ANDERSON v. PEDEN

LINDE, Justice.

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.1 The Court of Appeals affirmed, 30 Or.App. 1063, 569 P.2d 633 (1977), and we allowed 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 of state and local legislation and administrative law, created by particular statutes, rules, charters, comprehensive plans, ordinances, and resolutions, and the criteria governing such matters as "conditional uses" must be sought there rather than in cases from other cities, counties, or states.2 The court's first task is to interpret the Deschutes County ordinance. See Clackamas County v. Dunham, 282 Or. 419, 579 P.2d 223 (1978).

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.3 Accordingly, the ordinance did not entitle petitioner to a conditional use permit as a matter of right, subject only to such conditions as might be imposed.

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 were too indefinite, and whether they were adopted without proper procedures. Examination of the three challenged criteria yields different results.

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.4 When a statute or other legislation is prefaced by a list of "purposes," these purposes are not ipso facto standards to govern administrative decisions under it. Depending on what other standards the legislation states or requires to be adopted, the statement of purposes may or may not be intended to serve that role. Cf. Marbet v. Portland General Electric Co., 277 Or. 447, 459, 561 P.2d 154 (1977). Unlike the statute in that case, the Deschutes County ordinance does not expressly direct the board to adopt standards for the issuance of permits. Respondents have apparently construed the purposes stated in section 1.020 of their ordinance to be standards for the exercise of further discretion under it. That is not an implausible reading; indeed, the stated "purposes" are largely identical with the "minimum requirements" that this court found to be "standards" under the Milwaukie ordinance in Jehovah's Witnesses v. Mullen, 214 Or. 281, 288-289, 330 P.2d 5, 74 A.L.R.2d 347 (1958). If the respondents have so construed them, the two quoted tests did not require further formal adoption; their reading aloud merely served to give notice which of the items listed in section 1.020 the board considered to be at issue in this proceeding.

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,5 to which the county's zoning ordinance was bound to conform. ORS 197.175, 197.250.6 The board found that petitioner failed the test because the neighborhood was likely to be incorporated within the City of Bend, where mobile homes are not allowed outside special parks, subdivisions, or other designated areas. Petitioner contends that the board misconstrued Goal 14, which is concerned with planning and controlling the rate and sequence of urban growth and the extension of urban services, not decisions on individual conditional uses that do not affect the stated aspects of "urbanization." Thus, if respondents acted upon an erroneous assumption that they were applying a state-imposed test, the court on writ of review should have ordered them to reconsider under a correct view of the law. ORS 34.040(4), 34.100. On the other hand, respondents might have adopted a policy of anticipating the future use of land expected to be annexed to a city even if Goal 14 itself did not impose this test. This would be consistent with other policies favoring cooperation between cities and counties in land use planning.7 But if respondents were adopting such a policy, they apparently stated it for the first time at the opening of this hearing.

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.8

3. Adequacy of the standards. Petitioner attacks the fourth of the five questions on which he was assigned the burden of proof, whether the proposed use would be "an encouragement of the most appropriate use of land," as being an "unconstitutionally vague standard."

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.9 This dual nature of the test risks being submerged in an ad hoc reaction to the concrete proposal. But petitioner has difficulty in finding a constitutional premise for his attack.

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 shibboleth that all legislative delegation of authority must be tested by the verbal adequacy of the standards stated for its exercise. There the authority exercised was rulemaking, i.e. the adoption of building codes which "are in themselves a statement of specific standards for the construction of buildings," 222 Or. at 315, 353 P.2d at 261, and the authorization went to an elected local government that itself had political accountability for lawmaking as well as administration.

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.10 We have no basis for holding that articulation of standards in advance of a specific conditional-use proceeding is imposed on Deschutes County by the federal fourteenth amendment.

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.11

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 the form of a general rule. Whether it stands as an element for all similar decisions or was applied only in deciding this case cannot be determined on the record before us. Adoption of more meaningful criteria than "appropriate use" by general rulemaking in advanace of a concrete case may well be the best safeguard against the risk of inconsistent and ad hominem decisions, but it does not necessarily follow that such a procedural requirement can be deduced directly from the constitutional obligation to avoid favoritism. Petitioner has presented no argument that the requirement can be inferred from a relevant statute, charter, or ordinance. Since the proceedings in this case, the legislative assembly has in fact required that land use permit decisions be based on "standards and criteria which shall be set forth in the zoning ordinance or other appropriate ordinance or regulation ...." ORS 215.416(5).12 The statute will presumably govern any renewed application petitioner may make. Thus we need not further pursue the question of implying a rulemaking requirement from constitutional or other premises.

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).13 It deserves notice that in the cases invalidating requirements of neighborhood consent, the views of neighboring landowners were not only made a factor in the decision of the responsible authorities; rather, the actual decision was delegated in whole or in part to this class of interested private parties.14 However, apart from constitutional objections there are good reasons why law-makers do not make the preferences of a class of private persons a factor to be counted in deciding upon individual applications of public policy. The class whose wishes count on a question such as a conditional use has no self-evident contours (who is within the relevant "neighborhood?"), nor is it obvious how to weigh their preferences (does one purporting to speak for a household of six carry three times the weight of a childless couple?); the risk is that those with the strongest views, or the greatest personal interest, will count disproportionately to the larger number of those who are content to entrust the decision to the responsible officials. Thus the ordinance places on the planning commission and board members themselves the responsibility for determining the community's interests in plans and developments that will fix the use of land for a period of years, a period during which there will be normal, continual turnover in the persons immediately concerned. This is equally so whether there is objection or absence of objection or even affirmative support for the proposal. Petitioner is correct that the ordinance makes neither support nor objection a factor to be considered in a conditional use decision. Of course, this does not preclude a commission or board from considering the evidence submitted by the persons most familiar with the neighborhood insofar as it bears on the objective factors important to the future of the area affected by the proposed use.

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.15 Petitioner claims that they nevertheless were the actual though not the acknowledged basis for the denial of his application. The record shows the following: After the first hearing on petitioner's application, the planning commission approved the conditional use. Upon objections by opponents the County Board of Commissioners referred the application back to the planning commission. The planning commission disapproved the proposal after a second hearing and after a further hearing the board in turn denied the application. The board in a letter of notification explained this decision on several grounds, the first of which read as follows:

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, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), but it is not limited to such sensitive areas. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 995 (1947).16 The losing party may contend that the original decision has merely been dressed up in legally acceptable garb. But a remand generally presupposes that the acting body might reach the same result on proper grounds, and when nothing contrary appears in the record, proceedings by writ of review provide little room for such a contention.

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, 1976.17 The excerpts show that at those later hearings, members of the planning commission were plainly placing substantial weight on the presence of neighborhood opposition as such, while downplaying the impact on property values as a criterion. But we cannot infer from these later minutes of the planning commission that the Board of Commissioners in petitioner's case simply repeated its rejection on the ground of neighborhood opposition and "rationalized" it by cleaned-up findings and conclusions, as petitioner contends. The planning commission may simply not yet have "got the message" of the board's adoption of more systematic and judicious criteria and findings following the remand by the circuit court in this case. The commission's errors in the later proceedings may have been corrected by the board on appeal. Petitioner did not attempt to submit evidence that the board itself engaged in so inconsistent and unprincipled application of its asserted standards for conditional use permits as to amount to a sham, and we have no occasion to consider whether or how such a showing could be made within the existing form of proceeding on writ of review. Accordingly, the court did not err in its decision on writ of review.

Affirmed.

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.1 I do not believe the standards promulgated by the county were proper in light of the language used in the controlling ordinance, and I would therefore reverse the decision of the Court of Appeals.

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.2

Secondly, even if it is conceded that this interpretation of the ordinance is not compelled by the actual language used, I cannot agree with the majority's assertion that the problem of construing the ordinance is resolved solely by reference to the interpretation adopted by the county.3 Although the county's interpretation is entitled to some deference, consideration must also be given to the reasonable expectations of the property owner who purchases his property on the basis of existing use restrictions. In my view, the majority's approach is not only unfair to the property owner, it also does little to encourage the county to be precise in drafting land use restrictions.

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.4

For these reasons, I respectfully dissent.

TONGUE and LENT, JJ., join in this dissent.