Strawberry Hill 4 Wheelers v. Board of Commissioners

JOHNSON, J. Plaintiffs appeal the judgment of the trial court quashing a writ of review contesting a road vacation by Benton County. The trial court concluded that the county’s decision was legislative and, thus, not subject to writ of review. See ORS 34.040.1 The older cases have been in conflict as to whether vacation of a road is legislative or quasi-judicial. Compare Holmes v. Graham, 159 Or 466, 80 P2d 870 (1938) with Portland Baseball Club v. Portland, 142 Or 13, 18 P2d 811 (1933). However, since vacation of a road affects land use, it is doubtful that cases decided prior to Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973) are entitled to any weight. The postFasano decisions indicate that where a municipal land use decision concerns a large area of land, and there is multiple ownership, the decision is legislative. See, e.g., Neuberger v. City of Portland, 37 Or App 13, 586 P2d 351 (1978). Here the vacated road was 4.3 miles in length serving 20 to 30 square miles of timberland near Mary’s Peak. The amended petition for writ of review disclosed that the abutting landowners included the United States Forest Service, the Bureau of Land Management, the City of Corvallis, a private timber company and individual landowners. Cf. Joyce [578] v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976). The writ was properly quashed. Affirmed. Footnotes [1] ORS 34.040 provides: "The writ shall be allowed in all cases where the inferior court, officer, or tribunal other than an agency as defined in subsection (1) of ORS 183.310 in the exercise of judicial or quasi-judicial functions appears to have: "(1) Exceeded its or his jurisdiction; "(2) Failed to follow the procedure applicable to the matter before it or him; "(3) Made a finding or order not supported by reliable, probative and substantial evidence; or "(4) Improperly construed the applicable law; to the injury of some substantial right of the plaintiff, and not otherwise. The fact that the right of appeal exists is no bar to the issuance of the writ.”