Portland General Electric Company v. City of West Linn

Under ORS 197.803(3)(b), a person adversely affected by a local land use decision may not delay the 21-day appeal period by simply failing to read the decision, recognize that it could be a land use decision, or timely transmit a copy to its attorney. Possession of a copy of the decision is sufficient to establish that the person “knew” of the decision for purposes of the statute.

Petitioner appeals a city decision determining that a fishing platform proposed to be erected adjacent to petitioner’s hydropower facility is not regulated by the city’s comprehensive plan or zoning ordinance. OAR 635-041-0610(3)(c)(B) authorizes the Confederated Tribes of the Grand Ronde Community of Oregon (Tribes) to harvest fish from a platform to be constructed at a location mutually agreed on by the Tribes and the Oregon Department of State Lands (DSL). In their application to DSL, the Tribes were required to include a Certificate of Compliance from the local planning authority. In signing the Tribes’ application, the city’s planning manager indicated that the project was not regulated by the local comprehensive plan or zoning ordinance. Fourteen days after the Tribes submitted their application to DSL, petitioner received a copy. Twenty-six days later, petitioner transmitted a copy to its attorney. Seven days after that, petitioner received notice from its attorney that the application could constitute a land use decision. Three days later, petitioner filed its Notice of Intent to Appeal (NITA).

Under ORS 197.830(3)(b), adversely affected parties may appeal land use decisions which were made without a hearing, and where no notice was required pursuant to state law, within twenty-one days of the date they “knew or should have known” of the decision. Because petitioner did not file its NITA within twenty-one days of when it received a copy of the application, the Tribes argue that it is untimely filed and should be dismissed. Petitioner responds that, because it filed its NITA three days after receiving notice from its attorney that the application constituted a land use decision, it met the statutory deadline. LUBA agrees with the Tribes that, for purposes of ORS 197.803(3), petitioner “knew” of the decision when it received a copy of the application, and could not delay the 21-day appeal period by simply failing to read the decision, recognize that it could be a land use decision, or timely transmit a copy to its attorney. The appeal is therefore untimely filed and DISMISSED.