Lincoln Woods Apartments v. City of Lincoln City

(1) ORS 197.830(3) only applies where a petitioner is entitled to notice under state statute as opposed to local ordinance. (2) In order to demonstrate that notice of a proposed action did not reasonably describe a local government’s final actions under ORS 197.830(3), a petitioner must explain how the notice misled them. For such purposes, whether a petitioner was misled by a different notice of a different local proceeding on a different, legislative action is irrelevant, even if the two actions concern similar subjects.

The city applied for a planning director interpretation of whether transitional housing is similar to an Emergency Shelter and therefore conditionally allowed in the General Commercial (GC) zone. The planning director concluded it was. Based on that decision, the city applied for a conditional use permit (CUP) to operate transitional housing on property zoned GC. Notice of the CUP hearing was sent to property owners within 250 feet, including petitioners. Petitioners did not participate in the hearing. Based on the planning director’s decision, the planning commission approved the CUP for transitional housing. Separately, the planning commission recommended to the city council zoning code text amendments defining “transitional housing” and adding it to the list of conditional uses in the GC zone. On December 23, 2019, the city mailed the CUP decision to participants in the proceeding. That decision was not appealed. Because petitioners argued before city council that adopting the text amendments might conflict with state law, the city council ultimately did not consider them. On January 30, 2020, petitioners filed their notice of intent to appeal (NITA) the planning commission’s CUP decision.

Under Lincoln City Code 17.76.040(B), planning commission decisions become final on mailing. Under ORS 197.830(9), NITAs must be filed within 21 days of when a decision becomes final. Because petitioners filed their NITA more than 21 days after the CUP decision was mailed, the city argues the appeal should be dismissed as untimely. Under ORS 197.830(3), if notice of a proposed action did not reasonably describe the final action, adversely affected persons may appeal the decision to LUBA notwithstanding ORS 197.830(9). Petitioners argue that, because notice of the CUP hearing did not reasonably describe the CUP decision, and because they filed their NITA within 21 days of learning the notice was inaccurate, their appeal was timely. Because ORS 197.830(3) only applies where a petitioner is entitled to notice under state statute as opposed to local ordinance, because ORS 197.763(2)(a)(A) only requires notice to property owners within 100 feet of the subject property, and because petitioners do not attempt to establish that they qualify, LUBA concludes petitioners may not rely on ORS 197.830(3). In addition, even if petitioners could rely on ORS 197.830(3), LUBA agrees with the city that the notice did reasonably describe the CUP decision since petitioners have not explained how it misled them and since it is irrelevant whether notice of the text amendments misled them with respect to the CUP. The appeal is therefore DISMISSED.