dissenting.
I agree with so much of the majority opinion as states:
"This case appears to be governed by our holding in City of Portland v. Elston, 39 Or App 125, 591 P2d 406 (1979). A decent respect for the principle of stare *322decisis would normally compel us to the same result here * * 40 Or App at 319.
I disagree with the remainder and would therefore affirm the ruling of the trial court.