Hood River Valley Residents Comm. v. Hood River County

While ORS 215.416(11)(a)(C) reflects that a county’s land use regulations may provide the manner in which a written appeal of a permit decision made without a hearing shall be filed, it does not allow the county to place additional restrictions on who can appeal such a decision.

Petitioner appeals a county decision dismissing its appeal of a planning director decision approving a conditional use permit without a hearing. A property owner filed an application for a conditional use permit to operate a short-term rental on a 2.54-acre property zoned exclusive farm use. The county planning director approved the application, and petitioner appealed the decision to the planning commission. The planning commission dismissed the appeal on the basis that petitioner failed to attend a conference or submit written comments in opposition to the application prior to the planning director's final decision, as required under Hood River Zoning Ordinance (HRZO) 72.45 for appeals of permit decisions made without a hearing, and therefore lacked standing to appeal the planning director's decision. Petitioner then appealed the planning commission's dismissal to the board of county commissioners, which affirmed. This appeal followed. 

In its single assignment of error, petitioner argues HRZO 72.45’s limit on the right to appeal a permit decision without a hearing to individuals who participate by attending a conference or providing written comments is inconsistent with ORS 214.416(11)(a), which contains no such limits so long as the person filing the appeal is adversely affected or aggrieved, or entitled to notice. In response, the county argues ORS 215.416(11)(a)(C) authorizes it to impose the additional requirements contained in HRZO 72.45 since the statute provides that the county may determine the "manner" in which appeal of such a decision may be filed. LUBA agrees with petitioner, stating that the county's reading of "in the manner" is inconsistent with the plain text and structure of the statute, since ORS 215.416(11)(a)(C) only sets out the requirements for the notice of a decision, not restrictions on who can appeal. The county therefore erred in dismissing petitioner’s appeal and the county’s decision is REMANDED.