dissenting.
I cannot agree with the majority holding that Washington County’s comprehensive framework plan is invalid because it was adopted by resolution and order rather than by ordinance.1
First, I can find no such requirement in the constitution and statutes of this state.
The applicable statute is ORS 215.050, which reads:
"The county governing body shall adopt and may from time to time revise a comprehensive plan and zoning, subdivision and other ordinances for the use of some or all of the land in the county. The plan and related ordinances may be adopted and revised part by part.”
As I read the above provision, the legislature is thereby expressly recognizing the distinction between (a) the plan and (b) the implementation of the plan, and providing that the implementation of the plan shall be by the county governing body and must be by ordinance. It follows therefore by a simple application of the rule of inclusio unius est exclusio alterius, that while the implementation of the plan must be by ordinance, there is no legal impediment to the adoption of the plan by resolution. Furthermore, the dichotomy between the comprehensive plan and its implementation described above is repeated in the *497language of ORS 215.055(1) and (2), which provide in part:
"(1) Any comprehensive plan and all zoning subdivision or other ordinances and regulations authorized by ORS 215.010 to 215.233 and 215.402 to 215.422 and adopted prior to the expiration of one year following the date of the approval of state-wide planning goals and guidelines under ORS 197.240 shall be designed to promote the public health, safety and general welfare and shall be based on the following considerations, among others: * * *
"(2) Any plan and all zoning, subdivision or other ordinances and regulations * * * shall be designed to comply with such state-wide planning goals and any subsequent revisions or amendments thereof.” (Emphasis supplied.)
I fail to see how, as the majority argues, the 1973 amendment which required that comprehensive plans be approved by the commissioners rather than the planning commission had the effect of requiring that plans must be approved by ordinance rather than by resolution. There is certainly nothing in the language of the amendment to indicate any such change was intended. To the contrary, the meaning I get from the language of the statute is exactly the opposite.
Second, the cases that have touched upon this point do not support the majority’s conclusion.
Let us first consider Baker v. City of Milwaukie, 271 Or 500, 533 P2d 772 (1975), which involved the comprehensive plan of the city of Milwaukie. Although the issue at bar was not directly raised, I can find nothing in Baker that supports the conclusion that the plan was invalid because it was adopted by resolution rather than by ordinance. To the contrary the court treated the Milwaukie plan as having been duly enacted and proceeded to examine it.
Culver v. Dagg, 20 Or App 647, 532 P2d 1127, Sup Ct review denied (1975), involved a challenge to an ordinance implementing the same Washington County comprehensive plan that is involved here. In Culver *498this court treated the comprehensive plan as having been duly enacted and proceeded to consider the petitioner’s challenge to the ordinance implementing that plan. Here again, the issue at bar was not raised. Nevertheless Culver seems to stand for the tacit recognition by this court of the validity of the very plan the majority now says is void.
In Green v. Hayward, 23 Or App 310, 542 P2d 144 (1975), rev’d on other grounds 275 Or 693, 552 P2d 815 (1976), this court touched directly upon this same point. There we said:
"* * * Our Supreme Court also held in Baker that a comprehensive plan properly enacted as law controls zoning decisions irrespective of whether the mode of enactment is by ordinance or resolution.” 23 Or App at 316.
Was this not an express recognition by this court that comprehensive plans may be adopted by resolution and order? Are we now overruling the above statement in Green'?
In Pohrman v. Klamath County Comm., 25 Or App 613, 550 P2d 1236 (1976), we said that a comprehensive plan does not have the force of law, and upheld the action of the board of county commissioners in refusing to follow a change in the comprehensive plan which had been previously allowed by the planning commission. Why then must the plan be enacted by an ordinance? A comprehensive plan is simply a blueprint for the future. It is the zoning ordinance implementing the plan that is the law, Baker v. City of Milwaukie, supra at 506 et seq, and must be enacted as a law. ORS 215.050.
The true nature of the comprehensive plan is described in 3 Anderson, American Law of Zoning 307, § 17.15 (1968), in the following terms:
"A comprehensive plan is not prepared and adopted primarily with a view to its legal impact upon the right to use land. Such a plan, whether it is adopted by a planning commission or by a municipal legislative body, *499is a guide to community development rather than an instrument of land-use control. * * *”
Third, it seems to me that voiding this exceptionally complex and thoroughly prepared comprehensive plan on the procedural ground that the board did not perform the barren exercise of reading this resolution three times, impermissibly exalts form over substance. The Washington County plan, although passed in the form of a resolution, had far more elaborate procedural and substantive safeguards, more consideration and care in preparation than any ordinary enactment. Further, it seems to me that even if the technical irregularity relied on by the majority is potentially dispositive, in light of the Baker v. Milwaukie, supra, directive that we look at the substance of the enactment rather than the form, the form of the enactment is proper because Ordinance No. 120, which provides for a comprehensive plan and special procedures to assure full consideration of the plan, states that:
"A. The Board shall receive the proposed Comprehensive Plan and action of the Planning Commission and shall schedule and hold its own public hearing in the same maimer provided for by Section 6(A) of this article.
"B. After the close of the public hearing, the Board may, by Resolution and Order, adopt, reject or adopt with modifications consistent with the standards contained in Section 5 of this ordinance, the proposed Comprehensive Plan.” (Emphasis supplied.)
There was no claim that the formal adoption procedures were not followed with reference to Ordinance No. 120 and I can see no logical reason why a home rule county cannot adopt an ordinance which effectively provides that a subsequent specific enactment may be adopted by resolution and order, especially when the subject of the subsequent enactment was as fully aired and considered as this one. The majority’s curt dismissal of the ordinance incorporation argument and vague allusion to the salutary effect of formal adoption procedures simply is not an adequate *500answer to the county’s meritorious arguments on this point.
I summarize my reasons for dissenting on the first point as follows:
(1) Washington County’s home rule authority permits it to transact business by resolution and order;
(2) The county’s Ordinance No. 120 directs the board of commissioners to adopt the comprehensive plan by resolution and order;
(3) The Oregon Constitution places no limits upon the authority of this county to act by resolution and order;
(4) ORS 215.050 contemplates that comprehensive plans can be adopted by resolution;
(5) This court held in Green v. Hayward, supra, that comprehensive plans can be enacted by either ordinance or resolution;
(6) The majority’s decision is in effect a judicial amendment of ORS 215.050 contrary to ORS 174.010.2
As our Supreme Court said in State v. La Follett, 132 Or 257, 264, 284 P 283 (1930), in refusing to insert additional requirements in the contempt statute:
"* * * To read into the statute a requirement not contained in the statute and which is wholly foreign to it is judicial legislation. * * *”
Additionally, I am in disagreement with the majority opinion on another issue, namely, was plaintiff required to exhaust his administrative remedies before filing suit?
I am persuaded by the authorities cited by defendants that the trial judge was correct in ruling that plaintiff was required to pursue the procedure in the *501county zoning ordinance for small tract plan changes before filing suit, and should not have been reversed on this point. Gingell v. County Commissioners, 249 Md 374, 239 A2d 903 (1968). Accord: Hopewell Gardens, Inc. v. Town of East Fishkill, 76 Misc2d 234, 349 NYS2d 481 (1973); Medical Arts, Inc. v. Rohrbaugh, 293 So2d 366 (Fla App 1974); National Brick Co. v. City of Chicago, 92 Ill App2d 192, 235 NE2d 301 (1968).
The brief of defendant county indicates that many, if not most, of the county as well as city comprehensive plans now in effect in this state were adopted by resolution and order.
ORS 174.010 provides:
"In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”