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Oakleigh-McClure Neighbors v. City of Eugene

Court of Appeals of Oregon

February 19, 2015

OAKLEIGH-McCLURE NEIGHBORS; Bryn Thoms; Sandy Thoms; Tammy Crafton; Karen Fleener-Gould; Scott Fleener-Gould; Cecelia Baxter-Heintz; and Paul Baxter-Heintz, Petitioners below, and Paul CONTE and Simon Trautman, Petitioners,
v.
CITY OF EUGENE and Oakleigh Meadows Co-Housing, LLC, Respondents

Argued and Submitted November 24, 2014.

Land Use Board of Appeals. 2014001.

William K. Kabeiseman argued the cause for petitioners. With him on the brief was Garvey Schubert Barer.

Anne C. Davies argued the cause for respondent City of Eugene. With her on the brief was City Attorney's Office.

Zack P. Mittge argued the cause for respondent Oakleigh Meadows Co-Housing, LLC. With him on the brief was Hutchinson, Cox, Coons, Orr, & Sherlock, P.C.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 504

[269 Or.App. 178] ARMSTRONG, P. J.

Petitioners Paul Conte and Simon Trautman seek judicial review of a final order of the Land Use Board of Appeals (LUBA), affirming, in part, a decision by the City of Eugene (the city) to grant approval to Oakleigh Meadows Co-Housing, LLC (applicant) for a tentative planned unit development. In their first assignment of error on review, petitioners contend that LUBA erred in denying a motion by petitioner Trautman to intervene; they also raise two assignments of error as to the merits of LUBA's final order.[1] Because we agree with petitioners that LUBA erred in denying Trautman's motion to intervene, we reverse and remand LUBA's order on that basis. That disposition, in turn, obviates the need for us to address petitioners' other assignments of error.

We limit our discussion of the facts to those pertinent to our consideration of LUBA's denial of Trautman's motion to intervene. Those facts are undisputed. Applicant applied to the city for tentative planned unit development (PUD) approval for a multi-unit residential development on 2.3 acres of land zoned low-density residential. The city's hearings official held a hearing on the application. Trautman did not appear at the hearing but submitted written testimony in a letter opposing the development. The letter included an address on Oakleigh Lane, which is approximately 275 yards from the proposed development and is owned by Trautman's mother-in-law.[2] On November 12, 2013, the hearings official approved the application, subject [269 Or.App. 179] to conditions. Trautman did not receive notice of the hearings official's decision, as required under Eugene Code (EC) 9.7335(1)(d) and ORS 227.173(4).[3] Others appealed the hearings official's decision to the Eugene Planning Commission. The commission held a public hearing and, on December 16, 2013, issued a final order affirming approval of the PUD with some modifications. Again, the notice of decision was not sent to Trautman, as required by EC 9.7685(1)(d)[4] and ORS 227.173(4), nor did Trautman receive notice of the public hearing.

On January 3, 2014, an association of neighbors and several individuals opposed to the development (neighbors) timely filed a notice of intent to appeal (or NITA) the commission's final order to LUBA and served copies of the notice pursuant to OAR 661-010-0015(2). OAR 661-010-0015(2) requires that, on or before the date the notice of intent to appeal is required to be filed with the board, it " shall be served on * * * all persons identified in the Notice as required by subsection (3)(f)." Subsection (3)(f), in turn, requires the notice of intent to appeal to identify, among others, " [a]ny other person

Page 505

to whom written notice of the land use decision or limited land use decision was mailed as shown on the governing body's records ." OAR 661-010-0015(3)(f)(D) (emphasis added). Trautman was not included among those served with neighbors' notice of intent to appeal.

Subsequently, the city discovered that it had failed to mail the notice of decision to everyone who had participated in the proceedings before the city, and, on February 4, 2014, the city mailed notice of the decision to the remaining people who were entitled to receive it, including Trautman.[5] In turn, on February 20, 2014, neighbors provided a certificate of service certifying that they had served a copy [269 Or.App. 180] of their notice of intent to appeal on the additional parties whom the city had identified as having been mailed written notice of the decision (and who therefore were entitled to receive a copy under OAR 661-010-0015(3)(f)(D)), including Trautman. On March 11, 2014--within 21 days of being served with the notice of intent to appeal, but more than two months after the notice was filed with LUBA--Trautman moved to intervene on the side of neighbors in the appeal before LUBA.

Applicant opposed Trautman's motion to intervene on the ground that it was untimely under ORS 197.830(7), because it was filed more than 21 days after the notice of intent to appeal had been filed.[6] ORS 197.830(7) provides:

" (a) Within 21 days after a notice of intent to appeal has been filed with the board under subsection (1) of this section, any person described in paragraph (b) of this subsection may intervene in and be made a party to the review proceeding by filing a motion to intervene and by paying a filing fee of $100.
" (b) Persons who may intervene in and be made a party to the review proceedings, as set forth in subsection ...

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