specially concurring.
I agree that this case must be remanded for further proceedings. However, I take a different view of what those further proceedings should include.
This case presents only one significant issue: the extent to which the local zoning officials were required to comply with the procedural requirements of Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973), in granting the conditional use permit here challenged. Those procedural requirements are:
“* * * Parties at the hearing before the county governing body are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the matter — i.e., having had no prehearing or ex parte contacts concerning the question at issue — and to a record made and adequate findings executed * * 264 Or at 588.
The Astoria City Council deviated from these requirements in the following particulars.
1. The plaintiff and other interested parties were not afforded an opportunity to be heard by the city council, not because the council refused to hold a hearing,① but because the council did not give prior *226notice of the hearing. Prior notice that the CYDA conditional use permit would be considered by the council would be the essential first step in furnishing an opportunity to be heard. Such prior notice should have, at least, been given to plaintiff and the others who appealed the planning commission decision to the city council.②
The city council failed to be an impartial tribunal within the meaning of Fasano, i.e., the council did have ex parte contacts concerning the question at issue. The agenda for the council meeting at which the conditional use permit was considered states:
“We have submitted considerable material prepared by the Association [CYDA] at the request of the City Manager. This was done in order to give the Mayor and Council sufficient information as to the intentions of the group.”
I cannot tell who “we” refers to in the above excerpt. I can tell from it that CYDA was allowed access to the city council that was more favorable than the access allowed those who opposed granting the conditional use permit.③
*227The city council did not make a record or execute findings.
The above irregularities necessitate remanding this matter to the city council for further proceedings that comply with the procedural requirements of Fasano unless Fasano is not here applicable. There are three possible arguments for the proposition that Fasano is not applicable: (1) Fasano involved a zone change; this case involves a conditional use permit; (2) Fasano involved county zoning; this case involves city zoning; (3) Fasano should not be applied retroactively.
(1) The possibility that the zone-change-conditional-use-permit distinction makes Fasano inapplicable arises from Archdiocese of Port. v. Co. of Wash., 254 Or 77, 458 P2d 682 (1969). In that case the Supreme Court held that there is a presumption of legislative validity when a local government grants or denies a conditional use permit and, therefore, judicial review is limited to the question of arbitrariness. In so doing, the Supreme Court distinguished variance decisions and zone change decisions as matters not entitled to a presumption of legislative validity. See, 254 Or at 83-85. However, as I read Fasano, the underlying rationale of Archdiocese — that passing on a request for a conditional use permit is a legislative act — has been rejected by the Supreme Court. Instead, Fasano articulates an entirely different analysis — whether the zoning decision affects a large class of individuals, and hence is legislative, or whether it affects a specific individual or individuals, and hence, is judicial. See, 264 Or at 579-81.
In the case at bar, whether CYDA is entitled to a conditional use permit entails the application of a *228general rule (the Astoria zoning ordinance) to specific individuals and interests (CYDA and the property owners in the area of the proposed conditional use). It follows in my mind that the procedural requirements of Fasano, articulated in the context of a zone change, are equally applicable here in the context of a conditional use permit.
(2) Fasano referred to procedures to be followed before “the county governing body.” 264 Or at 588. This case involves city zoning. Does this make the procedural requirements of Fasano inapplicable?
This depends, in my opinion, on whether the procedural rules of Fasano are based on statutes or on the constitution. If based on statutes, there might be different results in cities and counties because of different statutory language. If based on the constitution, there would not be different results; the constitution does not mean one thing in cities and another thing in counties.
Finding no possible statutory basis for the part of Fasano here relevant — opportunity to be heard, impartial tribunal, record and findings — I conclude it is based on due process considerations, albeit not clearly so articulated by the Supreme Court. Just after the enumeration of the required procedures the Supreme Court cited Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St L J 130 (1972). That law review article clearly bases its analysis, apparently adopted by the Supreme Court, on constitutional grounds:
“* * * The recognition that zoning amendments are the product of judicial or quasi-judicial action would mean that additional procedural requirements must be adhered to in the name of due process * * 33 Ohio St L J, supra at 140.
*229Assuming I am correct in reading Fasano as imposing constitutional procedural requirements, it follows that those requirements are equally applicable in cities and counties.④
(3) Although not raised by the parties, I find the question of whether Fasano should be applied retroactively to be troublesome. Here we have a case where the local officials completed action on a conditional use permit in November of 1972. As of that date, I thinlc everything the local officials did was probably lawful under Archdiocese. Then in March of 1973, while this writ of review proceeding was pending in circuit court, Fasano was decided. On the one hand, this looks, like a situation where a new rule is ordinarily applied to cases pending in the courts when the new rule is announced. See, State v. Fair, 263 Or 383, 502 P2d 1150 (1972). On the other hand, should we set aside a zoning decision made a year-and-a-half ago on the grounds that the rules of the game have changed since then? This is the closest of the three possible grounds for holding Fasano to be inapplicable. However, I am inclined to hold Fasano is retroactive because its procedural standards are designed to preserve the integrity of the decision-making process in zoning cases. See, State v. Fair, supra.
For the foregoing reasons I would hold: (1) *230Fasano is applicable; (2) the city council violated Fasano; and therefore (3) this case is remanded to the city council for further proceedings that comply with Fasano.
The majority opinion also remands this case, although the proceedings the majority requires following remand are not completely clear to me. I fear that local zoning officials will share my uncertainty about the basis of the majority opinion, and the confusion created by Fasano will be substantially compounded.
The majority opinion first requires reasonable advance notice of the city council hearing on the CYD A conditional use permit. It next provides that the city council need not hold a hearing on this matter provided that an “adequate record” is made of the planning commission proceedings. I am mystified by the majority’s requirement that notice be given of a hearing that need not necessarily be held. Moreover, in this case there is no record of the planning commission proceedings. Does the majority contemplate that this matter will go back to the planning commission for a hearing to be “adequately recorded” or back to the city council for a de novo evidentiary hearing?
The majority’s treatment of this case suggests that their ultimate concern is with avoiding the necessity of “two full-scale, de novo-type hearings,” i.e., one before the planning commission and another before the city council. I note in passing that the facts of the Fasano case and many others indicate that it is fairly common for local governments to hold two evidentiary hearings — one before the planning commission and another before the local governing body.⑤ I also note that *231the city council in this case displayed no reluctance to holding a second public hearing. See, n 1, supra.
Nevertheless, I am likewise concerned about the possible inefficiency and expense that always having to hold two separate hearings could entail. However, unlike the majority, I believe this is required by Fasano under the existing Astoria zoning ordinance. I also believe that any zoning ordinance can be structured to limit interested parties to only one evidentiary hearing.
It all turns on the scope of review when there is an appeal from a lower tribunal to a higher one. The possibilities are: (1) fully de novo, meaning a new evidentiary hearing — this is what now happens, for example, when a minor criminal case is appealed from district court to circuit court; (2) de novo on the record, for example, as in workmen’s compensation cases; and (3) review of the record limited to ascertaining whether findings of fact are supported by substantial evidence, as happens in our review of contested cases before state administrative agencies.
A local governing body could, by ordinance, delegate the responsibility to conduct evidentiary hearings on zoning matters to the planning commission or a hearing officer. A complete record, i.e., verbatim transcript, etc., would be made. Thereafter, any further review ivithin the local government structure could be either de novo on the record or perhaps reviewing the record for substantial evidence. In short, as long as there is one evidentiary hearing that complies with Fasano, and a record made of that hearing, *232local governments will not be required to hold further evidentiary hearings, although they are free to choose to do so.
It is clear to me that the Astoria zoning ordinance does not work this way for the simple reason that it does not require that a record be made of hearings before the planning commission. In the absence of a record to review, the only possible thing for the city council to do, consistent with Fasano, is to hold another evidentiary hearing. If anomaly this be, it can be easily remedied by Astoria and all other local governments by changing the procedures under their zoning ordinances.
The minutes of the city council meeting of November 6, 1972, state that when the council began considering the CYDA conditional use permit: “Mayor Steinbock asked if there was anyone present who would like to speak for or against the appeal.”
I fail to appreciate the significance the majority attaches to the fact that the Astoria zoning ordinance does not require advance notice of city council consideration of a zoning appeal. This case presents questions involving compliance with the requirements of Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973), not involving compliance with the zoning ordinance.
It may be that Fasano was not intended to absolutely forbid all ex parte prehearing contacts, but rather, to assure that any material brought ex parte to the attention of decision-makers be again fully presented at an evidentiary hearing where it could be challenged or answered by interested parties. However, it is not possible to consider that issue here, because we have no record from which we can ascertain whether or not the CYDA material submitted ex parte was subsequently presented at the hearing in a form which gave other interested parties the right to respond to it.
There are actually many holdings in Fasano v. Washington Co. Comm., supra. In Baker v. City of Milwaukie, 17 Or App 89, 520 P2d 479 (1974), we held that one of the holdings in Fasano — that zoning decisions had to be in accord with comprehensive plans — was not applicable to cities because it was based on statutes and different relevant statutes then governed cities and counties. Baker is not inconsistent with my view that another holding in Fasano — the procedural requirements — is applicable to both cities and counties because it is constitutional in nature.
This court’s opinion in Fasano v. Co. Comm. of Wash. Co., 7 Or App 176, 489 P2d 693 (1971), states that “a public hearing *231was held by the [planning] commission” and on appeal the county commissioners also “hear[d] testimony and considered] the evidence presented.” 7 Or App at 177-78.