Cossins v. Josephine County

Under ORS 215.503, counties must provide property owners with advance, individual, written notice by mail of the first hearing on an ordinance that proposes to rezone their property. Such notice must include specific information and be sent within a specified time frame. Failure to provide sufficient notice may prejudice property owners’ substantial rights even if they participated in one or more of the hearings held below.

Petitioners appeal a county ordinance amending the county’s Rural Land Development Code (RLDC). The planning commission held two hearings to consider whether to recommend to the board that the county amend its RLDC to limit marijuana uses in the county’s Rural Residential zone, after which it voted to do so. Twelve days before the first planning commission hearing, the county sent a letter to a certain class of applicants for a Land Use Compatibility Statement. The board held three hearings before voting to adopt the Ordinance. Petitioners subsequently appealed.

On the second assignment of error, petitioners argue that the county committed a procedural error that prejudiced their substantial rights in failing to provide them with required notice. Under ORS 215.503, counties must provide certain property owners with advance, individual, written notice by mail of the first hearing on an ordinance that proposes to rezone their property. Such notice must include specific information and be sent within a specified time frame. For the purposes of ORS 215.503, property is rezoned when an ordinance is adopted or amended in a manner that limits or prohibits previously allowed land uses. The county argues that the letter it sent before the first planning commission hearing was sufficient to comply with its notice obligations. Alternatively, the county argues that, since all the petitioners participated in one or more of the hearings held below, its failure to provide them with the required notice did not prejudice their substantial rights. LUBA agrees with petitioners that the letter sent by the county was insufficient to comply with its notice obligations under ORS 215.503 because it did not identify the date of the first hearing, did not refer to any proposed ordinance and was not sent between 20 and 40 days before the first hearing. In addition, LUBA agrees with petitioners that the county’s failure to comply with its notice obligations prejudiced petitioners’ substantial rights, namely an adequate opportunity to prepare and submit their case and a full and fair hearing, since three of the petitioners, who may have learned about the hearings through insufficient notice or other means, only participated in the last hearing by submitting written comments just before the record closed. Because LUBA sustains the second assignment of error, it does not reach the first and third assignments of error. LUBA remands for the county to provide the required notice and conduct at least one hearing pursuant to that notice. REMANDED.