Aleali v. City of Sherwood

325 P.3d 747, 262 Or. App. 59, 2014 WL 1316610, 2014 Ore. App. LEXIS 427
CourtCourt of Appeals of Oregon
DecidedApril 2, 2014
Docket2013054; A155112
StatusPublished
Cited by1 cases

This text of 325 P.3d 747 (Aleali v. City of Sherwood) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aleali v. City of Sherwood, 325 P.3d 747, 262 Or. App. 59, 2014 WL 1316610, 2014 Ore. App. LEXIS 427 (Or. Ct. App. 2014).

Opinion

SERCOMBE, P. J.

The City of Sherwood (city) made land use decisions following public hearings by its planning commission. More than seven months later, petitioner sought review of those decisions by filing a notice of intent to appeal with the Land Use Board of Appeals (LUBA or board). LUBA dismissed the appeal as untimely under ORS 197.830(9), which requires that the notice be filed with LUBA “not later than 21 days after the date the decision sought to be reviewed becomes final.”

Before LUBA, petitioner contended that the time to appeal the land use decision was tolled under ORS 197.830(3), which allows an extended appeal period when “a local government makes a land use decision without providing a hearing.” Petitioner argued that, although public hearings were held, he was not “provid [ed] a hearing” because he was not notified of the hearings as required by local ordinance and given a meaningful opportunity to participate. LUBA concluded that ORS 197.830(3) did not provide petitioner with an extended time to appeal. It interpreted the phrase “without providing a hearing” in ORS 197.830(3) to mean either (1) that a required hearing on the land use decision was not held at all or (2) that a hearing was held, but was not practically “provid[ed],” because a petitioner was not given a prehearing notice and opportunity to participate in the hearing as required under state law. LUBA dismissed the appeal as untimely under ORS 197.830(9), concluding that petitioner’s time to appeal was not tolled under ORS 197.830(3), given that hearings were held and state law did not require a prehearing notice to be mailed to petitioner. On review, petitioner asserts that LUBA’s construction of ORS 197.830(3) is “unlawful in substance” and seeks reversal of the dismissal order. See ORS 197.850(9)(a) (court shall reverse or remand LUBA’s order if the order is “unlawful in substance”). As explained below, we conclude that LUBA did not err in dismissing petitioner’s appeal as untimely. Accordingly, we affirm.

Except as noted, the facts relevant to the issue on review are undisputed. Respondent Langer Gramor, LLC (respondent) sought site plan and conditional use approvals from the city planning commission for a commercial shopping [62]*62center. The application was considered at three public hearings. The city published and posted notice of the public hearings. In addition, as required by local ordinance, the city mailed prehearing notice to a group of property owners located within 1,000 feet of the proposed shopping center property. See City of Sherwood, Oregon Zoning and Community Development Code § 16.72.020.C.1 (“For [various approvals, including conditional use permits], the City shall send written notice by regular mail to owners of record of all real property within one thousand (1,000) feet from the property subject to the land use action”). Petitioner owned property that was located more than 100 feet, but less than 1,000 feet, from the proposed shopping center property.

The mailed prehearing notice required by the city’s code exceeded that mandated by state law: Under ORS 197.763(2), which sets out the process required for quasi-judicial land use hearings conducted before a local government entity,

“(a) Notice of the hearings governed by this section shall be provided to the applicant and to owners of record of property on the most recent property tax assessment roll where such property is located:
“(A) Within 100 feet of the property which is the subject of the notice where the subject property is wholly or in part within an urban growth boundary].]”1

(Emphasis added.)

The land use decisions issued on November 9, 2012. Petitioner filed his notice of intent to appeal with LUBA on June 18, 2013. The city and respondent moved to dismiss the appeal as untimely under ORS 197.830(9), which provides, in relevant part:

“A notice of intent to appeal a land use decision or limited land use decision shall be filed [with LUBA] not later than 21 days after the date the decision sought to be reviewed becomes final.”

[63]*63In response, petitioner argued that the appeal was timely-under ORS 197.830(3), which provides:

“If a local government makes a land use decision without providing a hearing, except as provided under ORS 215.416(11) or 227.175(10), or the local government makes a land use decision that is different from the proposal described in the notice of hearing to such a degree that the notice of the proposed action did not reasonably describe the local government’s final actions, a person adversely affected by the decision may appeal the decision to the board under this section:
“(a) Within 21 days of actual notice where notice is required; or
“(b) Within 21 days of the date a person knew or should have known of the decision where no notice is required.”

Relying on LUBA’s construction of ORS 197.830(3), set forth in Leonard v. Union County, 24 Or LUBA 362 (1992), petitioner contended that he was not “provid [ed] a hearing” under ORS 197.830(3) because he was not given the prehearing notice required by the city code, and that, accordingly, he should have been allowed to appeal within 21 days of the time that he knew or should have known about the decisions. It was petitioner’s position that a local government fails to provide a hearing within the meaning of ORS 197.830(3) if it either fails to provide a hearing at all or if it fails to give a person the individual notice of hearing he or she was entitled to receive under state or local law. Because petitioner’s property is located more than 100 feet, but less than 1,000 feet, from the proposed shopping center property, it is within the area for which a mailed notification of the hearings was required by local law, but outside the area for which mailed notice was required by state law.

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Related

State ex rel Rosenblum v. Living Essentials, LLC
497 P.3d 730 (Court of Appeals of Oregon, 2021)

Cite This Page — Counsel Stack

Bluebook (online)
325 P.3d 747, 262 Or. App. 59, 2014 WL 1316610, 2014 Ore. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aleali-v-city-of-sherwood-orctapp-2014.