Leyden v. City of Eugene

Under 197.830(5)(b), the 21-day appeal period for zone verification decisions begins either on the date the petitioner is placed on inquiry notice or, if petitioner makes timely inquiries and discovers the decision, on the date the decision is discovered.

Petitioner appeals a zone verification. The subject property is zoned Public Land (PL). In October 2015, intervenors applied for a zone verification to determine whether its intended uses as an outdoor athletic field and neighborhood center are permitted on the property. In November 2015, the city explained that the uses are outright permitted uses in the PL zone. Petitioner did not receive written notice of the 2015 decision. In October 2017, intervenor applied for site, adjustment, and traffic impact analysis review, which the city approved with conditions in 2018. The city provided petitioner with at least four notices of the 2018 decision. Several months later, petitioner received actual notice of the 2015 decision when a neighboring property owner provided her a copy of it. Four days later, petitioner filed a notice of intent to appeal the 2015 decision, which respondents move to dismiss as untimely filed.

Under 197.830(5)(b), persons adversely affected by zone verification decisions may appeal them to LUBA “[w]ithin 21 days of the date [they] knew or should have known of the decision where no notice is required.” Where a petitioner does not have knowledge of a decision but observes activity or otherwise obtains information reasonably suggesting that the decision exists, they are placed on inquiry notice. The 21-day appeal period begins either on the date the petitioner is placed on inquiry notice or, if petitioner makes timely inquiries and discovers the decision, on the date the decision is discovered. Despite that the notices of the 2018 decision did not refer to the 2015 decision, LUBA finds that (1) they contained sufficient information about the development to trigger petitioner’s obligation to inquire with the city regarding any prior related land use decisions and (2) petitioner would have discovered the 2015 decision had she inquired with the city. Because petitioner did not make timely and reasonable inquiry, and because the 21-day appeal period expired before she filed her notice of intent to appeal, the appeal was untimely filed and is DISMISSED.