City of Sherwood -

IN THE COURT OF APPEALS OF THE STATE OF OREGON

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

Land Use Board of Appeals No. 2013-054 CA A155112 EXPEDITED PROCEEDING UNDER ORS 197.850

____________________________________

ANSWERING BRIEF OF

RESPONDENT CITY OF SHERWOOD

____________________________________

Appeal from Land Use Board of Appeals Case No. 2013-054

Final Opinion and Order Dated August 22, 2013

Michael A. Holstun, Board Chair, Tod A. Bassham, Melissa M. Ryan

____________________________________

Christopher G. Winter, OSB #984355

Courtney B. Johnson, OSB #077221

Crag Law Center

917 SW Oak St., Ste. 417

Portland, OR 97205-2807

Phone: (503) 525-2725

Email: [email protected]


Of Attorneys for Petitioner

Christopher D. Crean, OSB #942804

Beery, Elsner & Hammond, LLP

1750 SW Harbor Way, Ste. 380


Phone: (503) 226-7191

E-mail: [email protected]

Of Attorney for Respondent

City of Sherwood

(continued on reverse)

October 2013

October 23, 2013 01:08 PM

mailto:[email protected]



Seth J. King, OSB #071384

Perkins Coie, LLP

1120 NW Couch St., 10th Floor

Portland , OR 97209-4128

Phone: (503) 727-2000 x 2024


Of Attorneys for Respondent

Langer Gramor LLC


i

TABLE OF CONTENTS

I. STATEMENT OF THE CASE ..................................................................... 1

A. Nature of the Proceeding and Relief Sought ......................................... 1

B. Nature of Judgment Sought to be Reviewed ......................................... 1

C. Statutory Basis for Appellate Jurisdiction ............................................. 1

D. Date of Final Order and Timeliness of Petition for Review ................. 1

E. Nature and Jurisdictional Basis of State Agency Action Regarding

Which Review is Sought ....................................................................... 1

F. Question Presented ................................................................................ 2

G. Summary of Argument .......................................................................... 2

H. Summary of Material Facts ................................................................... 3

II. ASSIGNMENT OF ERROR ........................................................................ 5

A. Preservation of Error ............................................................................. 5

B. Standard of Review ............................................................................... 5

C. Argument ............................................................................................... 5

1. LUBA Correctly Ruled That ORS 197.830(3) Does Not Apply

to a Notice Requirement That Is Not Required By State Law ......... 5

2. The City’s Determination of Local Public Policy Cannot

Expand LUBA’s Jurisdiction. ........................................................12

III. CONCLUSION ...........................................................................................13

APPENDIX

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ii

TABLE OF AUTHORITIES

Page

Cases

Friends of Jacksonville v. City of Jacksonville,

189 Or App 283, 76 P3d 121 (2003) ..................................................................... 6

League of Women Voters of Oregon v. Washington County,

56 Or App 217, 641 P2d 608 (1982) ..................................................................... 5

Leonard v. Union County,

24 Or LUBA 362 (1992) ........................................................................................ 6

Orenco Neighborhood Assoc. v. City of Hillsboro,

135 Or App 428, 899 P2d 720 (1995) ...................................................... 6, 7, 8, 9

Ray v. Douglas County,

140 Or App 24, 914 P2d 26 (1996) ....................................................................... 6

Statutes

ORS 197.183 .............................................................................................................. 8

ORS 197.195(3) ......................................................................................................... 8

ORS 197.365 .............................................................................................................. 8

ORS 197.610 to 197.630 ............................................................................................ 7

ORS 197.763(2)(a) ............................................................................................ 10, 12

ORS 197.763(2)(a)(A) .........................................................................................2, 12

ORS 197.794 .............................................................................................................. 8

ORS 197.805 .............................................................................................................. 9

ORS 197.810 .............................................................................................................. 5

ORS 197.820 .............................................................................................................. 5

ORS 197.825 .............................................................................................................. 5

ORS 197.825(1) ......................................................................................................... 1

ORS 197.830 .............................................................................................................. 5

ORS 197.830(2) .......................................................................................................12

ORS 197.830(3) ............................................................................ 2, 3, 4, 7, 8, 11, 13

ORS 197.830(8) ......................................................................................................... 7

ORS 197.830(9) ........................................................................ 2, 4, 6, 7, 8, 9, 11, 13

ORS 197.850(1) ......................................................................................................... 1

iii

ORS 197.850(3)(a) ..................................................................................................... 1

ORS 197.850(9) ......................................................................................................... 5

ORS 215.416(11) ....................................................................................................... 8

ORS 227.175(1) ......................................................................................................... 8

ORS 227.186 .............................................................................................................. 8

Local Codes

Sherwood Municipal Code 16.72.020.C ............................................................. 2, 10

1

I. STATEMENT OF THE CASE

A. Nature of the Proceeding and Relief Sought

Respondent City of Sherwood (“City”) accepts Petitioner’s description of

the nature of the proceeding and relief sought.

B. Nature of Judgment Sought to be Reviewed

The City accepts Petitioner’s description of the judgment sought to be

reviewed.

C. Statutory Basis for Appellate Jurisdiction

The City agrees with Petitioner that this Court has jurisdiction pursuant

to ORS 197.850(1), (3)(a).

D. Date of Final Order and Timeliness of Petition for Review

The City agrees that the Land Use Board of Appeals (“LUBA”) issued its

Final Order (“Final Order”) on August 22, 2013, and that Petitioner timely filed

an appeal.

E. Nature and Jurisdictional Basis of State Agency Action Regarding

Which Review is Sought

LUBA issued the Final Order on review of a local land use decision over

which LUBA has exclusive jurisdiction. ORS 197.825(1). LUBA dismissed

the action on the City’s and Intervenor-Respondent’s Motions to Dismiss

because the appeal was not timely filed.

2

F. Question Presented

Can a local government expand LUBA’s jurisdiction by local ordinance?

G. Summary of Argument

The City is required to provide notice of a quasi-judicial land use

application to all property owners within 100 feet of the proposed development

site. ORS 197.763(2)(a)(A). The City, by ordinance, has elected to expand this

statutory requirement and requires mailed notice to all property owners within

1,000 feet of the proposed development site. Sherwood Municipal Code

(“SMC”) 16.72.020.C. Petitioner’s property is more than 100 feet but less than

1,000 feet from the proposed development site.

Under ORS 197.830(9), an appeal of a local land use decision must be

filed with LUBA within 21 days of the date the decision becomes final. The

local decision in this case became final on November 9, 2012. Petitioner filed

the appeal more than seven months later, on June 18, 2013. LUBA properly

dismissed the appeal because Petitioner is not entitled to notice under state law

and, therefore, any failure by the City to mail notice required solely by local

ordinance does not toll the appeal period under ORS 197.830(3).

Oregon courts have consistently held that the requirement to file an

appeal within 21 days under ORS 197.830(9) is jurisdictional. The Oregon

Legislature, in turn, has provided a number of exceptions to this jurisdictional

rule, including the tolling provisions of ORS 197.830(3). However, as a state

3

agency, LUBA’s jurisdiction is established by statute and cannot be made

subject to the whims of local ordinance. Accordingly, LUBA correctly

concluded that any failure by the City to provide notice required only by local

ordinance does not invoke the tolling provisions of ORS 197.830(3).1

H. Summary of Material Facts

Intervenor-Respondent Langor Gramor LLC applied to the City for

design review and a conditional use permit to construct a shopping center. Rec.

221a.2 Notice of the initial public hearing on the application was mailed to all

property owners within 1,000 feet of the site on August 31, 2012. Rec. 131-

142. On November 9, 2012, the Sherwood Planning Commission issued a final

decision approving the application. Rec. 169, 187a. Petitioner filed his Notice

of Intent to Appeal (“NITA”) on June 18, 2013, seven months after the decision

became final. Rec. 169, 186. On page 2 of the NITA, Petitioner states that the

“records of the City of Sherwood indicate that the following person(s) were

1 To be clear, the City asserts it did provide Petitioner with notice of the initial

evidentiary hearing. However, because it was not necessary to resolve factual

issues in its analysis, LUBA assumed without deciding that the City failed to

provide notice. Rec. 9; Final Order, p.3.

2 The LUBA record is paginated only on the front of each page; the back side is

not numbered. In this brief, the City refers to the back side of each page by

reference to the page number from the front side followed by “a.” For example,

the back of page 221 is shown as “Rec. 221a.”

4

listed as receiving written notice of this land use decision.” Rec. 170.

Petitioner is listed on page 15 of the NITA. Rec. 183.

As noted, notice of intent to appeal a local land use decision must be

filed with LUBA within 21 days of the date the decision becomes final.

ORS 197.830(9). Because the decision became final on November 9, 2012,

the appeal was due not later than November 30, 2012. Petitioner filed the

appeal on June 18, 2013, more than 21 days from the date of the decision.

Rec. 169.

Petitioner does not contend the NITA was filed within 21 days as

required by ORS 197.830(9). Instead, Petitioner argues that because the

City “did not provide the legally required notice of hearing to Mr. Aleali,”

the 21-day appeal period was tolled under ORS 197.830(3). Rec. 44.

Because the City’s 1,000-foot notice requirement has no analog in

state statute, and recognizing that giving effect to such purely local

procedural requirements “undercuts the statutory preference for and

emphasis on the importance of finality of land use decisions,” LUBA

declined to extend the tolling provisions of ORS 197.830(3) to notice that is

required only by local ordinance. Accordingly, because the NITA was not

filed within 21 days of the decision, LUBA dismissed the appeal.

5

II. ASSIGNMENT OF ERROR

A. Preservation of Error

The City agrees that Petitioner sufficiently preserved the assignment of

error.

B. Standard of Review

The City agrees that the appropriate standard of review is whether

LUBA’s decision is unlawful in substance or procedure. ORS 197.850(9).

C. Argument

LUBA is a state agency created by the Oregon Legislature and, as such,

its jurisdiction is established by statute. See ORS 197.810, 197.825, 197.830.

The City lacks authority to expand LUBA’s statutory jurisdiction by local

ordinance. Accordingly, LUBA correctly concluded that exercising jurisdiction

over an appeal that arises solely from a purely local notice requirement would

impermissibly expand its limited jurisdiction.

1. LUBA Correctly Ruled That ORS 197.830(3) Does Not Apply to

a Notice Requirement That Is Not Required By State Law

LUBA is the state administrative agency responsible for providing quasi-

judicial review of certain local government land use decisions. ORS 197.810

and 197.820. LUBA is a creature of statute and, as such, can only exercise the

authority granted it by the legislature. League of Women Voters of Oregon v.

Washington County, 56 Or App 217, 220, 641 P2d 608, 609 (1982) (“Because

6

LUBA is a creature of the legislature, its jurisdiction is limited by the

legislation creating it.”).

As noted above, the 21-day appeal period set forth in ORS 197.830(9) is

jurisdictional and the failure to file a timely appeal results in dismissal. Ray v.

Douglas County, 140 Or App 24, 914 P2d 26 (1996) (filing of the notice is a

jurisdictional event). Accordingly, if an appeal is not timely filed, it must be

dismissed because LUBA lacks jurisdiction to consider it. Friends of

Jacksonville v. City of Jacksonville, 189 Or App 283, 76 P3d 121 (2003). The

Legislature has created a number of exceptions to the 21-day filing requirement

including, as relevant here, the failure to provide a hearing on a land use

application when a hearing is required. ORS 197.830(3).

In Leonard v. Union County, 24 Or LUBA 362 (1992), LUBA extended

the exception in ORS 197.830(3) to circumstances in which the local

government failed to provide notice to a person who was otherwise entitled to

notice “under state or local law.” However, the Court of Appeals subsequently

overruled Leonard to the extent the local government’s obligation to provide

notice of a hearing on a legislative land use application is established by local

ordinance, rather than by state statute. Orenco Neighborhood Assoc. v. City of

Hillsboro, 135 Or App 428, 899 P2d 720 (1995)

In Orenco, the petitioner alleged that Hillsboro failed to provide it with

prehearing notice of a proposed zone change that was required under the city’s

7

zoning ordinance but not required by state law. The petitioner argued that the

failure to provide it with such notice tolled the appeal period under ORS

197.830(3).

In rejecting the petitioner’s argument, the Court wrote:

Under petitioners’ reading, ORS 197.830(3) makes it possible for a

local notice provision, which has no analog in state statutes, either

to alter the time at which an unappealed amendment is deemed

acknowledged under those statutes or to extend the period for

appealing such an amendment beyond the time that it has been

deemed acknowledged under the statutes. Either of those effects

would distort the roles that the post-acknowledgment statutes

assign to the appeal process and to the finality of

acknowledgments. In the light of their text and context, it is not

plausible to interpret ORS 197.830(3) and (8)—as petitioners do—

as allowing the fundamental operation of the statutory post-

acknowledgment process to be a variable of, or a hostage to,

locally adopted procedures.3

Orenco, 135 Or App at 432.

The local decision in Orenco was a legislative amendment to Hillsboro’s

comprehensive plan and was subject to the notice requirements of ORS 197.610

to 197.630. On review, Hillsboro argued that the tolling provisions of ORS

197.830(3) should not apply to a purely local notice requirement for either a

legislative or quasi-judicial land use decision. The Court declined the city’s

3 ORS 197.830(8) was subsequently renumbered by the Legislature to the

current ORS 197.830(9).

8

invitation to address the broader question and instead limited its holding to the

legislative decision that was before it.4 Id. at 431.

In dismissing the appeal in this case, LUBA extended Orenco to a quasi-

judicial land use decision in reliance on the Court’s reasoning. In Orenco, the

Court found the 21-day appeal period in ORS 197.830(9) to be an “integral

part” of the statutory procedures for review of a legislative land use decision.

Id. at 432. Extending the tolling provisions of ORS 197.830(3) to a notice

requirement that arises only under local ordinance “would distort the roles that

the post-acknowledgment statutes assign to the appeal process and to the

finality of acknowledgments.” Id. Accordingly, the Court found that the

exception in ORS 197.830(3) to the jurisdictional filing requirement in ORS

197.830(9) only applies to notice that is required by state law.5

4 “The city contends that Leonard was wrongly decided in its entirety, and

especially insofar as it permits local provisions to affect the state law question

of LUBA’s jurisdiction. Because we conclude specifically that the time that

ORS 197.830(8) prescribes for appealing a post-acknowledgment amendment

to a land use regulation cannot be extended in this manner, we need not address

the broader ramifications of the city’s argument relating to Leonard and to

LUBA’s jurisdiction.” Orenco, 135 Or App at 431.

5 Cf. ORS 197.183 (notice to Oregon Department of Aviation of certain land

use applications); ORS 197.195(3) (notice of application for limited land use

decision); ORS 197.365 (notice of application for expedited land division);

ORS 197.794 (notice to railroad company of certain land use applications);

ORS 215.416(11) (notice of land use decision made without hearing); ORS

227.175(1) (same); ORS 227.186 (notice of certain zone changes).

9

The same reasoning applies in this case. As LUBA noted in the Final

Order, the statutory appeal period in ORS 197.830(9) applies to both legislative

and quasi-judicial land use decisions. LUBA then noted the statutory policy

directive—“time is of the essence”—under which LUBA was established:

It is the policy of the Legislative Assembly that time is of the

essence in reaching final decisions in matters involving land use

and that those decisions be made consistently with sound

principles governing judicial review. It is the intent of the

Legislative Assembly in enacting ORS 197.805 to 197.855 to

accomplish these objectives.

ORS 197.805.

LUBA expressly found that the danger of distorting the statutory scheme

for an appeal of a local land use decision that the Court relied on in Orenco

applies equally to a quasi-judicial land use decision:

Just as the Court concluded that a failure to comply with local law

notice requirements may not operate to defeat finality under the

statutory scheme for maintaining acknowledged comprehensive

plans and land use regulations in Orenco, we believe the Court

would similarly conclude a local government’s failure to comply

with local law notice requirements does not operate under ORS

197.830(3) to toll the statutory deadline that is set out in the first

sentence of ORS 197.830(9) for filing an appeal with LUBA . . .

[T]he possibility of late appeals based on the failure to satisfy local

hearing notice requirements similarly undercuts the statutory

preference for and emphasis on the importance of the finality of

land use decisions and limited land use decisions.

Rec. 5a-6; Final Order, p. 6-7.

10

In this case, because the proposed development site is entirely within an

urban growth boundary, ORS 197.763(2)(a) requires all property owners within

100 feet of the property receive mailed notice of the initial public hearing on the

application. Petitioner’s property is more than 100 feet from the proposed

development site; accordingly, he was not entitled to notice of the initial

evidentiary hearing under state law. However, because Petitioner’s property is

within 1000 feet of the proposed development site, he was entitled to notice of

the hearing under SMC 16.72.020.C. Petitioner alleges the City failed to

provide him with mailed notice as required by SMC 16.72.020.C.6

The City mailed notice of the initial evidentiary hearing on the proposed

development on August 31, 2012. Rec. 131-142. The hearing was held before

the Planning Commission on September 25, 2012. Rec. 132. The Planning

Commission subsequently held public hearings on October 23 and November 6,

2012. Rec. 221a. Petitioner did not appear either orally or in writing at any of

the hearings. The Planning Commission issued its final decision on November

9, 2012. Rec. 187a. Petitioner did not file an appeal of that decision within the

21 days of the decision. Instead, Petitioner filed his Notice of Intent to Appeal

on June 18, 2013, nearly seven months after the City’s final decision.

6 Again, the City contests this allegation and LUBA did not reach it.

11

Again, Petitioner does not claim that he was entitled to notice under state

law. Rather, he claims only that he is entitled to rely on the exception in ORS

197.830(3) to the jurisdictional requirements of ORS 197.830(9) by virtue of

the City’s alleged failure to provide notice that is required only by local

ordinance.

Petitioner simply misunderstands the nature of LUBA’s jurisdiction.

Because LUBA is a creature of statute, the extent of its jurisdiction is a question

of state law, and the answer to any question regarding its scope must be found

in the applicable statutes. Recognizing that giving effect to a local ordinance

under ORS 197.830(3) would frustrate the statutory scheme established by the

Legislature, the Court in Orenco held that the exception in ORS 197.830(3) to

the jurisdictional requirements of ORS 197.830(9) applies only to a city’s

failure to provide a hearing or notice that is required by state law. Conversely,

giving effect under ORS 197.830(3) to purely local notice requirements would

extend LUBA’s jurisdiction beyond what the Legislature intended and would

frustrate the policies of expedience and finality upon which the land use review

process is based. In this respect, there is no meaningful difference between a

legislative or quasi-judicial land use decision and LUBA did not err in so

holding.

For these reasons, the Court should affirm the Final Order.

12

2. The City’s Determination of Local Public Policy Cannot Expand

LUBA’s Jurisdiction

As noted above, ORS 197.763(2)(a) requires the City to provide notice of

a quasi-judicial land use hearing to property owners within 100 feet of the

subject property. Here, in an effort to increase public awareness of and

participation in local development activities, the City has chosen to require

notice to all property owners within 1,000 feet of the proposed development

site—ten times greater than required by state law. Thereafter, a person need

only appear in the local proceedings, either in person or in writing, to establish

standing to appeal the decision to LUBA. ORS 197.830(2).

Notwithstanding the City’s desire to improve public participation in local

decision-making, a determination of what constitutes good public policy at the

local level cannot act to expand LUBA’s jurisdiction. For example, if a city

adopted an ordinance that deemed any person living within 100 feet of the site

to have “appeared” in the local proceedings for purpose of appealing the

decision under ORS 197.830(2), it would expand LUBA’s jurisdiction beyond

what the legislature intended in the statute. Similarly, a city could not limit

LUBA’s jurisdiction by requiring notice only to the owners of property within

50 feet of the proposed development site in contravention of ORS

197.763(2)(a)(A).

13

In short, the City’s determination that it is good public policy to require

wider notice of certain land use applications than required by state law, while

admirable, cannot operate to expand (or contract) LUBA’s statutory

jurisdiction—only the Legislature can do so. Giving effect to the City’s 1,000

foot notice requirement to the tolling provisions of ORS 197.830(3) is contrary

to the efficiency and finality purposes of ORS 197.830(9), and goes well

beyond what the Legislature intended. Accordingly, LUBA did not err in

concluding that notice required solely by local ordinance does not toll the filing

deadline under ORS 197.830(9).

III. CONCLUSION

For the reasons set forth above and those found in Intervenor-Respondent

Langer’s Answering Brief, the Court should affirm the Final Order.

DATED this 23rd

day of October, 2013.

Respectfully submitted:

BEERY ELSNER & HAMMOND, LLP

s/ Christopher D. Crean

Christopher D. Crean, OSB #942804

Beery Elsner & Hammond, LLP

1750 SW Harbor Way, Ste. 380


Phone: (503) 226-7191



City of Sherwood


APPENDIX

INDEX

Page

ORS 197.763 ...................................................................................... APP-1 – APP-3

ORS 197.830 ...................................................................................... APP-4 – APP-7

SMC16.72.020 ................................................................................... APP-8 – APP-9

APP-1

197.763 Conduct of local quasi-judicial land use hearings; notice requirements; hearing procedures. The following procedures shall govern the conduct of quasi-judicial land use hearings conducted before a local governing body, planning commission, hearings body or hearings officer on application for a land use decision and shall be incorporated into the comprehensive plan and land use regulations: (1) An issue which may be the basis for an appeal to the Land Use Board of Appeals shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue. (2)(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; (B) Within 250 feet of the property which is the subject of the notice where the subject property is outside an urban growth boundary and not within a farm or forest zone; or (C) Within 500 feet of the property which is the subject of the notice where the subject property is within a farm or forest zone.

(b) Notice shall also be provided to any neighborhood or community organization recognized by the governing body and whose boundaries include the site. (c) At the discretion of the applicant, the local government also shall provide notice to the Department of Land Conservation and Development.

(3) The notice provided by the jurisdiction shall: (a) Explain the nature of the application and the proposed use or uses which could be authorized; (b) List the applicable criteria from the ordinance and the plan that apply to the application at issue; (c) Set forth the street address or other easily understood geographical reference to the subject property; (d) State the date, time and location of the hearing; (e) State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue precludes appeal to the board based on that issue;

APP-2

(f) Be mailed at least:

(A) Twenty days before the evidentiary hearing; or (B) If two or more evidentiary hearings are allowed, 10 days before the first evidentiary

hearing;

(g) Include the name of a local government representative to contact and the telephone number where additional information may be obtained; (h) State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost; (i) State that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and will be provided at reasonable cost; and (j) Include a general explanation of the requirements for submission of testimony and the procedure for conduct of hearings. (4)(a) All documents or evidence relied upon by the applicant shall be submitted to the local government and be made available to the public. (b) Any staff report used at the hearing shall be available at least seven days prior to the hearing. If additional documents or evidence are provided by any party, the local government may allow a continuance or leave the record open to allow the parties a reasonable opportunity to respond. Any continuance or extension of the record requested by an applicant shall result in a corresponding extension of the time limitations of ORS 215.427 or 227.178 and ORS 215.429 or 227.179. (5) At the commencement of a hearing under a comprehensive plan or land use regulation, a statement shall be made to those in attendance that: (a) Lists the applicable substantive criteria; (b) States that testimony, arguments and evidence must be directed toward the criteria described in paragraph (a) of this subsection or other criteria in the plan or land use regulation which the person believes to apply to the decision; and (c) States that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision maker and the parties an opportunity to respond to the issue precludes appeal to the board based on that issue. (6)(a) Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence, arguments or testimony regarding the application. The local hearings authority shall grant such request by continuing the public

APP-3

hearing pursuant to paragraph (b) of this subsection or leaving the record open for additional written evidence, arguments or testimony pursuant to paragraph (c) of this subsection. (b) If the hearings authority grants a continuance, the hearing shall be continued to a date, time and place certain at least seven days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence, arguments or testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence, arguments or testimony for the purpose of responding to the new written evidence. (c) If the hearings authority leaves the record open for additional written evidence, arguments or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings authority shall reopen the record pursuant to subsection (7) of this section. (d) A continuance or extension granted pursuant to this section shall be subject to the limitations of ORS 215.427 or 227.178 and ORS 215.429 or 227.179, unless the continuance or extension is requested or agreed to by the applicant. (e) Unless waived by the applicant, the local government shall allow the applicant at least seven days after the record is closed to all other parties to submit final written arguments in support of the application. The applicant’s final submittal shall be considered part of the record, but shall not include any new evidence. This seven-day period shall not be subject to the limitations of ORS 215.427 or 227.178 and ORS 215.429 or 227.179. (7) When a local governing body, planning commission, hearings body or hearings officer reopens a record to admit new evidence, arguments or testimony, any person may raise new issues which relate to the new evidence, arguments, testimony or criteria for decision-making which apply to the matter at issue. (8) The failure of the property owner to receive notice as provided in this section shall not invalidate such proceedings if the local government can demonstrate by affidavit that such notice was given. The notice provisions of this section shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television. (9) For purposes of this section: (a) “Argument” means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. “Argument” does not include facts. (b) “Evidence” means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision. [1989 c.761 §10a (enacted in lieu of 197.762); 1991 c.817 §31; 1995 c.595 §2; 1997 c.763 §6; 1997 c.844 §2; 1999 c.533 §12]

APP-4

197.830 Review procedures; standing; fees; deadlines; rules; issues subject to review; attorney fees and costs; publication of orders; mediation. (1) Review of land use decisions or limited land use decisions under ORS 197.830 to 197.845 shall be commenced by filing a notice of intent to appeal with the Land Use Board of Appeals. (2) Except as provided in ORS 197.620, a person may petition the board for review of a land use decision or limited land use decision if the person: (a) Filed a notice of intent to appeal the decision as provided in subsection (1) of this section; and (b) Appeared before the local government, special district or state agency orally or in writing. (3) 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 person adversely affected by the decision may appeal the decision to the board under this section: (a) Within 21 days of actual notice where notice is required; or (b) Within 21 days of the date a person knew or should have known of the decision where no notice is required. (4) If a local government makes a land use decision without a hearing pursuant to ORS 215.416 (11) or 227.175 (10): (a) A person who was not provided notice of the decision as required under ORS 215.416 (11)(c) or 227.175 (10)(c) may appeal the decision to the board under this section within 21 days of receiving actual notice of the decision. (b) A person who is not entitled to notice under ORS 215.416 (11)(c) or 227.175 (10)(c) but who is adversely affected or aggrieved by the decision may appeal the decision to the board under this section within 21 days after the expiration of the period for filing a local appeal of the decision established by the local government under ORS 215.416 (11)(a) or 227.175 (10)(a). (c) A person who receives notice of a decision made without a hearing under ORS 215.416 (11) or 227.175 (10) may appeal the decision to the board under this section within 21 days of receiving actual notice of the nature of the decision, if the notice of the decision did not reasonably describe the nature of the decision. (d) Except as provided in paragraph (c) of this subsection, a person who receives notice of a decision made without a hearing under ORS 215.416 (11) or 227.175 (10) may not appeal the decision to the board under this section.

APP-5

(5) If a local government makes a limited land use decision which is different from the proposal described in the notice to such a degree that the notice of the proposed action did not reasonably describe the local government’s final actions, a person adversely affected by the decision may appeal the decision to the board under this section: (a) Within 21 days of actual notice where notice is required; or (b) Within 21 days of the date a person knew or should have known of the decision where no notice is required. (6) The appeal periods described in subsections (3), (4) and (5) of this section: (a) May not exceed three years after the date of the decision, except as provided in paragraph (b) of this subsection. (b) May not exceed 10 years after the date of the decision if notice of a hearing or an administrative decision made pursuant to ORS 197.195 or 197.763 is required but has not been provided. (7)(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 (1) of this section, are:

(A) The applicant who initiated the action before the local government, special district or state agency; or (B) Persons who appeared before the local government, special district or state agency, orally or in writing.

(c) Failure to comply with the deadline or to pay the filing fee set forth in paragraph (a) of this subsection shall result in denial of a motion to intervene. (8) If a state agency whose order, rule, ruling, policy or other action is at issue is not a party to the proceeding, it may file a brief with the board as if it were a party. The brief shall be due on the same date the respondent’s brief is due and shall be accompanied by a filing fee of $100. (9) A notice of intent to appeal a land use decision or limited land use decision shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final. A notice of intent to appeal plan and land use regulation amendments processed pursuant to ORS 197.610 to 197.625 shall be filed not later than 21 days after notice of the decision sought to be reviewed is mailed or otherwise submitted to parties entitled to notice under ORS 197.615. Failure to include a statement identifying when, how and to whom notice was provided under ORS 197.615 does not render the notice defective. Copies of the notice of intent to appeal shall be served upon the local government, special district or state agency

APP-6

and the applicant of record, if any, in the local government, special district or state agency proceeding. The notice shall be served and filed in the form and manner prescribed by rule of the board and shall be accompanied by a filing fee of $200 and a deposit for costs to be established by the board. If a petition for review is not filed with the board as required in subsections (10) and (11) of this section, the filing fee and deposit shall be awarded to the local government, special district or state agency as cost of preparation of the record. (10)(a) Within 21 days after service of the notice of intent to appeal, the local government, special district or state agency shall transmit to the board the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceeding the record may be shortened. The board may require or permit subsequent corrections to the record; however, the board shall issue an order on a motion objecting to the record within 60 days of receiving the motion. (b) Within 10 days after service of a notice of intent to appeal, the board shall provide notice to the petitioner and the respondent of their option to enter into mediation pursuant to ORS 197.860. Any person moving to intervene shall be provided such notice within seven days after a motion to intervene is filed. The notice required by this paragraph shall be accompanied by a statement that mediation information or assistance may be obtained from the Department of Land Conservation and Development. (11) A petition for review of the land use decision or limited land use decision and supporting brief shall be filed with the board as required by the board under subsection (13) of this section. (12) The petition shall include a copy of the decision sought to be reviewed and shall state: (a) The facts that establish that the petitioner has standing. (b) The date of the decision. (c) The issues the petitioner seeks to have reviewed. (13)(a) The board shall adopt rules establishing deadlines for filing petitions and briefs and for oral argument. (b) At any time subsequent to the filing of a notice of intent and prior to the date set for filing the record, or, on appeal of a decision under ORS 197.610 to 197.625, prior to the filing of the respondent’s brief, the local government or state agency may withdraw its decision for purposes of reconsideration. If a local government or state agency withdraws an order for purposes of reconsideration, it shall, within such time as the board may allow, affirm, modify or reverse its decision. If the petitioner is dissatisfied with the local government or agency action after withdrawal for purposes of reconsideration, the petitioner may refile the notice of intent and the review shall proceed upon the revised order. An amended notice of intent shall not be required if the local government or state agency, on reconsideration, affirms the order or modifies the order with only minor changes.

APP-7

(14) The board shall issue a final order within 77 days after the date of transmittal of the record. If the order is not issued within 77 days the applicant may apply in Marion County or the circuit court of the county where the application was filed for a writ of mandamus to compel the board to issue a final order. (15)(a) Upon entry of its final order the board may, in its discretion, award costs to the prevailing party including the cost of preparation of the record if the prevailing party is the local government, special district or state agency whose decision is under review. The deposit required by subsection (9) of this section shall be applied to any costs charged against the petitioner. (b) The board shall also award reasonable attorney fees and expenses to the prevailing party against any other party who the board finds presented a position without probable cause to believe the position was well-founded in law or on factually supported information. (16) Orders issued under this section may be enforced in appropriate judicial proceedings. (17)(a) The board shall provide for the publication of its orders that are of general public interest in the form it deems best adapted for public convenience. The publications shall constitute the official reports of the board. (b) Any moneys collected or received from sales by the board shall be paid into the Board Publications Account established by ORS 197.832. (18) Except for any sums collected for publication of board opinions, all fees collected by the board under this section that are not awarded as costs shall be paid over to the State Treasurer to be credited to the General Fund. [1983 c.827 §31; 1985 c.119 §3; 1987 c.278 §1; 1987 c.729 §16; 1989 c.761 §12; 1991 c.817 §7; 1993 c.143 §1; 1993 c.310 §1; 1995 c.160 §1; 1995 c.595 §3; 1997 c.187 §1; 1997 c.452 §1; 1999 c.255 §2; 1999 c.348 §17; 1999 c.621 §3; 2003 c.791 §28; 2003 c.793 §6; 2009 c.885 §38; 2011 c.280 §9; 2011 c.483 §1]

APP-8

16.72.020 - Public Notice and Hearing A. Newspaper Notice Notices of all public hearings for Type III, IV and V land use actions required by this Code shall be published in a newspaper of general circulation available within the City two (2) calendar weeks prior to the initial scheduled hearing before the Hearing Authority and shall be published one additional time in the Sherwood Archer, Sherwood Gazette or similarly local publication, no less than 5 days prior to the initial scheduled hearing before the hearing authority. B. Posted Notice 1. Notices of all Type II, III, IV and V land use actions required by this Code shall be posted by the City in no fewer than five (5) conspicuous locations within the City, not less than fourteen (14) calendar days in advance of the staff decision on Type II applications or twenty (20) calendar days in advance of the initial hearing before the Hearing Authority for Type III, IV and V applications. 2. Signage shall be posted on the subject property fourteen (14) calendar days in advance of the staff decision on Type II applications and twenty (20) calendar days in advance of the hearing before the Hearing Authority for Type III, IV and V applications. a. On-site posted notice shall provide a general description of the land use action proposed, the project number and where additional information can be obtained. b. On-site posted notice shall be designed to be read by motorists passing by; the exact size and font style to be determined by the City. c. On-site posted notice shall be located on the property in a manner to be visible from the public street. For large sites or sites with multiple street frontages, more than one sign may be required. C. Mailed Notice l. For Type II, III, IV and V actions specific to a property or group of properties, 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. Written notice shall also be sent to Oregon Department of Transportation (ODOT), Metro, the applicable transit service provider and other affected or potentially affected agencies. If the subject property is located adjacent to or split by a railroad crossing ODOT Rail Division shall also be sent public notice. 2. Written notice to property owners shall be mailed at least fourteen (14) calendar days prior to a decision being made on a Type II land use action and at least twenty (20) calendar days in advance of the initial public hearing before the Hearing Authority. If two (2) or more hearings are required on a land use action, notices shall be mailed at least ten (10) calendar days in advance of the initial hearing before the Commission or Council. 3. For the purposes of mailing the written notice, the names and addresses of the property owners of record, as shown on the most recent County Assessor's records in the possession of the City, shall be used. Written notice shall also be mailed to homeowners associations when

APP-9

the homeowners association owns common property within the notification area and is listed in the County Assessor's records. 4. For written notices required by this Code, other than written notices to property owners of record, the City shall rely on the address provided by the persons so notified. The City shall not be responsible for verifying addresses so provided. 5. If a zone change application proposes to change the zone of property which includes all or part of a manufactured home park, the City shall give written notice by first class mail to each existing mailing address for tenants of the manufactured home park at least twenty (20) days but not more than forty (40) days before the date of the first hearing on the application. Such notice costs are the responsibility of the applicant. D. Failure to Receive Notice 1. The failure of a property owner or other party to an application to receive notice of a public hearing as provided in Code of this Chapter or to receive notice of continuances and appeals as provided by this Code due to circumstances beyond the control of the City, including but not limited to recent changes in ownership not reflected in County Assessors records, loss of the notice by the postal service, or an inaccurate address provided by the County Assessor or the party to the application, shall not invalidate the applicable public hearing or land use action. The City shall prepare and maintain affidavits demonstrating that public notices were mailed, published, and posted pursuant to this Code. 2. Persons who should have received notice of a proposed land use action but can prove, to the City's satisfaction that notice was not received due to circumstances beyond their control, may be permitted, at the City's discretion, to exercise the right to appeal the action as per Chapter 16.76. All appeals filed under such conditions shall cite the circumstances resulting in the non-receipt of the notice. (Ord. No. 2010-015, § 2, 10-5-2010; Ord. 2006-021; Ord. 2003-1148, § 3; 99-1079; 98-1053; 91-922, § 3; Ord. 86-851)

CERTIFICATE OF COMPLIANCE

WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS

Brief Length

I certify that (1) this brief complies with the word-count limitation of ORAP

5.05(2)(b) and (2) the word count of this brief (as described in ORAP 5.05(2)(a)) is

2,885 words.

Type Size

I certify that the size of the type in this brief is not smaller than 14 point for

both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

DATED this 23rd

day of October, 2013.


Christopher D. Crean, OSB # 942804



City of Sherwood

CERTIFICATE OF FILING AND SERVICE

I certify that on October 23, 2013, I directed the foregoing to be

electronically filed with the Clerk of the Court for the Oregon Court of Appeals by

using the Oregon Appellate eFiling system. The following participants in the case

will be served by the appellate CM/ECF system:

Christopher Winter

Courtney Johnson

Crag Law Center

917 SW Oak Street, Ste. 417


Of Attorneys for Petitioner

I further certify that some of the participants in the case are not registered

CM/ECF users. I directed two copies of the foregoing document to be served by

First-Class Mail, postage prepaid, on the following non-CM/ECF participants:

Seth J. King

Perkins Coie LLP

1120 NW Couch St., 10th Floor

Portland , OR 97209-4128


Langer Gramor LLC

Submitted by:


Christopher D. Crean, OSB # 942804



City of Sherwood

City of Sherwood -

Documents

Transcript of City of Sherwood -