Opinion
No. 34-193
Argued July 24, 1975 Judgment vacated; appeal dismissed September 10, 1975 Reconsideration denied October 15, 1975
Petition for review denied November 25, 1975
Appeal from Circuit Court, Washington County.
ALBERT R. MUSICK, Judge.
Richard D. Roberts, Portland, argued the cause for appellants. On the briefs were Rankin, Walsh, Ragen Roberts, Portland. Gregory S. Hathaway, Assistant County Counsel, Hillsboro, argued the cause for respondents. With him on the brief were Lawrence R. Derr, County Counsel, and John M. Junkin, Assistant County Counsel, Hillsboro.
Before SCHWAB, Chief Judge, and THORNTON and LEE, Judges.
JUDGMENT VACATED; APPEAL DISMISSED.
By this writ of review proceeding, plaintiffs seek to challenge two decisions of the defendant county: (1) the rezoning of certain property owned by Herbert A. Stark; and (2) the granting of a conditional use permit to Mr. Stark. We are unable to reach the merits because of a jurisdictional defect, the fact that Mr. Stark was never served with any notice of this proceeding.
The county's conditional-use decision was "quasi-judicial" under Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), and ORS 34.040 for purposes of review by way of writ of review proceedings. The county's rezoning decision may well have been legislative, rather than quasi-judicial, precluding review by way of a writ of review. See, Culver v. Dagg, 20 Or. App. 647, 532 P.2d 1127, Sup Ct review denied (1975). But for present purposes we can assume that the rezoning decision was also quasi-judicial.
ORS 34.080 requires:
"* * * A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ."
In N.W. Env. Def. Center v. City Council, 20 Or. App. 234, 531 P.2d 284, Sup Ct review denied (1975), we interpreted "opposite party" in a similar situation to be the owner of the subject property. Indeed, there might well be due process problems raised by any attempt to adjudicate questions involving the possible uses of Mr. Stark's property without any notice to Mr. Stark so that he has an opportunity to be heard. See, Schroeder v. City of New York, 371 U.S. 208, 83 S Ct 279, 9 L Ed 2d 255, 89 ALR2d 1398 (1962).
There having been no service upon the opposite party, the circuit court lacked jurisdiction. N.W. Env. Def. Center v. City Council, supra.
Judgment vacated; appeal dismissed.