Phillips v. City of Corvallis

ORS 197.830(3) applies only when the local government holds a hearing and fails to provide the petitioner notice of the hearing, when the petitioner is entitled to notice under state law.

Intervenor filed an application with the Corvallis Planning Commission for approval of a 37-lot subdivision. The city mailed written notice of a hearing to be held on March 4, 2015 to petitioner. The hearing was continued to March 18, 2015 and the planning commission adopted Order 2015-014. Some time after March 18, 2015, the city mailed a “Notice of Potential Land Use Public Hearing,” which gave notice of a hearing that was tentatively scheduled in the event of an appeal. No party appealed the decision, so it became final on March 31, 2015. Along with the “Notice of Potential Land Use Public Hearing,” the city also mailed a “Notice of Disposition.” This notice included Condition 10, which required intervenor to construct a sidewalk. Petitioner owns two lots that were affected by the sidewalk construction. Following several disputes between petitioner and intervenor, petitioner received a copy of the challenged decision on December 6, 2016, and filed this appeal on December 27, 2016.

Respondent and intervenor move to dismiss this appeal, arguing that the appeal was not timely filed in accordance with ORS 197.830(9). Petitioner does not dispute this claim, but instead contends the notice she received did not reasonably describe the local government’s final actions in this matter, as required by ORS 197.830(3). This means, petitioner argues, that she did not receive actual notice until December 6, 2016. Respondent argues ORS 197.830(3) is unavailable to petitioner, because the city was not required to provide notice under ORS 197.763(1)(a)(A). In other words, although the city mailed petitioner notice of the March 4, 2015 commission hearing, petitioner was not entitled by statute to that notice. LUBA agreed with respondent, because ORS 197.830(3) applies only when the local government holds a hearing and fails to provide the petitioner notice of the hearing, when the petitioner is entitled to notice under state law. Here, state law did not require notice, so petitioner has no right to file a notice of intent to appeal under ORS 197.830(3). DISMISSED