Panabaker v. City of Hood River

It is the second sentence of ORS 197.830(9) that specifies the deadline for appealing a PAPA decision such as the Ordinance to LUBA, requiring that the appeal "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.

The petitioners appealed Ordinance 26, amending the city’s zooming ordinance.

On September 12, 2016, the city adopted an Ordinance which took effect on October 13, 2016. Before adopting it, the city notified the Department of Land Conservation and Development (DLCD) and property owners. Petitioners filed their notice of intent to appeal over seven years later, on October 24, 2023. The ordinance amended Title 17 of the Hood River Municipal Code (HRMC) as a post-acknowledgement land use regulation amendment. It added provisions regulating short-term rentals in residential zones, including HRMC 17.04.115(D) regarding nonconforming use of hosted homeshare and vacation home rentals. The ordinance allowed legally established rentals existing before its effective date to continue as nonconforming uses, with two grace periods for compliance: five years for parking requirements and seven years for full compliance with all zoning provisions.

ORS 197.830(9) requires that a notice of intent to appeal a land use decision or amendment be filed within 21 days after the decision becomes final. For plan and land use regulation amendments processed under ORS 197.610 to 197.625, the notice must be filed within 21 days after the decision is mailed or submitted to entitled parties. OAR 661-010-0015(1)(a) enforces this, stating that appeals filed after the 21-day deadline will not be considered, and the appeal will be dismissed. Respondents move to dismiss this appeal as untimely under ORS 197.830(9).

The petitioners argue that the Ordinance became final for them and similarly situated short-term rental (STR) owners on October 13, 2023, seven years after its effective date. They assert that the delayed finality is clear from the language of HRMC 17.04.115(D)(1), which specifies compliance with "then-applicable provisions" of the zoning code, making the Ordinance final only when those provisions took effect in 2023. Petitioners claim that an appeal in 2016 would not have been ripe since the specific provisions for compliance were unknown at that time. Therefore, they believe the decision became final in 2023.

The ordinance in question is a legislative post-acknowledgment plan amendment (PAPA), governed by ORS 197.610 to 197.625. In Orenco Neighborhood v. City of Hillsboro, the court clarified that ORS 197.830(9) sets two distinct 21-day appeal periods: one for land use decisions, and another for PAPA decisions, which starts when notice is given to entitled parties. The petitioners focused on the first appeal period for land use decisions, but the second appeal period for PAPAs applied. The respondent mailed notice on September 16, 2016, and the petitioners had 21 days to file their notice of intent to appeal (NITA). Filing the appeal on October 24, 2023—more than seven years later—was untimely. DISMISSED.