but as stated above, that decision is a modern statement of the rule against vague penal laws.
Although the ordinance in Archbishop of Oregon v. Baker stated that schools might be erected in residential areas if the city council "approve[d] the location as not detrimental or injurious to the character or the district or to the public health, peace, or safety of the zone," the court did not pursue the question whether compliance with this standard itself forbade discrimination among applicants, a natural construction that would obviate invalidating the ordinance on that ground.
In my view, the majority opinion in the present case goes far beyond our holding in Fifth Avenue Corp. and gives the county's interpretation of its ordinance almost conclusive weight.
In light of the current cost of traditionally constructed housing, I would interpret this goal as imposing a duty on Oregon counties to make reasonable accommodations for use of property as mobile home sites.