Oregon Advisory Opinions March 12, 1968: OAG 68-37 (March 12, 1968)

Oregon Attorney General Opinions

1968.

OAG 68-37.

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533

Where the governing body of a county determines to refer a zoning ordinance only to the voters of that part of a county which is "affected" instead of the entire county, under ORS 215.110 (4), it may be voted upon only by voters in the area to which the zoning ordinance will apply.

You advise as follows:

"On December 14, 1967 the Clackamas County Board of Commissioners permanently zoned certain areas of Clackamas County known as the Sandy, Clackamas, Clairmont and Molalla River Corridors. On January 15, 1968 an attorney, William C. Grant, requested that the Clackamas County Commissioners refer zoning in those areas to the legal voters in the four corridor areas for their approval or rejection. There are certain cities and water districts which make use of the waters of these rivers but are geographically located outside of the area zoned. * * *"

You refer us to ORS 215.110 (4) which provides as follows:

"The governing body may refer to the legal voters of the county for their approval or rejection an ordinance or amendments thereto for which subsection (3) of this section provides. If only a part of the county is affected, the ordinance or amendment may be referred to that part only."

You then ask:

" 'Are these cities and water districts depending on these rivers for their domestic water supply considered to be "affected" and if so, would legal voters residing therein be entitled to vote on this issue even though they lie outside of the boundaries of the zoned territories.' "

In our opinion No. 6422, dated January 8, 1968, we indicated that the second sentence of ORS 215.110 (4) could be considered to be ambiguous because of the use of the word "affected."

"* * * Funk and Wagnalls dictionary defines 'affect' as follows: 'to have an effect upon; act upon; lay hold of; impress; influence; change; as, worry affects the mind.' " Gilman v. Burlingham, (1950) 188 Or. 418, 426-427, 216 P. (2d) 252.

It can thus be seen that the term "affected" is broad enough to render the second sentence of ORS 215.110 (4) susceptible to the interpretation that a county zoning ordinance, when referred to "that part only" of a county which is "affected," may be voted upon by voters not actually residing within the area being zoned. This is, of course, because the restrictions which a zoning ordinance may place upon certain property can have a substantial effect upon the character, utility and potential of neighboring property, and, indeed, frequently upon property not even in the immediate vicinity.

The legislature, however, has provided no standards or procedure whereby the governing body of a county is to determine what "part" of a county is "affected" by a zoning ordinance, beyond the area actually being zoned in the ordinance. Generally, when the legislature empowers the governing body of a county to determine boundaries within which an election is to be held, such standards and procedures are set forth in detail. See, for example, former ORS 215.250 and 215.261, relating to county zoning districts, and other statutes under which a county governing body establishes boundaries for elections for public service districts.

To interpret the second sentence of ORS 215.110 (4) as requiring or authorizing the governing body of a county to refer a zoning measure to voters of an area extending beyond the territory being zoned, would be to conclude that the legislature by the mere use of the word "affected" while not providing any standards or procedure for determining what area is "affected" in the broader sense, was intending to leave it up to the governing body of a county to establish its own criteria for making such a determination without further benefit of statute. Such a result would be contrary

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to the ordinary method of conferring power upon counties by statute:

"Counties are created for purposes of government and authorized to exercise to a limited extent a portion of the power of the state government. They have always been held to act strictly within the powers granted by the legislative acts establishing and controlling them. The statute is to them a fundamental law and their power is only coextensive with the power thereby expressly granted, or necessarily or reasonably implied from their granted powers * * *." Fales v. Multnomah County et al., (1926) 119 Or. 127, 133, 248 P. 151.

One definition of "affected," as quoted above by the Oregon court, was "act upon," and in this sense the word "affected" can be interpreted to refer only to the area of the county included within the zoning ordinance being referred to the voters. A recording of the proceedings of the Senate Committee on Local Government of the regular session of the Fifty-second Legislative Assembly on February 26, 1963, which committee was at that time considering the bill which became chapter 619, Oregon Laws 1963, and amended ORS 215.110 (4) to read in its present form, shows clearly that it was intended by referring to the part of the . county "affected" to mean only the area of the county actually being zoned. The discussion nowhere indicates that anyone present conceived that the county governing body could draw special boundary lines to determine who should be entitled to vote at such an election. On the contrary, it is clear that it was assumed by all that the boundary lines would already exist---that the zoning ordinance would either be referred to the voters of the entire county, or to the voters of the area described in the ordinance.

From the above we conclude that the word "affected" in the second sentence of ORS 215.110 (4) means "acted upon" in the direct sense included in the definition quoted above from the Oregon court, and that where the governing body of a county determines to refer a zoning ordinance to the part of a county which is "affected" it may be voted upon only by voters in the area described in the zoning ordinance itself.