Phillips v. City of Happy Valley

Notwithstanding the Oregon legislature’s intent for “ORS 197.830(3) to expand the time to file a notice of intent to appeal to LUBA . . . when a hearing is not held in some circumstances or when a party is precluded from participating in a quasi-judicial land use hearing because the notice of the hearing is defective under state law,” ORS 197.830(3)(b) does not operate to expand the time for filing an appeal where a hearing is held.

On June 9, 2015, the Happy Valley City Planning Commission issued a final land use decision after holding a hearing on an application for a variance to the city’s minimum floor area ratio (FAR) requirement. The Notice of the Decision was mailed on June 11, 2015. James Phillips, petitioner, filed his notice of intent to appeal on August 25, 2015, 77 days after the challenged decision became final. The city moved to dismiss the appeal, arguing that petitioner’s notice of intent to appeal was not timely filed under ORS 197.830(9), and that additionally Phillips had failed to exhaust his local remedies.
In his reply to the city’s motion to dismiss, Phillips argued that actual notice of the decision, within the meaning of ORS 197.830(3)(a), was required to be given to him, because under Happy Valley Municipal Code (HVMC) 16.61.040, notice of all type III quasi-judicial decisions are required to be mailed to “[a]ny person who submits a written request to receive notice[.]” Phillips submitted a written request for notification of type III quasi-judicial land use decisions for certain properties, which included the subject property, to a city planner on October 13, 2014. LUBA clarified that if a hearing is held, then notice is required and ORS 197.830(3)(b) simply does not apply and ORS 197.830(3)(b) can only apply where the local government makes a decision “without providing a hearing” at all. LUBA determined that because the city had held a hearing, Phillips had failed to demonstrate that ORS 197.830(3)(b) allowed for late filing of his appeal. DISMISSED.