325 P.3d 747
Or. Ct. App.2014Background
- City of Sherwood held three public hearings on a site plan/conditional‑use application for a shopping center; city posted and published notice and mailed prehearing notices to owners within 1,000 feet under local code. Petitioner’s property lay between 100 and 1,000 feet from the site.
- State statute (ORS 197.763) requires mailed prehearing notice only to owners within 100 feet for properties inside an UGB; the city’s 1,000‑foot mailing requirement exceeded state law.
- The city’s land use decisions issued on November 9, 2012. Petitioner filed a notice of intent to appeal to LUBA on June 18, 2013 (well after the 21‑day deadline in ORS 197.830(9)).
- Petitioner argued his appeal deadline was tolled under ORS 197.830(3) because he was not “provid[ed] a hearing” — he claimed he did not receive the city’s mailed prehearing notice and therefore lacked a meaningful opportunity to participate.
- LUBA dismissed the appeal as untimely, construing ORS 197.830(3) to toll only when (a) no hearing was held, or (b) a hearing was not practically provided because prehearing notice required by state law (not merely local law) was not given.
- On judicial review, the court affirmed LUBA, concluding ORS 197.830(3) tolls the appeal period where no hearing is held or where required prehearing notice under state law (ORS 197.763/197.195) was not provided; local‑only notice failures do not toll the LUBA deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “without providing a hearing” in ORS 197.830(3) includes defective prehearing notice that prevents participation | Petitioner: phrase includes failures to give required prehearing notice (state or local), so tolling applies if person lacked notice and opportunity to participate | City/LUBA: phrase should be narrowly read — tolling applies only where no hearing held or where state law notice requirements were not met; local notice alone should not extend LUBA jurisdiction | Held: Phrase covers (1) no hearing at all and (2) hearings not practically provided because required prehearing notice under state law (not merely local ordinances) was not given; local‑only notice failures do not toll the LUBA deadline. |
| Whether local notice requirements can extend LUBA appeal deadlines | Petitioner: local ordinance’s broader notice requirement should toll the LUBA deadline when not followed | City/LUBA: allowing local rules to govern LUBA jurisdiction would undermine the legislature’s time‑is‑of‑the‑essence policy and create inconsistent finality rules | Held: LUBA deadlines are governed by state law; local notice requirements do not, by themselves, toll ORS 197.830(9). |
| Proper interpretive method for ORS 197.830(3) | Petitioner: text does not distinguish state vs local notice; should read broadly to prevent procedural disenfranchisement | City: statutory context and policy favor a narrow construction tied to state notice rules | Held: Court applied text, context, and legislative history (Gaines framework) and concluded context points to state notice standards (ORS 197.763/197.195) as the applicable baseline. |
| Effect of statutory tolling caps (ORS 197.830(6)) on meaning of “providing a hearing” | Petitioner: not dispositive of original meaning | City: caps show legislature intended state notice schemes to define tolling triggers | Held: The cap provisions and cross‑references to ORS 197.763/197.195 support that lack of prehearing notice under state law (not local law) is a condition for tolling. |
Key Cases Cited
- State v. Gaines, 346 Or. 160 (Or. 2009) (sets out text, context, legislative history framework for statutory interpretation)
- Halperin v. Pitts, 352 Or. 482 (Or. 2012) (later statutes can show consistent word usage and assist interpretation of earlier statutes)
- Force v. Dept. of Rev., 350 Or. 179 (Or. 2011) (statutory context principle: interpret meaning in light of other parts of same statute)
- Stull v. Hoke, 326 Or. 72 (Or. 1997) (court’s responsibility to identify correct statutory interpretation even if parties omit legislative history)
- Orenco Neighborhood v. City of Hillsboro, 135 Or. App. 428 (Or. Ct. App. 1995) (distinguishes post‑acknowledgment amendment appeal framework and rejects tolling based solely on local notice provisions)