Shanks v. Washington County

539 P.2d 1111 (1975)

J. King SHANKS, Jr., and Cheryl Shanks, Appellants, v. WASHINGTON COUNTY et al., Respondents.

Court of Appeals of Oregon.

Argued and Submitted July 24, 1975.

Decided September 10, 1975.

Richard D. Roberts, Portland, argued the cause for appellants. On the briefs were Rankin, Walsh, Ragen & Roberts, Portland.

Gregory S. Hathaway, Asst. County Counsel, Hillsboro, argued the cause for respondents. With him on the brief were Lawrence R. Derr, County Counsel, and John M. Junkin, Asst. County Counsel, Hillsboro.

Before SCHWAB, C.J., and THORNTON and LEE, JJ.

SCHWAB, Chief Judge.

By this writ of review proceeding, plaintiffs seek to challenge two decisions of the defendant county: (1) the rezoning of certain property owned by Herbert A. Stark; and (2) the granting of a conditional use permit to Mr. Stark. We are unable to reach the merits because of a jurisdictional defect, the fact that Mr. Stark was never served with any notice of this proceeding.

The county's conditional-use decision was "quasi-judicial" under Fasano v. Washington Co. Comm., 264 Or. 574, 507 P.2d 23 (1973), and ORS 34.040 for purposes of review by way of writ of review proceedings. The county's rezoning decision may well have been legislative, rather than quasi-judicial, precluding review by way of a writ of review. See, Culver v. Dagg, Or. App., 75 Adv.Sh. 999, 532 P.2d 1127, Sup.Ct. review denied (1975). But for present purposes we can assume that the rezoning decision was also quasi-judicial.

ORS 34.080 requires:

"* * * A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ."

In N.W. Env. Def. Center v. City Council, Or. App., 75 Adv.Sh. 425, 531 P.2d 284, *1112 Sup.Ct. review denied (1975), we interpreted "opposite party" in a similar situation to be the owner of the subject property. Indeed, there might well be due process problems raised by any attempt to adjudicate questions involving the possible uses of Mr. Stark's property without any notice to Mr. Stark so that he has an opportunity to be heard. See, Schroeder v. City of New York, 371 U.S. 208, 83 S. Ct. 279, 9 L. Ed. 2d 255, 89 A.L.R.2d 1398 (1962).

There having been no service upon the opposite party, the circuit court lacked jurisdiction. N.W. Env. Def. Center v. City Council, supra.

Judgment vacated; appeal dismissed.