# Frankland v. City of Lake Oswego

> Oregon Supreme Court · December 31, 1973 · 267 Or. 452

URL: https://www.frixlaw.com/law-library/cases/9550732

## Case

- **Full name:** FRANKLAND Et Al, Respondents, v. CITY OF LAKE OSWEGO Et Al, Petitioners
- **Court:** Oregon Supreme Court
- **Decided:** December 31, 1973
- **Citations:** 267 Or. 452; 517 P.2d 1042; 1973 Ore. LEXIS 505
- **Precedential status:** Published
- **Opinion:** Dissent by O'Connell
- **Judges:** O'Connell, McAllister, Denecke, Holman, Tongue, Howell
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9550732

## Opinion text

O’CONNELL, C. J.,
dissenting.
The majority opinion disposes of this case upon a theory different from that employed either by the trial court or the Court of Appeals. This variation is not surprising in light of the ambiguous nature of plaintiffs’ claim. Their initial request, directed to the Lake Oswego City Council, simply sought a reduction in the proposed size of the Christensen apartment building. Once their complaint was filed, however, this simplicity disappeared despite repeated attempts by the trial court to identify the theory upon which plaintiffs were proceeding. It appears that at times plaintiffs’ attack was upon the validity of the PUD zoning for the entire project, at times upon the validity of the approval for the final plan for Phase IV, and at still other times on the conformity of the Christensen building to the final plan adopted by the city.
As a result, wo find three different courts applying three different hypotheses in reaching a decision. The Court of Appeals rested its opinion upon the “change in circumstance” test set forth in Roseta v. County of Washington, 254 Or 161 , 458 P2d 405 , 40 ALR3d 364 (1969). The trial court, on the other hand, held that this test did not apply but that the test was “whether there .has been a showing that, the action *484 taken, by the city and its planning commission was clearly unreasonable and arbitrary and had no substantial relation to the legitimate objects sought to be gained, that is, the furtherance of public health, morals, safety or welfare.”
We now decide, apparently, that the case is to be disposed of on the ground that the construction of the Christensen apartment building violated the Lake Oswego PUD ordinance because it did not conform to the architectural sketches submitted as part of the Phase IV final plan.
The majority does not say that the Christensen apartment is incompatible with the general plan or subject to attack because it violates plaintiffs’ claimed interest in the continuance of the single-family dwelling zone; the rationale is that the apartment building does not comport with the sketches. One cannot be sure from the majority opinion, but apparently the majority would hold that if sketches had been presented showing an apartment building having the design of this apartment building, it would have been legally constructed under a valid ordinance.
The principal vice of the opinion is that it magnifies out of all proportion one aspect of planning (the architectural design of a building) at the eost of many other more important considerations in formulating a good land use plan.
The architectural character of the Christensen apartment could not be looked upon as an isolated feature in framing the planned-unit development. All of the other features of the plan relating to traffic circulation, parking, drainage, sewage disposal, population pressure, open areas, etc., had to be considered *485 and, in fact, were thoroughly considered by both the city and the developers over the course of at least two years. We may assume also that both the city and the developers located all of the housing units, including this apartment, consistent with the best possible planning objectives, other than the possible objection to the architectural style of the Christensen apartment building. In addition, the city complied with all notice and hearing requirements prior to approving the plan. Thereafter, when plaintiffs challenged the construction of this building before the City Council, the council referred the matter to the planning commission. After plaintiffs had been given an opportunity to be heard, the commission, with the actual building blueprints before it, ruled that the Christensen apartment building was in compliance with the Phase IV plan. Lake Oswego Code 53.420 vests the planning commission with the authority to approve the kind of change alleged by plaintiffs, since it is empowered to approve any change in a final plan which does “not alter total density, ratio of dwelling unit types, boundaries of the planned-unit development or location or area of public spaces.” ① *486 Inherent in this authority is the power to determine that no change has been made. Plaintiffs were given a hearing though none was required under Lake Oswego Code 53.420. ②
As of the date of the planning commission’s decision, actual construction had not begun, no building permits had been issued, no construction-related financial commitments had been finally made, and no litigation was pending. Prom this and the other matters recited above, it can be seen that there is no evidence in this record to justify the inference that the planning commission acted arbitrarily, capriciously, in bad *487 faith, or under the Mnd of pressure which precluded it from acting fairly. In this setting, its decision that the Christensen apartment building was a garden apartment should be conclusive.
I cannot join in an opinion which holds the entire planned-unit development scheme for Phase IV void because the final plan was somewhat indefinite with respect to the appearance of the structures designated as “garden apartments.” This vagueness, I take it, would not be fatal to an ordinary Euclidean zoning ordinance. But, the opinion seems to say, because a planned-unit development by its nature is so flexible, there must be a crystallization of the plans prior to the enactment of the ordinance in order to avoid giving the developer carte blanche to construct any kind of a structure he pleases.
I repeat, to rest the validity of governmental action entirely upon the sufficiency of sketches overemphasizes a detail in the whole process of passing upon a land use plan. There is nothing in the PUD enabling ordinance requiring sketches showing specific architectural styles. It is consistent with the language of the ordinance to conclude that it contemplated only the conceptual portrayal of the type of building and its juxtaposition with other features of the plan, leaving the refinements of architectural style to be worked out sometime before actual construction begins. ③ The city must have assumed that the term *488 “garden apartments” had sufficient meaning to give it the necessary control over the kind of structure to be located in the designated area. The effect of our opinion is to say either that the term “garden apartment” has no meaning, or that if it does we, rather than the City Council, will decide which structures qualify under that term. We do not substitute our judgment for that of governmental agencies in other areas of the law; there is no reason for us to make an exception in case of zoning. The term “garden apartment” may be vague, but surely the planning commission is better equipped to apply it than is this court, and we have no right to second-guess or superimpose our judgment over that of the commission.
“53.420 Changes to final development plan.
“The owner-applicant may make such changes in the approved final plan and program as are consistent with any subsequent subdivision plat approved by the planning commission, provided such changes do not alter total density, ratio of dwelling unit types, boundaries of the planned-unit development or location or area of public spaces. In the event a subdivision plat containing such changes is not submitted for approval to the planning commission, proposed changes to the approved final plan and program may be submitted in writing to the planning director for approval and amendment to the final plan and program on file with the city provided such changes do not alter dwelling unit density; do not alter the ratio of different types of dwelling units to each other; do not increase or change the type or location of commercial struc *486 tures; do not change the boundaries of the planned-unit development and do not change the location and area of public open spaces and recreational area.
“Changes which alter or change dwelling unit density, ratio of number of different types of dwelling units, commercial uses, boundaries of the planned-unit development or affects location or area of open and recreational spaces shall be made in the form of a petition for approval of a new planned-unit development and shall be made in accordance with this article.”
At the hearing there was testimony to the effect that the Christensen building was a garden apartment. No record of the hearing exists because it took place prior to our decision in Fasano v. Washington County Comm., 264 Or 574 , 507 P2d 23 (1973). Nevertheless, in the circuit court Carl Rohde, chairman of the Lake Oswego Planning Commission when the Christensen building was approved, gave the following account of certain testimony received at the courtesy hearing:
“* * * [A] garden apartment in quotation marks, is not defined in general acceptance in the architectural profession or in land management. And one of our members at that special hearing testified or stated that he had specifically looked at various developments around the country — he is an architect— and that he saw garden apartments that were several stories higher than this one and larger in bulk and he also saw garden apartments which were one or two story, three or four unit buildings so that in the absence of any specific legally or generally accepted definition of a term, we in the design profession or the architectural profession, say that we just do what we individually think is correct.”
Lake Oswego Code 53.330 provides in relevant part: “In planned-unit developments containing more than twenty-five acres the developer shall submit architectural sketches as required above [for developments less than twenty-five acres] for each phase of development containing less than twenty-five acres before the time such phase begins actual construction.” (Emphasis added.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9550732. Public record. Not legal advice.