Conte v. City of Eugene

In determining the sufficiency of an appearance, “a person need not assert a position on the merits of the proposed land use action. A bare, neutral appearance, such as a letter requesting that the local government accept the letter as an appearance and provide notice of the decision, is sufficient. Nonetheless, the person must, at a minimum, submit a document . . . that the local government would reasonably recognize as an appearance by that person.” Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572, 586, aff’d, 207 Or App 8, 139 P3d 990 (2006).

Plaintiff appealed from a judicial review by the Land Use Board of Appeals (LUBA) who denied her motion to intervene in an appeal by the City for an approval of a development application. Plaintiff assigned error to LUBA’s determination that Plaintiff did not “appear” before the city during application proceedings so she was not entitled to intervene. On appeal, Plaintiff argued that she appeared in writing through a “Neighbor Report” that was submitted in opposition of the application because the report identified her as one of the neighbors who “endorsed the recommendations in the report.” In response, Defendant argued that in order to have “appeared,” the person must have made communication with the local government either orally or in writing and in a manner that “reasonably conveys that person’s desire to be treated as a party to the local government.” In determining the sufficiency of an appearance, “a person need not assert a position on the merits of the proposed land use action. A bare, neutral appearance, such as a letter requesting that the local government accept the letter as an appearance and provide notice of the decision, is sufficient. Nonetheless, the person must, at a minimum, submit a document . . . that the local government would reasonably recognize as an appearance by that person.” Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572, 586, aff’d, 207 Or App 8, 139 P3d 990 (2006). The Oregon Court of Appeals held that Defendant’s interpretation of “appeared” was correct pursuant to legislative history and because the “Neighbor Report” did not reasonably convey Plaintiff’s desire, she did not meet the “appeared” requirement. Affirmed.