Caldwell Farms, LLC v. City of Corvallis

(1) Where a petitioner timely files its NITA and is only prevented from serving copies on required persons because the local government declines to release those persons’ contact information, LUBA will not dismiss the appeal absent substantial prejudice to the parties. (2) Under ORS 222.127, while cities are prohibited from referring annexations to their voters when the listed criteria are met, they may still apply other code provisions to the application.

The subject property is located within the city’s urban growth boundary and abuts the city’s borders to the north and west. Petitioner applied for city annexation of the property. The city denied the application and this appeal followed.

Under OAR 661-010-0015, petitioners must serve copies of their notice of intent to appeal (NITA) on all persons “to whom written notice of the land use decision . . . was mailed” on or before the date the NITA must be filed with LUBA. Because intervenor received notice of the decision, but was not timely served with petitioners’ NITA, intervenor moves to dismiss the appeal. Because petitioners attempted to serve all required persons and were only thwarted because the city declined to release the contact information for certain individuals including intervenor, because nothing in LUBA’s rules requires petitioners to search more broadly for such contact information, because timely service of the NITA is not jurisdictional and late service will not result in dismissal absent substantial prejudice to the parties, and because intervenor’s motion to intervene was timely filed, meaning their rights were not prejudiced, the motion is denied.

Under ORS 222.127, where a city’s laws require annexations to be submitted to its electors, “the legislative body of the city shall annex the territory without submitting the proposal to the electors” if certain criteria are met. While the city concluded it could not submit petitioners’ application to the voters, it also concluded it could not approve the application unless the site was “capable of being served by urban services and facilities required with development,” as required by Corvallis Land Development Code (LDC) 2.6.30.06. In the first assignment of error, petitioners argue that, because its application met the criteria at ORS 222.127, the city was required to approve it regardless of LDC 2.6.30.06. LUBA agrees with respondents that, because both the plain language and legislative history of ORS 222.127 indicate that only the voter referral requirement is not applicable where the criteria are met, the city was not prohibited from applying other requirements. In addition, because the city’s interpretation that LDC 2.6.30.06 applies even if the annexation is not referred to the voters is not inconsistent with that provision’s express language or underlying purposes or policies, the first assignment of error is denied, and the city’s decision is AFFIRMED.