Phillips v. City of Happy Valley

Under ORS 197.830(3), an extension for the deadline of filing a notice of intent to appeal is not available when the city provided notice of a hearing and then adopted an ordinance consistent with the notice and hearing.

In March 2009, the city of Happy Valley sent notice that it would hold a hearing in April 2009 to consider the annexation and application of city comprehensive planning to ten properties. The city adopted the annexation and rezoning of the properties at that time. In September 2014, Phillips filed notice of intent to appeal with LUBA. The city moved to dismiss, arguing that under ORS 197.830(9), the deadline to file the appeal was 21 days after the decision. Phillips responded that the time for filing was extended by ORS 197.830(3) because notice defects caused the city to adopt the ordinance “without providing a hearing.” LUBA disagreed, finding that because the city provided notice of the hearing to Phillips and held that hearing, the cited portion of ORS 197.830(3) did not apply. Phillips attempted to argue that the extension should apply because “the local government ma[de] a land use decision that [was] different from the proposal described,” but LUBA found that there was no difference in the proposed and approved actions. Since no extension applied, Phillips’s appeal was not timely filed. DISMISSED.