dissenting.
The majority decision reflects the ever present temptation for courts to interject themselves into the operations of the more democratic institutions in our system of government, presumably because of a perceived superior judicial wisdom. I doubt we have that wisdom and, in any event, the constitution prohibits its exercise. Our intervention here is also an example of how courts can be used, deliberately or inadvertently, to thwart the democratic process. Appellant has, as the majority states, "fired a whiff of grape shot in a 720 degree direction,” and a stray shot found the target. We have remanded this case to the Portland City Council, an elected legislative body, to conduct a meaningless exercise in semantics. In spite of the *27majority’s logic, common sense dictates that there is no other comparable available land. Common sense further dictates the council will pro forma reaffirm its previous decision with findings, discussing other available properties. We can reasonably anticipate another whiff of grape shot aimed at that decision. After that litigation, the parties will prepare, negotiate and deliberate over the planned unit development. If approved by the city council, we can expect still another whiff. The majority perceives the underlying issue to be whether there is other available land. The city perceives the issue to be a political question of whether this large neighborhood is to be highly exclusive (20,000 square feet per single family residence) or is to have moderate density with moderate cost housing (10,000 square feet per single family residence). The issue is political and we should be reluctant to enter the arena.
For the reasons stated infra, I believe the majority has applied the wrong legal principles. I would affirm the dismissal of the writ of review because the City’s decision was legislative in nature. I would also affirm the trial court’s decision on the declaratory judgment action because the assignments of error were not well taken.
The Writ of Review
The zone change proceeding concerned two parcels of property consisting of 899 acres1 which are owned by three persons subject to a contract to purchase by a joint venture consisting of seven individual partners and two corporations. The applicants seek eventual approval of a planned unit development for the construction of 1,300 single-family residences. There are 90 plaintiffs who are landowners either in the City, *28the unincorporated area of Multnomah County, or Washington County whose property either adjoins or is near the subject parcels. Initially, Multnomah and Washington Counties, together with the City of Beaverton, were joined as party defendants, and according to plaintiff’s brief, they took a position before the City Council in opposition to the zone change. Plaintiffs emphasize in their brief that all parties have taken the position throughout the proceedings, both before the City and upon judicial review, that the City’s decision in this matter is a land use policy decision of major magnitude.
In Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973), the court rejected the view that all zoning decisions are per se legislative, held that a zone change for a 32-acre parcel was quasi-judicial, and established certain procedural and substantive rules for the conduct of quasi-judicial land use decisions. Following Fasano, there have been a number of decisions which have addressed the issue of whether a land use decision is legislative or quasi-judicial. See Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 569 P2d 1063 (1977); Joyce v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976); Rockway v. Stefani, 23 Or App 639, 543 P2d 1089 (1975), rev den (1976); Parelius v. Lake Oswego, 22 Or App 429, 539 P2d 1123 (1975); Marggi v. Ruecker, 20 Or App 669, 533 P2d 1372, rev den (1975); Culver v. Dagg, 20 Or App 647, 532 P2d 1127, rev den (1975); Millersburg Dev. Corp. v. Mullen, 14 Or App 614, 514 P2d 367 (1973), rev den (1974). There has been some suggestion that the test may be largely mechanical as the majority suggests, focusing on the size of the land area and the number of parcels and landowners that are the subject of the zoning. See Marggi, Parelius, and Joyce, all supra.2 Heretofore, the largest land area *29that has ever been held to be the subject of a quasi-judicial decision was 400 acres. See Rockway v. Stefani, supra. The land area here is twice that size. In contrast, the subject land consists of only two parcels owned by three individuals. Neither of these factors, however, is determinative.
In Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or 3, 569 P2d 1063 (1977), the Supreme Court rejected a purely mechanical land-size/number-of-owners test. The court stated in a footnote:
"The property in question is a single compact tract of land under the ownership or control of a single developer. Our references in this opinion to 'single tract’ or 'single parcel’ amendments are convenient ways of describing the type and scale of land-use decisions which we have treated as quasi-judicial. * * * [citing cases discussed above] We do not intend, by the use of the terms 'single tract’ and 'single parcel’ to adopt a test for determining when a given land-use decision is quasi-judicial rather than legislative. A number of factors such as the size of the area affected in relation to the area in the planning unit, the number of landowners affected, and the kinds of standards governing the decision-makers may be relevant. The decision with which we are now concerned is clearly quasi-judicial, and we find it unnecessary to formulate, in the present case, a test for making that determination.” (emphasis supplied) 280 Or at 11 n.5.
The court thus rejected the concept of "single tract” or "single parcel” as being determinative, and instead directed a pragmatic analysis weighing several factors. Size alone is not determinative, but rather the inquiry must focus on "size of the area affected in relation to the area in the planning unit.” The substantive policy significance of a conditional use permit *30for 400 acres of rural property in Clackamas County such as at issue in Rockway v. Stefani, supra, or 1,000 acres in Malheur County, is far different from a zone change for 900 acres of undeveloped urban property within the Portland city limits. In the former cases only a few persons may be sufficiently affected to have an interest in the outcome, and thus the decision-making process has the earmarks of the "contested case” or "quasi-judicial” type proceeding. In contrast, a decision of the magnitude at issue here inevitably attracts widespread public attention and necessarily becomes political and legislative in nature.
In Sunny side the court also mentioned the "number of land-owners affected.” Contrary to the majority opinion, it is clear from the context of the statement that the court was referring not only to those landowners whose property is the subject of the zoning ordinance, but also affected adjoining landowners. Here there were at least 90 affected landowners who appeared in public opposition to the proposed zone change.
Fasano and Sunnyside do not depart from the proposition that land use policies embodied in comprehensive plans and general zoning ordinances are decisions to be made in the legislative arena, subject only to the checks and balances of the democratic political processes and minimal judicial scrutiny. The premise of Fasano is that many municipal land use decisions granting special exceptions, even though theoretically amendments to the comprehensive plan or general zoning ordinances nevertheless are neither basic policy decisions nor legislative in character, but rather are administrative and quasi-judicial. 264 Or at 580. The court’s apparent concern and the rationale for the more stringent judicial review of certain land use decisions is that by piecemeal granting of special exceptions, basic land use policy decisions embodied in legislatively enacted comprehensive plans and general zoning ordinances may be undermined or altered *31without the benefit of the political input that is attendant to the legislative process. A land use decision which affects a small parcel and a small number of people is not likely to arouse sufficient public interest to insure an adequate legislative balancing of competing political interest. In particular, the court was concerned with the "dangers of the almost irresistible pressures that can be asserted by private economic interests on local government” in this type of decision-making environment. 264 Or at 588. (emphasis supplied) The court obviously was not concerned that some political pressures may be asserted because such pressures are not only inevitable in legislative decision-making, they are concomitant to the democratic process. Rather the concern is that in land use decisions where there are only a few interested individuals there is a likelihood that those few can exercise pressures of "almost irresistible” proportions. The countervailing pressures that characterize legislative decisions on basic policy matters are unlikely to exist.
In the instant case conflicting and countervailing pressures obviously did exist. Unlike many zone change proceedings where the private developer is the only party appearing, here we have at least 90 individuals who appeared in opposition. Among those individuals were persons of political prominence such as a former United States senator. Three major political subdivisions expressed a position in this proceeding. The "almost irresistible” pressures which Fasano was concerned with were not present. Moreover, it is apparent that there were political forces other than the mere parties to this litigation who had a stake in the outcome and which the City had to consider. The City Council indicated the principal reason for authorizing the zone change was to meet long-term housing needs, i.e., 1,300 single-family residences. Thus we have a decision which not only affected the parties directly, but would have a profound impact on several thousand other people. The decision to approve *32or disapprove was a "general * * * policy which is applicable to an open class of individuals,” a factor which the Oregon Supreme Court indicated in Fasano may well be controlling in determining that it is legislative in nature. 264 Or at 581, quoting from Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St L J 130, 137 (1972).
The final and probably the most important factor expressly mentioned in Sunnyside is "the kinds of standards governing the decision-makers.” 280 Or at 11 n.5. If a decision is characterized as quasi-judicial, then the standards of Fasano must apply. The burden of proof is upon the proponents of change to prove that there is a public need, and the need is best met by the proposed change as compared to other available alternatives. 264 Or at 584. This burden is only appropriate where there is an inherent danger that the democratic will may be thwarted because of "almost irresistible” pressures. Where the likelihood is that the democratic will will prevail, then Fasano standards are an unwarranted invasion into the legislative arena and violate the separation of powers. Legislative bodies are not expected to prove the public interest or to prove that they have weighed alternatives. They are presumed to know the public interest. Here we have a decision which proponents, opponents, and the City publicly proclaim "is a major matter of policy for the City * * * which is going to make a difference for a long period of time, 50 to 100 years, in a very large neighborhood.”3 The land in question is the largest remaining tract of undeveloped land in the western part of the City. A multitude of citizens and three political subdivisions have participated in the proceedings. An open class of several thousand people is directly affected. Separation of powers dictates that we not impose Fasano *33requirements on the City in a decision of this nature and magnitude.
Declaratory Judgment Suit
A legislative decision is not subject to writ of review, ORS 34.040, but is subject to limited judicial review in a declaratory judgment suit. The early zoning decisions stated that judicial review was limited to the questions of whether the legislative action was "arbitrary or capricious.” See, e.g., Jehovah’s Witnesses v. Mullen, 214 Or 281, 295, 330 P2d 5 (1958). I interpret those cases as meaning that courts review for constitutional error. The reference to "arbitrary or capricious” is merely a restatement of the due process standard that is applied to any legislative act. See, e.g. Roseta v. County of Washington, 254 Or 161, 458 P2d 405 (1969), and cases cited therein, 254 Or at 164 n.2. More recent, but yyce-Fasano cases indicate that a more stringent standard of judicial review is applicable in cases of "spot zoning.” See Roseta v. Washington County, supra; Smith v. County of Washington, 241 Or 380, 406 P2d 545 (1965). "Spot zoning” by definition is now treated as quasi-judicial. See Fasano v. Washington Co. Comm., supra. Roseta and Smith are merely the predecessors of Fasano and are not authority for delineating the scope of review of legislative acts of the nature at issue here. Although not mentioned in the early zoning cases, it is also clear that judicial review of local government and legislative actions encompasses compliance with local government charters and state law. In summary, judicial review of legislative land use decisions is limited to the question of whether the decision complies with the constitution, local government charter, or state statute. Plaintiffs make five contentions, which appear to be directed at these considerations.
(1) Plaintiffs suggest that the change in zoning from R-20 to R-10 constitutes an unconstitutional classification, or is arbitrary in violation of due process. The express finding in the ordinance that there is *34a need for additional medium-priced housing within the City of Portland satisfies the "minimum rationality” test. See Clackamas County v. Ague, supra.
(2) Plaintiffs contend that since the City has not yet adopted a comprehensive plan, it is precluded by ORS 197.2754 from making any zone changes. That statute merely provides that comprehensive plans and zoning, subdivision, and other ordinances adopted prior to October 5,1973, shall remain in effect until revised in accordance with the applicable provisions of Senate Bill 100, Oregon Laws 1973, ch 80. Plaintiffs suggest that until a plan is adopted, there is a moratorium on all zone changes. To the contrary, ORS 197.275 merely requires that any zone changes made during the period prior to the adoption of the comprehensive plan must generally be in compliance with ORS ch 197, and in particular with the state-wide planning goals. See Sunnyside Neighborhood v. Clackamas Co. Comm., supra; In the Matter of the Petition of Iris M. Felter and Paul R. Meyer, LCDC Appeal No. 75-003.
*35(3) Plaintiffs contend that the City failed to comply with former ORS 227.170.5 It is clear from the definitions of "contested case” and "hearing,” as provided in former ORS 227.160,6 that former ORS 227.170 has no application to a legislative action of the nature at issue here.
(4) Plaintiffs argue that the City displayed "favoritism” toward the applicants in violation of former ORS 227.240(2). That statute required that regulations relating to the height and bulk of buildings and the size of yards and other open spaces "be uniform for each class of buildings throughout each [zoning] district.”7 The zone change ordinance at issue here *36merely provides for a conditional zone change from R-20 to R-10. We can only discern from the record that the height and bulk of buildings, etc., is governed uniformly by the applicable city zoning ordinances. See, e.g., Portland, Ore., Code § 33.22.010 etseq{1969). Plaintiffs do not indicate how the alleged favoritism violated former ORS 227.240.
(5) Plaintiffs assert without any specificity that the zone change violates the comprehensive plans of Washington County and the City of Beaverton and "the projections for comprehensive planning” by Multnomah County. The City is solely responsible for land use planning within its boundaries subject to compliance with the state-wide planning goals. ORS 197.175, 197.190, 215.130. Plaintiffs make no contention that the plan violates state-wide planning goals. See in the Matter of the Petition of Iris M. Felter and Paul R. Meyer, supra (holding that the subject zone change conformed to the interim state-wide planning goals, former ORS 215.515). Plaintiffs also contend *37that the trial court erred in failing to consider evidence of planning actions taken by these three jurisdictions and also the Columbia Region Association of Governments (CRAG) subsequent to enactment of the subject zone change. For the reasons stated above, the evidence concerning Multnomah County, Washington County, and the City of Beaverton is irrelevant. As to CRAG’s planning actions, the evidence was irrelevant for the reasons stated in Ruegg v. Clackamas County, 32 Or App 77, 573 P2d 740 (1978).
The demurrer to the declaratory judgment action was properly sustained.8
I respectfully dissent.
Parcel A consists of 601 acres and parcel B consists of 298 acres. The original application sought to have both parcels rezoned. The ordinance only rezoned parcel A. The applicants gave the City an option to purchase parcel B for purposes of a public park. The option was clearly a consideration in the decision to grant the zone change.
The application of Fasano v. Washington Co. Comm., 264 Or 574, 507 P2d 23 (1973), quasi-judicial standards in this case would lead to inconsistent results. This is illustrated by Joyce v. City of Portland, 24 Or App 689, *29546 P2d 1100 (1976), wherein we affirmed the City’s rezoning of approximately 842 acres of land which are immediately adjacent to the land at issue here. We held that the City’s decision was legislative. The only distinction between Joyce and the present case is that the record there indicated there were several dozen individuals who owned property within the 842 acre tract.
The quotation is from the opening statement by proponents’ counsel in the hearing before the City Council which is quoted with favor by both the plaintiffs and the City in their briefs.
ORS 197.275 provides:
"(1) Comprehensive plans and zoning, subdivision, and other ordinances and regulations adopted prior to October 5, 1973, shall remain in effect until revised under ORS 197.005 to 197.430 and 469.350. It is intended that existing planning efforts and activities shall continue and that such efforts be utilized in achieving the purposes of ORS 197.005 to 197.430 and 469.350.
"(2) 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 unless:
"(a) The acknowledged comprehensive plan and implementing ordinances do not control the action or annexation under consideration; or
"(b) Substantial changes in conditions have occurred which render the comprehensive plan and implementing ordinances inapplicable to the action or annexation.
"(3) As used in this section, 'annexation’ means the annexation of unincorporated territory by a city pursuant to ORS 222.111 to 222.750 and the formation of an annexation of territory to any district authorized by ORS 451.010 to 451.600.
ORS 227.160 and 227.170 were amended in 1975 subsequent to the adoption of the subject zone change. Former ORS 227.170 provided:
"The city council of a city, by ordinance or rule, shall adopt a procedure for the conduct of hearings. The procedure shall be applicable to all requests for permits and to the determination of contested cases.”
Former ORS 227.160 provided:
"As used in ORS 227.160 to 227.180 unless the context requires otherwise:
"(1) 'Contested case’ means a proceeding in which the legal rights, duties or privileges or specific parties under general rules or policies provided under ORS 227.230, or any ordinance, rule or regulation adopted pursuant thereto, are required to be determined only after a hearing at which specific parties are entitled to appear and be heard.
"(2) 'Hearing’ means a quasi-judicial hearing, authorized or required by the ordinances and regulations of a city adopted pursuant to ORS 227.230:
"(a) To determine in accordance with such ordinances and regulations if a permit shall be granted or denied; or
"(b) To determine a contested case.
"(3) 'Hearings officer’ means a planning and zoning hearings officer appointed or designated by a city council under ORS 227.165.
"(4) 'Permit’ means authority or approval of a proposed use of land for which approval is a matter of discretion and is required pursuant to ORS 227.230, or any ordinance, rule or regulation adopted pursuant thereto, and the term includes, but is not limited to, conditional use, special exceptions, variance, special design zone and other similar permits.”
Former ORS 227.240 provided:
"(1) For each district provided for by subsection (1) of ORS 227.230, regulations may be imposed designating the class of use that *36shall be excluded or subjected to special regulations and designating the uses for which buildings may not be erected or altered, or designating the class of use which only shall be permitted. These regulations shall be designed to promote the public health, safety and general welfare. The council shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the direction of building development in accord with a well considered plan.
"(2) The regulations provided for by subsection (2) of ORS 227.230 shall be uniform for each class of buildings throughout each district. The regulations in one or more districts may differ from those in other districts. The regulations shall be designed to secure safety from fire and other dangers and to promote the public health and welfare, and to secure provision for adequate light, air and reasonable access. The council shall pay reasonable regard to the character of buildings erected before May 29,1919, in each district, the value of the land, and the use to which it may be put to the end that the regulations may promote public health, safety and welfare.” (emphasis supplied) Former ORS 227.230(2) provided:
"The council may place reasonable regulations and limitations upon the height and bulk of buildings erected after May 29,1919, and regulate and determine the area of yards, courts and other open spaces having due regard of the use and occupancy in such case.”
It is technically questionable whether a demurrer will lie in a declaratory judgment action. I address the issue as whether, based upon the arguments made by plaintiffs on appeal, the suit for declaratory judgment should have been dismissed for failure to state grounds for declaratory relief.