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Aleali v. City of Sherwood

Court of Appeals of Oregon

April 2, 2014

MORTEZA ALEALI, Petitioner,
v.
CITY OF SHERWOOD; and LANGER GRAMOR, LLC, Respondents

Argued and Submitted November 7, 2013.

Land Use Board of Appeals 2013054.

Christopher Winter argued the cause for petitioner. With him on the brief were Courtney Johnson and Crag Law Center.

Christopher D. Crean argued the cause for respondent City of Sherwood. With him on the brief was Beery Elsner & Hammond, LLP.

Seth J. King argued the cause for respondent Langer Gramor, LLC. With him on the brief was Perkins Coie LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.

OPINION

[262 Or.App. 61] SERCOMBE, P. J.

The City of Sherwood (city) made land use decisions following public hearings by its planning commission. More than seven months later, petitioner sought review of

Page 748

those decisions by filing a notice of intent to appeal with the Land Use Board of Appeals (LUBA or board). LUBA dismissed the appeal as untimely under ORS 197.830(9), which requires that the notice be filed with LUBA " not later than 21 days after the date the decision sought to be reviewed becomes final."

Before LUBA, petitioner contended that the time to appeal the land use decision was tolled under ORS 197.830(3), which allows an extended appeal period when " a local government makes a land use decision without providing a hearing." Petitioner argued that, although public hearings were held, he was not " provid[ed] a hearing" because he was not notified of the hearings as required by local ordinance and given a meaningful opportunity to participate. LUBA concluded that ORS 197.830(3) did not provide petitioner with an extended time to appeal. It interpreted the phrase " without providing a hearing" in ORS 197.830(3) to mean either (1) that a required hearing on the land use decision was not held at all or (2) that a hearing was held, but was not practically " provid[ed]," because a petitioner was not given a prehearing notice and opportunity to participate in the hearing as required under state law. LUBA dismissed the appeal as untimely under ORS 197.830(9), concluding that petitioner's time to appeal was not tolled under ORS 197.830(3), given that hearings were held and state law did not require a prehearing notice to be mailed to petitioner. On review, petitioner asserts that LUBA's construction of ORS 197.830(3) is " unlawful in substance" and seeks reversal of the dismissal order. See ORS 197.850(9)(a) (court shall reverse or remand LUBA's order if the order is " unlawful in substance" ). As explained below, we conclude that LUBA did not err in dismissing petitioner's appeal as untimely. Accordingly, we affirm.

Except as noted, the facts relevant to the issue on review are undisputed. Respondent Langer Gramor, LLC (respondent) sought site plan and conditional use approvals from the city planning commission for a commercial shopping [262 Or.App. 62] center. The application was considered at three public hearings. The city published and posted notice of the public hearings. In addition, as required by local ordinance, the city mailed prehearing notice to a group of property owners located within 1,000 feet of the proposed shopping center property. See City of Sherwood, Oregon Zoning and Community Development Code § 16.72.020.C.1 (" For [various approvals, including conditional use permits], the City shall send written notice by regular mail to owners of record of all real property within one thousand (1,000) feet from the property subject to the land use action." ). Petitioner owned property that was located more than 100 feet, but less than 1,000 feet, from the proposed shopping center property.

The mailed prehearing notice required by the city's code exceeded that mandated by state law: Under ORS 197.763(2), which sets out the process required for quasi-judicial land use hearings conducted before a local government entity,

" (a) Notice of the hearings governed by this section shall be provided to the applicant and to owners of record of property on the most recent property tax assessment roll where such property is located:
" (A) Within 100 feet of the property which is the subject of the notice where the subject property is wholly or in part within an urban growth boundary[.]" [1]

(Emphasis added.)

The land use decisions issued on November 9, 2012. Petitioner filed his notice of intent to appeal with LUBA on June 18, 2013. The city and respondent moved to dismiss the appeal as untimely under ORS 197.830(9), which provides, in relevant part:

" A notice of intent to appeal a land use decision or limited land use decision shall be filed [with LUBA] not later than 21 days after the date the decision sought to be reviewed becomes final."

Page 749

[262 Or.App. 63] In response, petitioner argued that the appeal was timely under ORS 197.830(3), which provides:

" If a local government makes a land use decision without providing a hearing, except as provided under ORS 215.416(11) or 227.175(10), or the local government makes a land use decision that is different from the proposal described in the notice of hearing to such a degree that the notice of the proposed action did not reasonably describe the local government's final actions, a ...

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