Opinion
No. CC76-512, CA 7451
Argued September 26, affirmed December 27, 1977, reconsideration denied February 1, petition for review denied June 20, 1978
Appeal from Circuit Court, Clatsop County.
Thomas E. Edison, Judge.
Richard P. Benner, Portland, argued the cause and filed the briefs for appellants.
No appearance for respondents City Council of Cannon Beach, Oregon; Bruce M. Haskell, Francis Nevan, Lee M. Crowell, Robert G. Nannetti, John Ward, City Council Members, Alma Haralampus, City Recorder.
James H. Clarke, Portland, argued the cause for opposite parties — respondents W. C. Bauman Co., Inc., Robert G. Bauman and W. C. Bauman. With him on the brief were George L. Kirklin, Vawter Parker and Dezendorf, Spears, Lubersky Campbell, Portland.
Before Thornton, Presiding Judge, and Tanzer and Buttler, Judges.
Affirmed.
BUTTLER, J.
Tanzer, J., specially concurring.
Petitioners appeal from an order quashing their petition for writ of review on the ground that it failed to allege sufficient facts to support their sole contention that respondent City Council exceeded its jurisdiction when it undertook to review a determination made by its Planning Commission. Petitioners do not seek review of any order or decision made by the City Council; they seek, rather, a determination that the Council did not have jurisdiction to make any order or decision with respect to the matter.
A brief history is necessary to understand the unusual posture of this dispute. In June, 1975, the City Council of Cannon Beach adopted Ordinance No. 75-5, pursuant to which certain streets, or parts of streets, were vacated. The ordinance recited that the vacations were "tied to a planned development," and that some controls on that development were necessary "before the vacations will be in the public interest" and then found that the vacation would benefit the City and the public "provided the following conditions are imposed * * *." Numerous conditions are then set forth, among them being the requirement that construction of contemplated development be commenced within three years, and that a "Planned Unit Development-type process for review of each phase of construction" be established. The ordinance goes on to set forth "Conditions and Procedures for Review of Development," which, on their face, appear to delegate to the Planning Commission authority to make the necessary determinations without public hearings, and "on an administrative basis."
Ordinance 75-5, Conditions and Procedures for Review of Development, § 7, provides:
"This procedure is not to be construed as a P.U.D. in a P.U.D. zone, but is designed for the purpose of review and coordination with department heads and other consultants of relevant areas, without public hearings, but acting by and through the Planning Commission on an administrative basis."
Among such "conditions and procedures" are the requirements that the Planning Commission submit copies of a development plan to a geologist for comment, and that the Planning Commission review the comments to determine whether: "Assurances have been given by engineering geologist or soils engineer that minimal hazards will be caused by placement of improvements." The Planning Commission was required to notify applicant whether, "in its opinion, the foregoing have been satisfied and approval is given, or if not, how they can be satisfied with further plan revision."
The petition for writ of review alleges that with respect to the matter in dispute, the Planning Commission retained a geologist, and on September 10, 1976, met to consider his report, which included a recommendation that no development should be allowed in the "active foredune" and "deflation zone" areas because of instability. On September 26, 1976, it is alleged, the Planning Commission unanimously accepted the recommendation of the geologist, and approved development only in the areas found by the geologist to be stable.
While the ordinance does not provide for any appeal, the developer filed a "Notice of Appeal" with the City Recorder. On October 19 the Council held a public hearing and, over petitioners' objections, reviewed the Planning Commission's decision; On November 3 that decision was reversed by the Council. Petitioners, alleging that the City Council lacked jurisdiction to review the decision of the Planning Commission under Ordinance 75-5, prayed for an order setting aside the decision of the Council solely on that ground.
In spite of some ambiguities, we construe Ordinance 75-5 as a present vacation of certain streets, subject to numerous conditions subsequent. Such conditions on street vacations have been upheld. Portland Baseball Club v. Portland, 142 Or. 13, 18 P.2d 811 (1933). Petitioners' contention is that the ordinance did more than vacate certain streets: it authorized construction of a condominium development and established specific procedures for review of plans, etc., with respect thereto, vesting exclusive authority in the Planning Commission with no appeal. Having established these procedures, they contend, the Council must abide by them, citing Adam v. City of Scappoose, 27 Or. App. 219, 555 P.2d 809 (1976). ( See Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 569 P.2d 1063 (1977).)
Ordinance 75-5, Conditions on Development as Part of Vacation, § 6, provides:
"The suggested vacations and realignments shall be null and void and of no further force and effect and all vacated portions of streets shall remain and be public rights of way if construction has not begun within a three (3) year period."
The ordinance "ordains" that certain streets are "hereby vacated" or are "hereby declared vacated," and in Section 4 provides:
"That the vacation of said streets is expressly conditional upon all of the conditions set forth in this Ordinance having been met. In the event that all conditions are not met within the time period specified herein, said vacation shall fail and the streets shall revert to public ownership."
The Portland Baseball Club case treated the street vacation as a legislative matter. We need not decide whether a street vacation will, in all instances, be treated as a legislative act in light of Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), because the ordinance, as such, is not challenged here. According to Fasano, at least as applied to zoning decisions, whether an act is quasi-judicial or legislative involves a determination of whether the action produces a general rule or policy which is applicable to an open class of individuals, interests, or situations (legislative), or whether it entails the application of a general rule or policy to specific individuals, interests, or situations (quasi-judicial). 264 Or at 581.
While it is true that the ordinance is more than an ordinary street vacation, petitioners do not challenge the validity of the ordinance. They contend only that the delegation to the Planning Commission is absolute and not subject to review. The language of section 7 (quoted in footnote 1) is subject to the interpretation that the entire matter with respect to whether the conditions are satisfied was delegated to the Planning Commission to be determined on an "administrative basis" and without public hearings. Assuming that the Council intended a nonreviewable delegation of ministerial acts, some of the conditions involve quasi-judicial determinations rather than ministerial acts. Assuming further, but without deciding, that quasi-judicial functions may be delegated to the Planning Commission with no Council review, a quasi-judicial determination in land use cases may not be made without an opportunity for interested parties to be heard. Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973).
But see Link v. City of Coos Bay, 23 Or. App. 648, 543 P.2d 1082(1975), holding that legislative functions may not be delegated to the planning commission without review by the city council; the planning commission may only advise and recommend.
In this case, it appears on the face of the petition that the question involved here is quasi-judicial: forming an opinion as to whether "minimal hazards will be caused by" the proposed placement of the improvements, and if not, what can be done to reduce the hazards to an acceptable standard. Since the delegation to make that decision provided that it was to be made without a public hearing, the City Council retained jurisdiction to review the Planning Commission action; therefore the order quashing the petitioners' writ of review was proper.
Affirmed.
Assuming arguendo that a city council may lawfully divest itself of a responsibility by an irrevocable delegation to a city agency or officer, then regardless of whether the act or decision delegated to and performed by the planning commission under Ordinance 75-5 was quasi-judicial or not, such a divestiture cannot be presumed from a silent ordinance. Ordinance 75-5 expresses no such divestiture and grants no finality to the action of the planning commission. Accordingly, the city council retained jurisdiction to review the action by the planning commission. The motion to quash was properly granted.
The theory of the majority that a delegation of quasi-judicial authority is invalid without provision for hearing is very interesting, but it is not presented by the pleadings or appeal in this case. The existence or lack of review jurisdiction in the city council is the sole issue raised below or here. For all we know, there may have been a public hearing; at least the petitioners have not challenged the proceedings for lack of one. There is no justification for the majority reaching out for a decisional issue that is not presented and avoiding the one that is squarely presented.
Paragraph XIX of the Petition for Writ of Review alleges lack of jurisdiction as the sole claim of irregularity of the city council action:
"In accepting the developer's appeal, reversing the unanimous decision of the Planning Commission, and permitting the development on all portions of the Subject Property, the Council exceeded its jurisdiction in that:
"1. Neither Ordinance 75-5 nor any other provision of law establishes an appeal to the Council of the Planning Commission's decision taken pursuant to Ordinance 75-5.
"2. In the absence of any provision of law establishing an appeal, the Planning Commission's decision regarding the developer's compliance with conditions for the street vacation is final for purposes of review.
"3. Pursuant to ORS 271.130(4), the developer's remedy was to seek review of the Planning Commission's decision in Clatsop County Circuit Court."
I therefore specially concur.