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Court of Appeals Decision
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Last modified
4/27/2017 4:32:35 PM
Creation date
7/21/2015 10:26:44 AM
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Template:
PDD_Planning_Development
File Type
PDT
File Year
13
File Sequence Number
1
Application Name
OAKLEIGH COHOUSING
Document Type
Appeal Decision
Document_Date
2/19/2015
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Yes
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Cite as 269 Or App 176 (2015) 181 <br />However, after applicant renewed its objection <br />to Trautman's motion to intervene in its response brief, <br />LUBA reconsidered its decision and, in its final order, <br />denied Trautman's motion. LUBA found that "Trautman's <br />late filing of his motion to intervene undoubtedly occurred <br />because the city failed to initially mail notice of the deci- <br />sion to all persons who participated orally or in writing <br />during the proceedings, and thus provided inaccurate and <br />incomplete information to Neighbors about who should <br />be served with a copy of the NITA under OAR 661-010- <br />0015(3)(f)(D)." Nevertheless, LUBA concluded that ORS <br />197.830(7)(c) required it to deny Trautman's late-filed <br />motion. As to Mountain West Investment Corp., on which it <br />had earlier relied, LUBA appeared to reason that, "[t]o the <br />extent Mountain West Investment recognizes an exception <br />to the statutory deadline for intervention," that exception <br />is limited to a party who is the "applicant of record." <br />Petitioners now seek judicial review of LUBA's final <br />order, first assigning error to LUBA's denial of the motion <br />to intervene." Petitioners challenge LUBA's construction <br />of ORS 197.830(7), contending that it is "unlawful in sub- <br />stance." ORS 197.850(9)(a). We agree and, accordingly, <br />reverse and remand. <br />Petitioners argue that LUBA incorrectly inter- <br />preted ORS 197.830(7) and that its ruling "is inconsistent <br />with the policy governing LUBA review of land use deci- <br />sions." In particular, they contend that the 21-day period for <br />filing a motion to intervene under ORS 197.830(7) is trig- <br />gered by a notice of intent to appeal under ORS 197.830(1) <br />that is properly filed. And, petitioners assert, under OAR <br />661-010-0015(2), a properly filed notice of intent to appeal <br />requires service of the notice on all parties who participated <br />in the proceeding before the local government. Thus, it fol- <br />lows, in petitioners view, that, "[b] ecause the Notice of Intent <br />to Appeal was not properly served on Mr. Trautman[] until <br />February 20, 2014, the deadline for the motion to intervene <br />was not triggered until that date." They further argue that <br />e In its final order, LUBA largely affirmed the city, remanding on one assign- <br />ment of error only; in their second and third assignments of error here, petition- <br />ers renew several of the assignments of error that were rejected by LUBA. As <br />noted, we do not reach those assignments. <br />
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