“Generally, the apportionment of negligence [in comparative negligence] is for the jury and will not be upset except where it is manifest as a matter of law that the allocation is unreasonably disproportionate.” (Internal quotation marks and citation omitted.)
How later courts described this case
- “Generally, the apportionment of negligence [in comparative negligence] is for the jury and will not be upset except where it is manifest as a matter of law that the allocation is unreasonably disproportionate.” (Internal quotation marks and citation omitted.)
Written by the judges who cited it.
The opinion
FOLEY, J.,
specially concurring.
The question presented in this case is whether the holder of a valid building permit may proceed with construction thereunder in the face of a subsequent zone change purporting to prohibit the type of construction covered by the building permit. Our holding is that the holder of the building permit proceeds at his peril. I agree that existing Oregon law suggests the result reached in this case and for that reason I concur in the opinion. However, I desire to point out that several other jurisdictions have refused to accept the majority rule for what appears to be good reason. For example, the Supreme Court of Washington held in Hull v. Hunt, 53 Wash2d 125, 331 P2d 856 (1958):
“Notwithstanding the weight of authority, we prefer to have a date certain upon which the right vests to construct in accordance with the' building ' permit. We prefer not to adopt a rule which forces the court to search through (to quote from State ex rel. Ogden v. Bellevue, [45 Wash2d 492, 275 P2d 899 (1954)]) ‘the moves and countermoves of * * * parties * * * by way of passing ordinances and bringing actions for injunctions’ — to which may he added the stalling or acceleration of administrative action in the issuance of permits — to. find that date upon which the substantial change of position is *452 ■made which finally vests the right. The more practical rnle to administer, we feel, is that the right vests when the party, property owner or not, applies for his building permit, if that permit is thereafter issued. ’This rule, of course, assumes that the permit applied for and granted be consistent with the zoning ordinances and building codes in force at the time of application for the permit.” 53 Wash2d at 130. ■
The City Planning Code of San Francisco ① provided that once a permit had been granted, subsequent amendments to the zoning ordinance would not affect it as long as construction was diligently pursued in accordance with the building code. The California Supreme Court in commenting on this provision said:
“Prior to the enactment of section 150, even a permit which had achieved administrative finality eonld be revoked on the basis of a subsequent change in the zoning laws. The permittee could win immunity from such ‘ex post facto’ revocation only by constructing a substantial portion of the structure authorized by his permit in good faith reliance upon the prior law. A permittee who delayed construction in the face of an impending amendment to the zoning laws might find that he had not progressed far enough in time to qualify for immunity; one who proceeded with unseemly haste ran the risk that his conduct might bear the stigma of bad faith. No facile formula informed the permittee how to strike the delicate balance which would afford the desired immunity.” (Footnotes, omitted.) Russian Hill Improvement Assn. v. Board of Permit Ap *453 peals, 66 Cal2d 34, 39, 56 Cal Rptr 672, 423 P2d 824 (1967).
I agree with, the reasoning in the above cases that the better role would be one which provides the most certainty, that is, that the right to build be fixed on the date the permit issues. This was the bolding of the circuit court.
Section 150, subdivision (d) provided:
“Any building or use for which a permit has been lawfully granted prior to the effective date of an amendment to the City Planning Code * * * may be completed and used in accordance with the approved plans, provided that construction is. started and diligently prosecuted to completion * * * and such building or use. shall thereafter bé deemed to be a lawfully existing building or use.”