Aleali v. City of Sherwood

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 04-02-2014
  • Case #: A155112
  • Judge(s)/Court Below: Sercombe, P.J. for the Court; Hadlock, J.; and De Muniz, J.
  • Full Text Opinion

A deficiency in pre-hearing notice invoking delayed appeal rights, under ORS 197.830(3), is determined solely by state law procedures, and not by local law.

Petitioner Morteza Aleali (Aleali) appealed the Land Use Board of Appeals’ (LUBA) decision to dismiss his appeal as untimely under ORS 197.830(9). Aleali argued that the time to appeal the land use decision on the shopping center was tolled, under ORS 197.830(3), because he was not provided a hearing. This would allow him to appeal beyond the 21 day limit in ORS 197.830(9). Aleali’s property is located more than 100 feet from the proposed land use, but within 1,000 feet of the proposed land use. Aleali did not receive pre-hearing notice, which would be required by local law (within 1,000 feet) but not required by state law (within 100 feet). The Court agreed with LUBA’s dismissal of the appeal as untimely. The Court approached the issue by looking at the text, context, and legislative history of the statute. Ultimately, the Court determined that delayed appeal rights are determined by state, and not local, law. The textual analysis of “without providing a hearing” included when a hearing was held but notice was defective. Here, LUBA held three hearings but Aleali was given defective notice under local law, so he would be included. The question of whether local law or state law determined the notice requirement was decided using the context of ORS 197.830(3) and ORS 197.830 as a whole, including its amendments. ORS 197.830 qualifies a petitioner’s right to appeal a land use decision solely by operation of state law. Required state law procedures establish delayed appeal rights. Aleali was not required to receive prehearing notice of the land use decision because of the location of his property. Affirmed.

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