John M. Junkin

Direct Dial: (503) 499-4613
E-mail: john.junkin@bullivant.com

April 11, 2008

Attorney-Client Privileged

Via E-mail and Regular Mail

Re:      Proposed Referendum

Dear Mr. Neal:

You have asked us to advise you with regard to the proposed referendum petition to refer portions of Clatsop County Ordinance 08-5.  The petition seeks to refer only Sections 5 and 6 of the Ordinance.  These sections substantively accomplish the same result: i.e., they amend the Clatsop County Land and Water Development and Use Ordinance (LWDUO) to include “cable, sewer line, water line or other pipeline” as conditional uses within the Open Space, Parks and Recreation Zone (OPR). ¹  It is our opinion, as explained below, that Sections 5 and 6 of Ordinance 08-5 are proper subjects for referendum.

The right of referendum is reserved to the voters by the Oregon Constitution, Article IV, § 1 and § 2.  Those rights were extended to the voters in regard to county matters in Oregon Constitution Article VI, § 10.

“The initiative and referendum powers reserved to the people by the Constitution hereby are further reserved to the legal voters of every county relative to the adoption, amendment, revision or repeal of a county charter and to legislation passed by counties which have adopted such a charter;”

The right of referendum reserves to the people the power, “to approve or reject at an election any Act or part thereof.” (OR Const Art IV §1 (3)(c)) (emphasis added).  As noted in Oregon Constitution Article VI, § 10, above, the referendum is applicable to “legislation.”

There have been numerous Oregon cases discussing the right of referendum.  In Allison v. Washington County, 24 Or App 571, 548 P2d 188 (1976), the Oregon Court of Appeals addressed the application of referendum to an amendment of the Washington County Comprehensive Plan.  In that case, the Court found the amendment to the county’s Comprehensive Plan was subject to referendum.  However, this decision is not dispositive of the question as to whether Sections 5 and 6 of the Ordinance are a proper subject for referendum.

The referendum cannot be used for “administrative” but only for “legislative” decisions.  Tillamook [P.U.D.] v. Coates, 174 Or 476, 149 P2d 558 (1944).  In the context of land use decisions, the terminology is often referred to as “quasi-judicial” and “legislative” decisions.  A “quasi-judicial” decision applies a general rule to a specific interest, such as a zone change and a “legislative” decision affects a larger area consisting of many parcels of property in disparate ownership, see Allison v. Washington County.  The latter are subject to referendum, the former are not.  In reviewing the Ordinance, for the most part, it approves zone changes for specific and discrete properties within the County.  These are quasi-judicial decisions.  However, Sections 5 and 6 amend the LWDUO to include “cable, sewerline, waterline or other pipeline” as a conditional use within the OPR zone.  Such an amendment to the LWDUO affects a larger area consisting of many parcels under disparate ownerships and therefore is legislative.

However, this distinction between quasi-judicial decisions and legislative decisions does not necessarily conclude the analysis of the right of referendum in land use matters.  In the case of Dan Gile and Associates, Inc. v. McIver, 113 Or App 1, 831, P2d 1024 (1992), the Court of Appeals found that additional analysis and not merely classification of a decision as quasi-judicial or legislative was necessary.  The Court’s analysis in Gile requires a review as to whether the decision to be referred is such “to which specific land use provisions and requirements must be applied, the governing body must, and the electorate cannot, follow the procedures or be confined to the substance of those requirements.” Gile, p. 1026.  However, in applying the analysis of Gile, our conclusion remains the same.  In regard to Sections 5 and 6, the governing body was not operating under any specific land use provisions and requirements that can only be applied by the governing body and not the electorate.² 

In summary, it is our opinion that Sections 5 and 6, having broader impact than the zone changes to discrete parcels of property found elsewhere in the Ordinance; and the decision to adopt Sections 5 and 6 not being confined to specific land use provisions and requirements that can only be addressed by the governing body, are proper subject matter for referendum.

If you have any further questions please advise.  We appreciate the opportunity to assist you in this matter.

Very truly yours,

/s/ John M. Junkin

John M. Junkin

JMJ:tk

10503667.1