Fasano v. Board of County Commissioners of Washington County, Supreme Court of Oregon (1973)

In 1970, the A.G.S. Development Company, the owner of 32 acres which had been zoned R-7 (Single Family Residential), applied for a zone change to P-R (Planned Residential), which allows for the construction of a mobile home park, the intended development type. The P-R classification was established in 1963, and is known as a “floating zone” because the ordinance created a zone classification authorized for future use but not placed on the zoning map until its use a particular location is approved by the governing body. The Board of County Commissioners approved the change from R-7 to P-R and found that the change allows for “increased densities and different types of housing to meet the needs of urbanization over that allowed by the existing zoning.” The plaintiffs, homeowners in Washington County, unsuccessfully opposed this zone change, and applied for and received a writ of review. The defendants of the case are the Board of County Commissioners and A.G.S. Development Company.
The lower courts reversed the zoning change because the commissioners (1) had not shown any change in the character of the neighborhood which would justify the rezoning and (2) had failed to show that the change was consistent with the comprehensive plan for Washington county.
The defendants argue that (1) the action of the county commissioners approving the change is presumptively valid, requiring the plaintiffs to show that the commissioners acted arbitrarily, (2) it was not necessary to show a change of conditions in the area before a zone change could be approved, and (3) the change from R-7 to P-R was in accordance with the comprehensive plan.

The trial court found in favor of the plaintiffs and disallowed the zoning change. The Court of Appeals affirmed this decision.

Is the rezoning by the county commission of the 32 acres owned by A.G.S. from R-7 to P-R a legislative act, placing the burden of proof upon the plaintiffs, or a judicial act, placing the burden of proof upon the commission, and what standards must be met for such an act?
Main questions listed on pages 101-102:
By what standards does a county commission exercise its authority in zoning matters?
Who has the burden of meeting those standards when a request for change of zone is made?
What is the scope of court review of such actions?

The decision rendered by the trial court and Court of Appeal was affirmed. The zoning change was disallowed.

In order to make a zoning change, it must be proved that the change is in conformance with the comprehensive plan. The proof must at a minimum show (1) that there is a public need for a change of the kind in question and (2) that the need will be best served by changing the classification of the particular piece of property in question as compared with other available property.
Because the action of the commission in this instance is an exercise of judicial authority, the burden of proof should be placed upon the one seeking change. In this case, the burden was not sustained before the commission. The rationale from the commission for the decision was insufficient to justify a change of use.

The test for judicial versus legislative action is given below:
“Basically, this test involves the determination of whether action produces a general rule or policy which his applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.” Pg. 103