Dobson v. City of Hines

(1) Under ORS 197.830(9), Notice of Intent to Appeal plan and land use regulation amendments must be filed not later than 21 days after notice of the decision sought to be reviewed is mailed or otherwise submitted to parties entitled to notice under ORS 197.615. (2) Under ORS 197.763, whether the petitioner received notice of a hearing does not affect whether the city mailed it.

Petitioner appeals a city ordinance to adopt flood damage prevention regulations as part of the city’s comprehensive plan and to rezone six properties. More than four years later, petitioner filed her Notice of Intent to Appeal (NITA) the city’s decision. ORS 197.830(9) provides, in relevant part, “[a] notice of intent to appeal plan and land use regulation amendments processed pursuant to ORS 197.610 to 197.625 shall be filed not later than 21 days after notice of the decision sought to be reviewed is mailed or otherwise submitted to parties entitled to notice under ORS 197.615.” In general, in order to appeal a land use decision under ORS 197.830(2), the petitioner must have appeared during the local proceedings. Respondent argues that the appeal was not filed within the time required by ORS 197.830(9) and that, because petitioner did not appear below, they lack standing under ORS 197.830(2).

Under ORS 197.615(4), local governments must provide notice of PAPAs to persons who participated in the local proceedings or who requested such notice in writing. Petitioner argues her appeal was timely filed, arguing she was not provided notice of the initial evidentiary hearing as required under ORS 197.615(4). Because petitioner neither participated in the local proceedings nor requested notice of the decision, LUBA concludes the NITA deadline is not tolled. In addition, LUBA agrees with respondent that, because petitioner did not appear below, they lack standing under ORS 197.380(2).

Under ORS 197.830(3), if a local government makes a land use decision that is different from the proposal described in the notice of hearing, such that the notice did not reasonably describe the local government’s final actions, adversely affected persons may appeal the decision within 21 days of actual notice where notice is required. Under ORS 197.763(2), notice of quasi-judicial land use hearings must be provided to property owners within 100 feet of the subject property. Petitioner argues that, because the city did not provide her the required notice, the deadline to file an appeal did not begin until she received actual notice of the decision. Because the record includes evidence that notice of the hearing was mailed to petitioner, and because whether petitioner received that notice does not affect whether the city mailed it, LUBA agrees with the city that petitioner is not entitled to rely on ORS 197.830(3) in filing a delayed appeal.

Under ORS 197.830(6), delayed appeal periods may not exceed three years after the decision or ten years if required notice was not provided. Because LUBA concludes that notice was provided, the appeal period could not exceed three years. Here, petitioner filed a NITA more than four years after the decision. For all of the foregoing reasons, petitioner’s appeal is DISMISSED.