Oakleigh-McClure Neighbors v. City of Eugene

344 P.3d 503, 269 Or. App. 176, 2014 Ore. App. LEXIS 1892
CourtCourt of Appeals of Oregon
DecidedFebruary 19, 2015
Docket2014001; A157756
StatusPublished
Cited by3 cases

This text of 344 P.3d 503 (Oakleigh-McClure Neighbors v. City of Eugene) 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
Oakleigh-McClure Neighbors v. City of Eugene, 344 P.3d 503, 269 Or. App. 176, 2014 Ore. App. LEXIS 1892 (Or. Ct. App. 2015).

Opinion

ARMSTRONG, P. J.

Petitioners Paul Conte and Simon Trautman seek judicial review of a final order of the Land Use Board of Appeals (LUBA), affirming, in part, a decision by the City of Eugene (the city) to grant approval to Oakleigh Meadows Co-Housing, LLC (applicant) for a tentative planned unit development. In their first assignment of error on review, petitioners contend that LUBA erred in denying a motion by petitioner Trautman to intervene; they also raise two assignments of error as to the merits of LUBA’s final order.1 Because we agree with petitioners that LUBA erred in denying Trautman’s motion to intervene, we reverse and remand LUBA’s order on that basis. That disposition, in turn, obviates the need for us to address petitioners’ other assignments of error.

We limit our discussion of the facts to those pertinent to our consideration of LUBA’s denial of Trautman’s motion to intervene. Those facts are undisputed. Applicant applied to the city for tentative planned unit development (PUD) approval for a multi-unit residential development on 2.3 acres of land zoned low-density residential. The city’s hearings official held a hearing on the application. Trautman did not appear at the hearing but submitted written testimony in a letter opposing the development. The letter included an address on Oakleigh Lane, which is approximately 275 yards from the proposed development and is owned by Trautman’s mother-in-law.2 On November 12, 2013, the hearings official approved the application, subject [179]*179to conditions. Trautman did not receive notice of the hearings official’s decision, as required under Eugene Code (EC) 9.7335(l)(d) and ORS 227.173(4).3 Others appealed the hearings official’s decision to the Eugene Planning Commission. The commission held a public hearing and, on December 16, 2013, issued a final order affirming approval of the PUD with some modifications. Again, the notice of decision was not sent to Trautman, as required by EC 9.7685(l)(d)4 and ORS 227.173(4), nor did Trautman receive notice of the public hearing.

On January 3, 2014, an association of neighbors and several individuals opposed to the development (neighbors) timely filed a notice of intent to appeal (or NITA) the commission’s final order to LUBA and served copies of the notice pursuant to OAR 661-010-0015(2). OAR 661-010-0015(2) requires that, on or before the date the notice of intent to appeal is required to be filed with the board, it “shall be served on * * * all persons identified in the Notice as required by subsection (3)(f).” Subsection (3)(f), in turn, requires the notice of intent to appeal to identify, among others, “[a]ny other person to whom written notice of the land use decision or limited land use decision was mailed as shown on the governing body’s records.” OAR 661-010-0015(3)(f)(D) (emphasis added). Trautman was not included among those served with neighbors’ notice of intent to appeal.

Subsequently, the city discovered that it had failed to mail the notice of decision to everyone who had participated in the proceedings before the city, and, on February 4, 2014, the city mailed notice of the decision to the remaining people who were entitled to receive it, including Trautman.5 In turn, on February 20, 2014, neighbors provided a certificate of service certifying that they had served a copy [180]*180of their notice of intent to appeal on the additional parties whom the city had identified as having been mailed written notice of the decision (and who therefore were entitled to receive a copy under OAR 661-010-0015(3)(f)(D)), including Trautman. On March 11, 2014 — within 21 days of being served with the notice of intent to appeal, but more than two months after the notice was filed with LUBA — Trautman moved to intervene on the side of neighbors in the appeal before LUBA.

Applicant opposed Trautman’s motion to intervene on the ground that it was untimely under ORS 197.830(7), because it was filed more than 21 days after the notice of intent to appeal had been filed.6 ORS 197.830(7) provides:

“(a) Within 21 days after a notice of intent to appeal has been filed with the board under subsection (1) of this section, any person described in paragraph (b) of this subsection may intervene in and be made a party to the review proceeding by filing a motion to intervene and by paying a filing fee of $100.
“(b) Persons who may intervene in and be made a party to the review proceedings, as set forth in subsection (1) of this section, are:
“(A) The applicant who initiated the action before the local government, special district or state agency; or
“(B) Persons who appeared before the local government, special district or state agency, orally or in writing.
“(c) Failure to comply with the deadline or to pay the filing fee set forth in paragraph (a) of this subsection shall result in denial of a motion to intervene.”7

LUBA initially allowed the motion to intervene, relying on its decision in Mountain West Investment Corp. v. City of Silverton, 38 Or LUBA 932, 934 (2000), in which it had granted a motion to intervene that was filed after the 21-day deadline specified in ORS 197.830(7)(a), where the late filing [181]*181was attributable to the petitioner’s failure to serve a copy of the notice of intent to appeal on the applicant intervenor.

However, after applicant renewed its objection to Trautman’s motion to intervene in its response brief, LUBA reconsidered its decision and, in its final order, denied Trautman’s motion. LUBA found that “Trautman’s late filing of his motion to intervene undoubtedly occurred because the city failed to initially mail notice of the decision to all persons who participated orally or in writing during the proceedings, and thus provided inaccurate and incomplete information to Neighbors about who should be served with a copy of the NITA under OAR 661-010-0015(3)(f)(D).” Nevertheless, LUBA concluded that ORS 197.830(7)(c) required it to deny Trautman’s late-filed motion. As to Mountain West Investment Corp., on which it had earlier relied, LUBA appeared to reason that, “ [t] o the extent Mountain West Investment recognizes an exception to the statutory deadline for intervention,” that exception is limited to a party who is the “applicant of record.”

Petitioners now seek judicial review of LUBA’s final order, first assigning error to LUBA’s denial of the motion to intervene.8 Petitioners challenge LUBA’s construction of ORS 197.830

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Related

McCorquodale v. Oxford House, Inc.
514 P.3d 1189 (Court of Appeals of Oregon, 2022)
Conte v. City of Eugene
425 P.3d 494 (Court of Appeals of Oregon, 2018)
Trautman v. City of Eugene
383 P.3d 420 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 503, 269 Or. App. 176, 2014 Ore. App. LEXIS 1892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oakleigh-mcclure-neighbors-v-city-of-eugene-orctapp-2015.