Opinion

Fasano v. Board of County Com'rs of Washington Cty.

  • 264 Or. 574
  • 507 P.2d 23
  • 1973 Ore. LEXIS 491
Court
Oregon Supreme Court
Filed
Mar 2, 1973
Status
Published
Author
Bryson
On the bench
Howell, Bryson
Cited by
151 cases

Overruled on other grounds by Neuberger v. City of Portland, 288 Or. 585 (1980)

requiring proof that for a change in conformance with the comprehensive plan, at a minimum, there should be proof that (1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared to other available property

How later courts described this case

  • requiring proof that for a change in conformance with the comprehensive plan, at a minimum, there should be proof that (1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared to other available property
  • "[Legislative] action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, [whereas executive or judicial power applies] a general rule or policy to specific individuals, interests, or situations."
  • all land use regulatory proceedings must not only be fair, but must also appear fair to all parties involved
  • “Local and small decision groups are simply not the equivalent in all respects of state and national legislatures.”

Written by the judges who cited it.

Later courts went against this

  • Overruled on other grounds by Neuberger v. City of Portland, 288 Or. 585 (1980)

    Second, LUBA examined OPC’s contention that the three newly elected commissioners were biased and had prejudged the application, thus depriving OPC of an impartial tribunal as required by Fasano v. Washington Co. Comm., 264 Or 574, 588, 507 P2d 23 (1973), disapproved on other grounds by Neuberger v. City of Portland, 288 Or 585, 607 *586 P2d 722 (1980).
    Oregon Supreme CourtFeb 26, 19807 citing opinionsother groundsRead it
  • Disapproved on other grounds by Neuberger v. City of Portland, 288 Or. 155 (1979)

    264 Or 574, 507 P2d 23 (1973), disapproved on unrelated grounds, Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979),
    Oregon Supreme CourtDec 4, 1979other groundsmedium confidenceRead it
  • Declined to follow by Hampton v. Richland County, 292 S.C. 500 (1987)

    In any case, we reject the Fasano doctrine.
    Court of Appeals of South CarolinaApr 13, 1987Read it

The opinion

BRYSON, J.,

specially concurring.

The basic facts in this case exemplify the prohibitive cost and extended uncertainty to a homeowner when a governmental body decides to change or modify a zoning ordinance or comprehensive plan affecting such owner’s real property.

This controversy has proceeded through the following steps:

1. The respondent opposed the zone change before the Washington County Planning Department and Planning Commission.

2. The County Commission, after a hearing, allowed the change.

3. The trial court reversed (disallowed the change).

4. The Court of Appeals affirmed the trial court.

5. We ordered reargument and additional briefs.

6. This court affirmed.

*590 The principal respondent in this case, Fasano, happens to be an attorney at law, and his residence is near the proposed mobile home park of the petitioner A.G.S. No average homeowner or small business enterprise can afford a judicial process such as described above nor can a judicial system cope with or endure such a process in achieving justice. The number of such controversies is ascending.

In this case the majority opinion, in which I concur, adopts some sound rules to enable county and municipal planning commissions and governing bodies, as well as trial courts, to reach finality in decision.. However, the procedure is no panacea and it is still burdensome.

It is solely within the domain of the legislative branch of government to devise a new and simplified statutory procedure to expedite finality of decision.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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