Dissenting.
In my opinion the holding by the majority in this case is not only contrary to the applicable law, but also creates an untenable situation for those persons who seek approval from a planning commission or board of commissioners to partition their property. This is particularly true in this case in which the application by this petitioner appears to have satisfied all requirements of the Polk County comprehensive plan and zoning ordinances. I must, therefore, respectfully dissent.
I. State law does not require that counties directly apply the state-wide planning goals to applications for approval of minor partitions which satisfy requirements of existing comprehensive plans and zoning ordinances.
*436Petitioner is the owner of 25 acres of land in Polk County. The tract includes a cherry orchard, together with some hay and pastime land. He sought to partition that tract into three smaller parcels. At the time of the application by petitioner for approval of that partition, the Polk County comprehensive plan designated the area as "rural residential,” and the 25-acre tract was zoned "agricultural-residential,” with a 5-acre minimum lot size.
In addition, according to the trial testimony of E. Frank Wyckoff, the county planning director, requests for minor partitions prior to December 1977 were handled under the county’s subdivision ordinance through a relatively simple administrative procedure. Applicants had to secure the approval of the county road master (checked access), the county surveyor (checked lot sizes and survey accuracy), the county sanitarian (checked septic approval) and the county planning director.
On December 28,1977, the Polk County Board of Commissioners changed these rules by the passage of Resolution No. 325. Thereafter, applicants were further required to show that the partition "will conform to the state-wide planning goals adopted by the Oregon Land Conservation and Development Commission.” (LCDC). As a result of Resolution No. 325, not only were the substantive requirements changed, but the procedures for obtaining approval of a partition were also changed. The county planning department began taking "full applications”; adjacent land owners had to be notified, and soil analyses conducted to determine the type of agricultural soil present.
Thus, by resolution, without either the adoption of any ordinance or the amendment of its existing comprehensive plan or zoning ordinance, Polk County changed the substantive and procedural rules for minor partitions.
Petitioner was faced with these new barriers when on February 21, 1978, he filed his request for *437approval of a partition of his property. As stated by the majority, that request was denied by the planning department and the board of commissioners because, in their view, it contravened LCDC’s Goal 3, relating to the preservation of agricultural lands.1
The majority concludes, after a review of the applicable statutes and their legislative history, that by "implication” those statutes require that the statewide planning goals must be applied directly to applications for approval of individual partitions and that Polk County followed that "statutory scheme” in applying the state-wide agricultural lands goal (goal 3) to petitioner’s application for approval of this partition. In my view, however, a review of this "statutory scheme” not only leads to the opposite conclusion but also illustrates the problems encountered by courts which embark upon searches for legislative "implication” or "policy” as the basis for defining legislative intent.
Cities and counties in this state are required to adopt comprehensive plans for land development. ORS 215.050 and 197.175(2). ORS 197.175(1) provides in part:
"Cities and counties shall exercise their planning and zoning responsibilities * * * in accordance with ORS 197.005 to 197.430 and 469.350 and the statewide planning goals approved under ORS 197.005 to 197.430 and 469.350.”
As stated by the majority, the county contends that this statute required it to apply LCDC Goal 3 to individual partition decisions. The majority properly concludes that this statute "does not strike us as conclusive on the question.” The reason why that statute is not "conclusive” is that it is clearly not applicable. The reference in that statute to "planning and zoning responsibilities” is a reference to the adoption of comprehensive plans, ordinances and regulations, not to *438individual decisions regarding minor partitions. This is made clear by other statutes including ORS 197.275(2) which provides that:
"After the commission acknowledges a city or county comprehensive plan and implementing ordinances to be in compliance with the goals pursuant to ORS Chapter 197 and any subsequent amendments to the goals, the goals shall apply to land conservation and development actions, and annexations only through the acknowledged comprehensive plan and implementing ordinances * * (Emphasis added)
Thus, although the legislature did not define either "planning and zoning responsibilities” or "land conservation and development actions,” it is clear that the legislature intended to make a distinction between broad "legislative” functions on one hand and individual "actions,” such as partitions, on the other. This distinction is implicitly recognized by the majority in its conclusion that "land conservation and development actions” go "beyond the adoption of plans and general ordinances so as to reach action on applications of these general policies to specific tracts of land.”
Because, in this case, the comprehensive plan prepared by Polk County had not yet been acknowledged by LCDC, the question presented by this case is whether the county must directly apply the state-wide planning goals to each individual "land conservation and development action” during the interim period preceding such acknowledgment.
As previously stated, ORS 197.275(2) requires that the goals only apply indirectly through the comprehensive plan once that plan is acknowledged. Prior to acknowledgment, two other statutes (ORS 197.252 and 197.300(l)(b)) granted LCDC the authority to require that a particular "action” conform with the goals. These statutes do not, however, require that a county directly apply the goals unless LCDC has exercised its authority to require such action, as the following discussion will demonstrate.
*439Counties and cities are required to develop comprehensive plans that conform to the state-wide planning goals "within one year from the date such goals are approved by the commission.” ORS 197.250. If, however, as in this case, a county fails to complete its plan within this one-year period it may request an extension of time to to so. ORS 197.251.
If LCDC grants the extension, that extension will include a "compliance schedule” which may include a requirement that the county directly apply the state-wide planning goals to individual "actions.” ORS 197.252 states in part:
"(1) Even if a city or county has not agreed to a condition in a compliance schedule under ORS 197.251, the commission may condition the compliance schedule for the city or county to direct the city or county to apply specified goal requirements in approving or denying future land conservation and development actions if the commission finds that past approvals or denials would have constituted violations of the state-wide planning goals and:
"(a) The commission finds that the past approvals or denials represent a pattern or practice of decisions which make continued utilization of the existing comprehensive plan, ordinances and regulations ineffective in achieving the state-wide planning goals through performance of the compliance schedule; or
"(b) The commission finds that a past approval or denial was of more than local impact and substantially impairs the ability of the city or county to achieve the state-wide planning goals through the performance of the compliance schedule. (Emphasis added)
* * * ‡»
The majority makes much of the ambiguities in this statute pertaining to the "conditions” under which LCDC may require that a county "apply specified goal requirements in approving or denying future land conservation and development actions.” In my opinion, however, any such ambiguity is not rele*440vant to this case. Instead, the relevant question under this statute (ORS 197.252) is whether LCDC has included in Polk County’s "compliance schedule” any requirement that the county directly apply all or some of the state-wide planning goals to future individual "land conservation and development actions.” The answer, of course, is that LCDC has not included any such requirement for Polk County.
The other statute that authorized LCDC to require that a specific "land conservation and development action” comply directly with the state-wide planning goals was ORS 197.300(l)(b) (repealed, 1979 Or Laws c 772 § 26). That statute provided:
"(1) In the manner provided in ORS 197.305 to 197.315, the commission shall review upon:
* * * *
"(b) Petition by a city, county, special district governing body, or state agency, a land conservation and development action taken by a state agency, city, county or special district that the governing body or state agency considers to be in conflict with state-wide planning goals approved under ORS 197.240. (Emphasis added)
‡ ^ ‡ :fiJ>
Once again, this statute at most requires LCDC to require direct application of the state-wide planning goals to individual "actions” upon the filing of such a petition.
It is from these statutes that a majority concludes that the court should, by "implication,” require counties to directly apply the LCDC goals to all individual "land conservation and development actions,” including minor partitions.
With all due respect, it is my opinion that these statutes imply no such conclusion. On the contrary, in my opinion, these statutes "imply” quite the opposite conclusion: that a county is to continue to apply its existing ordinances and regulations until such time as its comprehensive plan is acknowledged *441unless LCDC has issued a specific order requiring that the county directly apply certain state-wide planning goals to individual "actions.”
Not only is such a result the clear intent of the statutes involved, in my opinion, it is a sensible result as well. State-wide planning objectives necessarily require that counties and cities adhere to common goals and that local decisions are not to be made contrary to such goals. On the other hand, both the public in general and owners of land, in particular, are entitled to know with reasonable certainty whether a county will permit or deny particular land uses.
The essence of land use planning is planning, not ad hoc decision making. The LCDC goals are in the nature of guidelines for legislation (comprehensive plans and ordinances) and not rules to be directly applied on an ad hoc (a case by case) basis. Where, however, a county or city chooses to ignore some or all of the goals, the law (ORS 197.252 and 197.300(l)(b)) provided a remedy whereby LCDC could step in and require compliance. In the absence of such action counties and cities were required to regulate land use by the application of their own local ordinances and, once acknowledged, through their own comprehensive plan.2
II. The ’’resolution”passed by the Board of Commissioners did not properly authorize the county to apply LCDC goals directly to individual requests for partitions.
In the absence of a state law requiring direct application of LCDC goals, the county’s "action” must rest upon the authority of local county law.
*442ORS 92.046 provides that counties "may” regulate minor partitions and, further, that counties "may” also "establish standards and procedures governing the approval of tentative plans for such partitions.” (subsection (1)). Such "tentative plans” must also comply with the applicable zoning ordinances (subsection (5)). In addition, any ordinances or regulations passed relating to minor partitions of land must comply with the county’s comprehensive plan (subsection (6)).3
*443In addition, ORS 92.048 provides that such ordinances and regulations may only be enacted or amended after a public hearing before the planning commission and a subsequent hearing before the governing body of the county. The statute further provides procedures for published notice of such hearings.* **4
*444Polk County has adopted a subdivision ordinance that also governed minor partitions (Ordinance No. 118). That ordinance was presumably enacted under the procedures prescribed in ORS 92.048, quoted above.
As recognized by the majority, the Board of Commissioners passed a "resolution” declaring its intention to apply the state-wide planning goals to future individual requests for partitions. The record in this case does not disclose whether that "resolution” was passed pursuant to the requirements of ORS 92.048(5) relating to amendments of partition ordinances or regulations. We must assume, however, that this "resolution” was not so enacted, as contended by the petitioner in the circuit court, because the county failed to deny that contention before this or any court or to contend that it was empowered by local law, as opposed to state law, to directly apply the state-wide planning goals to petitioner’s request for a partition.
For the reasons previously stated, it is my opinion that the legislature did not intend that the state-wide planning goals be directly applied to individual "land conservation and development actions,” particularly minor partitions, except in cases in which LCDC had issued orders as provided by ORS 197.252 and 197.300(l)(b). In addition, it is my opinion that it *445was clearly improper for a county to suddenly decide by resolution, without the notice or public hearing as required by ORS 92.048, that individual requests for partitions will be subject to a new set of rules.
LENT, J., and PETERSON, J., concur in this dissenting opinion.See majority opinion, note 1.
In 1979 the legislature repealed ORS 197.300 and created the Land Use Board of Appeals to review "land use decisions” defined to include the "application of’ the state-wide planning goals, comprehensive plan or zoning, subdivision or other ordinance that implements a comprehensive plan. 1979 Or Laws c 772 §§ 1 - 6a and 26. As with ORS 197.300, review of individual "actions” or "applications of’ a comprehensive plan or ordinance is limited to cases where a petition has been filed with the Board. (§ 2a(l)).
OES 92.046 provides:
"(1) The governing body of a county or a city may, as provided in ORS 92.048, when reasonably necessary to accomplish the orderly development of the land within the jurisdiction of such county or city under ORS 92.042 and to promote the public health, safety and general welfare of the county or city, adopt regulations or ordinances requiring approval, by the county or city of proposed partitions not otherwise subject to approval under a regulation or ordinance adopted pursuant to ORS 92.044. Such regulations or ordinances may be applicable throughout the area over which the county or city has jurisdiction under ORS 92.042, or over any portion thereof. Such ordinances or regulations may specify the classifications of such partitions which require approval under this section and may establish standards and procedures governing the approval of tentative plans for such partitions. The standards may include all, or less than all, of the same requirements as are provided or authorized for subdivisions under ORS 92.010 to 92.160 and may provide for different standards and procedures for different classifications of such partitions so long as the standards are no more stringent than are imposed by the city or county in connection with subdivisions.
"(2) Such ordinances or regulations may establish the form and contents of the tentative plans of minor partitions submitted for approval and may establish adequate measures for the central filing, including but not limited to recording with the city recorder or the county recording officer, and for the maintenance of tentative plans for minor partitions following approval.
"(3) The governing body of a city or county may provide for the delegation of any of its lawful functions with respect to minor partitions to the planning commission of the city or county or to an official of the city or county appointed by the governing body for such purpose. If an ordinance or regulation adopted under this section includes the delegation to a planning commission or appointed official of the power to take final action approving or disapproving a tentative plan for a minor partition, such ordinance or regulation shall also provide for appeal to the governing body from such approval or disapproval and require initiation of any such appeal within 10 days after the date of the approval or disapproval from which the appeal is taken.
*443"(4) The governing body may, by ordinance or regulation, prescribe fees sufficient to defray the costs incurred in the review and investigation of and action upon applications for approval of proposed minor partitions.
"(5) No tentative plan of a proposed minor partition may be approved unless the tentative plan complies with the applicable zoning ordinances and regulations and the ordinances or regulations adopted under this section that are then in effect for the city or county within which the land described in the tentative plan is situated.
"(6) Any ordinance or regulation adopted under this section shall comply with the comprehensive plan for the city or county adopting the ordinance or regulation.”
ORS 92.048 provides:
"The procedure for adoption of any ordinance or regulation under ORS 92.044 and 92.046 is as follows:
"(1) The planning commission of the county or the city shall hold a public hearing on the proposed ordinance or regulation after publishing notice of the hearing once a week for two successive weeks prior to the hearing in a newspaper of general circulation published in the area in which land to be subject to such ordinance or regulation is situated or, if there is no such newspaper, a newspaper of general circulation published in the county. The notice shall contain the time, place and purpose of the hearing and a description of the land to be subject to the ordinance or regulation.
"(2) Prior to the expiration of 60 days after the date of such hearing, the planning commission may transmit its recommendation regarding the proposed ordinance or regulation to the governing body of the county or city, as the case may be. If the planning commission recommendation has not been received by the governing body of the county or the city prior to the expiration of such 60-day period, the governing body may consider the ordinance or regulation without recommendation of the planning commission thereon.
"(3) Prior to the adoption of such ordinance or regulation, the governing body of the county or the city shall hold a hearing thereon after giving notice of the hearing in the same manner provided in subsection (1) of this section.
*444"(4) A copy of any regulation or ordinance adopted by the governing body of a county or a city under this section, together with a map of the area subject to the regulation or ordinance and a brief statement of the different classifications, if any, of land partitioning under the ordinance or regulation, shall be filed with the recording officer of the county in which the land subject to the ordinance or regulation is situated. Such ordinance or regulation shall not be effective until so filed. If the ordinance or regulation is applicable throughout all of the area over which the county or city has jurisdiction under ORS 92.042, only an outline map of such area shall be filed with the recording officer of the county.
"(5) The ordinance or regulation may be amended from time to time by following the procedure prescribed in this section.”