IN THE COURT OF APPEALS OF THE STATE OF OREGON. Respondents. EXPEDITED PROCEEDING UNDER ORS PETITIONER S OPENING BRIEF

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1 IN THE COURT OF APPEALS OF THE STATE OF OREGON MORTEZA ALEALI, Petitioner v. CITY OF SHERWOOD and, LANGER GRAMOR, LLC Court of Appeals No. A LUBA No Respondents. EXPEDITED PROCEEDING UNDER ORS PETITIONER S OPENING BRIEF Appeal from Land Use Board of Appeals Case No Final Opinion and Order Dated August 22, 2013 Michael A. Holstun, Board Chair, Tod A. Bassham, Melissa M. Ryan Christopher Winter, OSB No chris@crag.org Courtney Johnson, OSB No courtney@crag.org Crag Law Center 917 SW Oak St.; Suite 417 Portland, OR (503) Attorneys for Petitioner Morteza Aleali Christopher D. Crean, OSB No chris@gov-law.com Beery Elsner & Hammond LLP 1750 SW Harbor Way Suite 380 Portland, OR (503) Attorney for Respondent City of Sherwood (continued on reverse) October 2013

2 Seth J. King, OSB No Perkins Coie LLP 1120 NW Couch 10th Floor Portland, OR (503) x2024 Attorney for Intervenor-Respondent Langer Gramor LL

3 i TABLE OF CONTENTS I. STATEMENT OF THE CASE...1 A. Nature of Action and Relief Sought...1 B. Nature of the Final Order...1 C. Appellate Jurisdiction and Timeliness of Appeal...1 D. LUBA Jurisdiction...1 E. Question Presented...2 F. Summary of Argument...2 G. Statement of Facts...3 II. ASSIGNMENT OF ERROR...5 A. Preservation of Error...5 B. Standard of Review...6 C. Argument Tolling under ORS (3) and Leonard LUBA misinterpreted the tolling provision of ORS (3) Leonard was decided correctly Orenco is distinguishable...16 III. CONCLUSION...20

4 ii TABLE OF AUTHORITIES Cases Berry v. Branner, 245 Or 307, 421 P2d 996 (1966) Bowlin v. Grant County, 35 Or LUBA 776 (1998) Casey Jones Well Drilling, Inc. v. City of Lowell, 34 Or LUBA 263 (1998) Cutsforth v. City of Albany, 48 Or LUBA 304 (2004)... 8, 13 DLCD v. Jackson County, 151 Or App 210, 948 P2d 731 (1997), rev. den., 327 Or 620, 971 P2d 412 (1998) Flowers v. Klamath County, 98 Or App 384, 780 P2d 227 (1989)... 8 Kamp v. Washington County, 51 Or LUBA 670 (2006) Krieger v. Wallowa County, 35 Or LUBA 305 (1998) Jacobsen v. City of Winston, 63 Or LUBA 531 (2011) Johnson v. Jackson County, 59 Or LUBA 94 (2009) League of Women Voters v. Coos County, 82 Or App 673, 729 P2d 588 (1986) Leonard v. Union County, 24 Or LUBA 362 (1992)... passim Mission Bottom Ass n v. Massee, 29 Or LUBA 281 (1995)... 7 Muller v. Polk County, 16 Or LUBA 771 (1988) Northwest Natural Gas Co. v. Oregon Public Utility Com n, 195 Or App 547, 99 P3d 292 (2004) Orenco Neighborhood Ass n v. City of Hillsboro, 135 Or App 428, 899 P2d 720 (1995)... passim PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) Salem Golf Club, Inc. v. City of Salem, 58 Or LUBA 339 (2009)... 9 State v. Gaines, 346 Or 160, 206 P2d 1042 (2009)... 9 Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995)... 14, 20 Wicks-Snodgrass v. City of Reedsport, 148 Or App 217, 939 P2d 625 (1997) Wilhoft v. City of Gold Beach, 38 Or LUBA 375 (2000) Zinker v. City of Bend, 233 Or App 601, 227 P3d 1174 (2010)... 6 Statutes ORS ORS , 14 ORS ORS (1)... 18

5 iii ORS ORS (1) ORS (2) ORS , 9-12 ORS (2)(a)... 4, 15 ORS (2)(d)... 8 ORS (3)... passim ORS (3)(a)... 6 ORS (4)... 15, 18 ORS (5)... 15, 18 ORS (6) ORS (6)(a)... 8 ORS (9)... 6, 10 ORS (9)(a)(B) ORS (1)... 1 ORS (3)(a)... 1 ORS (9)(a)... 6 ORS (11) ORS (10) Rules and Regulations OAR (3)... 12, 18 Local Codes SZDC C

6 1 I. STATEMENT OF THE CASE A. Nature of Action and Relief Sought Petitioner Morteza Aleali seeks review of the Final Order issued by the Land Use Board of Appeals in Morteza Aleali v. City of Sherwood, slip op (LUBA No , Aug. 22, 2013). Mr. Aleali requests that this court reverse and remand LUBA s Order. B. Nature of the Final Order In the Final Order, LUBA granted Respondents motions to dismiss and held that it did not have jurisdiction over Mr. Aleali s appeal in this case. C. Statutory Basis of Jurisdiction This Court has jurisdiction over this appeal of LUBA s Final Order pursuant to ORS (1). D. Effective Date of the Order LUBA s Order was issued on August 22, ER 003. Mr. Aleali s Petition for Judicial Review was filed and served on September 11, LR-1. 1 Mr. Aleali s Petition for Judicial Review was timely filed pursuant to ORS (3)(a). 1 The Excerpt of Record is referred to as ER followed by the page citation. The record from the Land Use Board of Appeals is referred to as LR followed by the page citation. Some documents in the LUBA record are double-sided but only have record numbers on one side. In those instances, the unnumbered pages are referred to with an a e.g. 001a.

7 2 E. Question Presented Did LUBA err in concluding that a local government s failure to provide notice of hearing required by local law does not toll the time to file an appeal to LUBA under ORS (3)? F. Summary of Argument LUBA erred when it overruled Leonard v. Union County, 24 Or LUBA 362 (1992) and held that a local government s failure to provide pre-hearing notice required by local code does not toll the time to file an appeal to the Land Use Board of Appeals pursuant to ORS (3). For more than twenty years, LUBA has interpreted the statutory language without providing a hearing to include those situation where a local government does not provide a legally required notice of hearing. The failure to provide notice of hearing prejudices a citizen s substantial rights by depriving that person of an opportunity to participate in the hearing conducted by the local government and to receive notice of the subsequent decision, which otherwise starts the clock on the 21-day time period for appeal. LUBA overruled Leonard without applying the framework for statutory construction set forth in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). The text and context of the statute support LUBA s original interpretation set forth in Leonard, because a person is just as effectively denied

8 3 his or her right to a hearing when a local government does not provide notice of hearing as required by local code. Leonard, 24 Or LUBA at 374. The rule announced in Leonard ensures, as intended by the legislature, that citizens have a remedy when their substantial rights have been abridged by procedural irregularities made by a local government. In the opinion below, however, LUBA ignored the text of the statute and more relevant context and instead overruled Leonard based upon general statements of legislative policy in ORS LUBA also erred in relying upon this court s decision in Orenco Neighborhood Ass n v. City of Hillsboro, 135 Or App 428, 899 P2d 720 (1995). In Orenco, the court explicitly refused to overrule Leonard and instead simply declined to extend the tolling rule to post-acknowledgment plan amendments because of the unique state law provisions regarding finality that apply in those limited circumstances. There are no analogous statutory provisions governing land use decisions, and the reasoning of the Orenco case therefore does not apply to this situation. G. Statement of Facts Mr. Aleali appealed a November 9, 2012 decision by Respondent City of Sherwood approving, with conditions, a site plan review and conditional use permit for approximately 190,000 square feet of commercial development. ER-1. The properties to the west of the subject property are developed with single-family

9 4 homes, which is where Mr. Aleali lives. ER-2. The project includes an extension of SW Century Drive and an extension of SW Langer Farms Parkway between SW Tualatin-Sherwood Road and 99W along with the installation of a new traffic signal and other improvements along SW Tualatin-Sherwood Road. ER-1-2. The project is estimated to generate at least 8,070 average daily trips. ER-6. The City considered the matter over the course of three hearings starting on September 23, ER-1. The City received comments from only three individuals, all by electronic mail. ER-3. Mr. Aleali filed his notice of intent to appeal on June 18, LR-169. Respondent filed a motion to dismiss on June 28, 2013 asserting that Mr. Aleali s appeal was untimely and therefore LUBA lacked jurisdiction under ORS (2)(a) and (3). LR-154. Intervenor-Respondent filed a second motion to dismiss on July 11, 2013 making similar arguments. LR-128. Mr. Aleali responded to the motions to dismiss on July 25, LR Under the Sherwood Zoning and Development Code (SZDC) C.1, the City was required to provide notice of hearing to owners of record of all real property within one thousand (1,000) feet from the property subject to the land use action. Appx In his response, Mr. Aleali swore by affidavit that he lived 2 Mr. Aleali s original counsel withdrew on June 26, LR-164. LUBA granted a brief extension of time to respond to the motions to dismiss after his new counsel filed a notice of appearance. LR-115.

10 5 within 1,000 feet of the property subject to the land use decision, that he did not receive written notice from the City of the hearing, and that he filed his Notice of Intent to Appeal within 21 days of learning of the decision via an article published in the Oregonian on May 29, ER-8-9. Mr. Aleali asserted that the City failed to provide notice of hearing as required by local law, LR-46-47, and his sworn statement was corroborated by affidavits from thirty-three other citizens who also lived within 1,000 feet of the property and swore under oath that they too never received notice of the hearing from the City. LR LUBA issued its decision on August 22, ER-10. LUBA assumed without deciding that the City did not provide to Mr. Aleali notice of hearing as required by the SZDC. ER-12. Although no party asked LUBA to reconsider Leonard, LUBA overruled its earlier decision without the benefit of any briefing on the issue. ER-15. II. ASSIGNMENT OF ERROR LUBA Erred in Holding that a Local Government s Failure to Provide a Notice of Hearing Required by Local Code Does Not Toll the Time Period to File a An Appeal under ORS (3). A. Preservation of Error In his response to the motions to dismiss, Mr. Aleali argued that the City s failure to provide notice of hearing tolled the statutory timeline for filing an appeal to LUBA pursuant to ORS (3) and Leonard.

11 6 Because the City of Sherwood did not provide Mr. Aleali with the notice of hearing as required by local law, he was deprived of an opportunity to participate in the hearing and to submit his comments and concerns to the City on the potential impacts of the proposed development on traffic congestion and other factors affecting his community. The time for filing the Notice of Intent to Appeal was therefore tolled until Mr. Aleali had actual notice of the decision. ORS (3)(a); Leonard, 24 Or LUBA at 373. ER 050. The assignment of error has therefore been preserved. B. Standard of Review In reviewing the final order of LUBA, the Court of Appeals shall reverse or remand if LUBA s order is unlawful in substance. ORS (9)(a); Zinker v. City of Bend, 233 Or App 601, 603, 227 P3d 1174 (2010). C. Argument 1. Tolling under ORS (3) and Leonard ORS (9) provides that an appeal of a land use decision shall be filed within 21 days of the final decision. In addition, the legislature included a tolling provision allowing for an appeal to be filed later in time if the local government makes a land use decision without providing a hearing * * *. ORS (3). In those situations, the time to file an appeal begins to run when a person adversely affected by the decision either received actual notice of the decision or knew or should have known of the decision, depending on the circumstance. 3 Id. 3 In this case, there was no debate that Mr. Aleali s appeal was timely if the tolling rule in ORS (3) applied.

12 7 In 1992, LUBA issued a definitive interpretation of ORS (3) that has governed operation of the tolling provision for the last twenty years until the underlying decision in this case. Leonard, 24 Or LUBA at 362. In Leonard, LUBA interpreted the statutory language without providing a hearing to include situations in which the local government: (1) fails to provide a hearing at all; or (2) fails to give a person the individual notice of hearing he or she was entitled to receive under state or local law, thus denying that person the ability to learn about and attend the hearing. Id. at (emphasis added). LUBA recognized in Leonard that a person is just as effectively denied his or her right to a hearing in both circumstances. Id. at 374. The failure to provide prehearing notice is a procedural error that prejudices a citizen s substantial right by depriving that person of an opportunity to participate in the decisionmaking process. See, e.g., Mission Bottom Ass n v. Massee, 29 Or LUBA 281, 299 (1995) (holding that a local government s failure to provide notice that it was considering a floodplain application prejudiced petitioners substantive rights); Casey Jones Well Drilling, Inc. v. City of Lowell, 34 Or LUBA 263, 282 (1998) (holding that a

13 8 city s failure to provide prehearing notice required by local code regarding land use regulation amendment violated petitioner s substantive rights). 4 The tolling provision thus ensures that adversely affected persons have a legal remedy for these types of procedural violations. Cf. Flowers v. Klamath County, 98 Or App 384, 388, 780 P2d 227 (1989) (preventing a local municipality from relying on its own failure to provide notice and a hearing to defeat petitioners ability to achieve standing to challenge the failure to provide them ); see also Leonard, 24 Or LUBA at The rule announced in Leonard protects the substantial rights of a person who does not receive notice of hearing, does not attend the hearing, and therefore does not receive notice of the decision along with the applicable appeal timelines. Cutsforth v. City of Albany, 48 Or LUBA 304, 315 (2004). This is precisely what happened to Mr. Aleali here. The legislature also provided for a statute of ultimate repose. The appeal period cannot be tolled indefinitely. Instead, the time to file an appeal [m]ay not exceed three years after the date of the decision * * *. ORS (6)(a). The [f]ailure to provide notices required * * * by local code [is subject to] the threeyear statute of ultimate repose. Kamp v. Washington County, 51 Or LUBA 670, 4 LUBA shall reverse or remand a decision if the local government committed a procedural error which prejudiced the substantial rights of the petitioner. ORS (2)(d).

14 9 678 (2006); see also Salem Golf Club, Inc. v. City of Salem, 58 Or LUBA 339, 341 (2009). 2. LUBA misinterpreted the tolling provision of ORS (3). LUBA erred in this case, because its holding is inconsistent with the principles of statutory construction set forth in PGE v. BOLI, 317 Or at 606. The task here is to discern the intent of the legislature. Id. at 610; ORS The familiar framework of analysis focuses first on the text and context of the statute. Id. at ; State v. Gaines, 346 Or 160, , 206 P2d 1042 (2009). Here, LUBA erred by not applying the appropriate framework for statutory interpretation. ER In its opinion, LUBA concluded that the tolling provisions in ORS (3) do not protect citizens for violations of local prehearing notice requirements but rather apply only to violations of state pre-hearing notice requirements. ER-15. In reaching this conclusion, LUBA did not discuss or apply the framework for statutory analysis laid out in PGE v. BOLI nor did it set forth any basis for this distinction in the text of the statute. LUBA instead relied principally on legislative policy expressed in ORS ( Policy ) that time is of the essence in reaching final decisions and that those decisions be made consistent with sound principles governing judicial review. That legislative policy is a sufficient basis for concluding that a city s failure to provide a notice of hearing that is required only by [local]

15 10 law will not operate under ORS (3) to toll the period set out in the first sentence of ORS (9). To the extent our decision in Leonard holds to the contrary, it is overruled. ER-15. The statement of policy in ORS , however, does not in any way relate to the distinction drawn by LUBA here namely that people entitled to notice of hearing under local laws are due fewer protections than those entitled to notice of hearing under state law. The text of ORS is general in nature and does not speak to the issue of state as opposed to local pre-hearing notice requirements. LUBA did not explain why or how this general policy statement informs an interpretation of ORS (3) or justifies its decision to overrule Leonard. This court has repeatedly cautioned against this type of analysis. Statutes and rules often contain statements of general policy * * *. Such expressions can serve as contextual guides to the meaning of particular provisions of the statutes or rules, as much as any other parts of the enactments can. At the same time, the use of expressions of policy as context is subject to the same limitations as any other proffered type of context: they are instructive only insofar as they have a genuine bearing on the meaning of the provision that is being construed. Moreover, when legislative or administrative expressions of policy are offered as context, courts must be cautious not to make policy in the guise of interpretation, or to allow agencies or other parties to achieve through a court s interpretation policy objectives that the enactment as promulgated was not meant to or failed to embody.

16 11 DLCD v. Jackson County, 151 Or App 210, 218, 948 P2d 731 (1997) (emphasis in original), rev. den., 327 Or 620, 971 P2d 412 (1998); see also Northwest Natural Gas Co. v. Oregon Public Utility Com n, 195 Or App 547, 556, 99 P3d 292 (2004). LUBA erred in relying on this general policy statement, because ORS just as readily supports the opposite outcome in this case. LUBA could have cited to ORS to uphold its original decision in Leonard and to find that citizens should not have their rights to judicial review cut off before they have been provided notice of a hearing and final decision that affects their substantial interests in their private property and community. Once a local municipality commits through local law to provide certain notices to its citizens, sound principles of judicial review weigh strongly in favor of ensuring that these legal rights are protected and that citizens have a remedy for violations thereof. See, e.g., Wilhoft v. City of Gold Beach, 38 Or LUBA 375, 390 n 15 (2000) (explaining that ORS (3) and reflect a balance grounded in the same policies that protect injured plaintiffs from having a cause of action extinguished before he or she could have known of the wrong) (citing Berry v. Branner, 245 Or 307, , 421 P2d 996 (1966)). Moreover, the tolling provision in ORS (3) does not affect when a land use decision is deemed to be final - it only extends the time for filing an appeal to the Land Use Board of Appeals. For purposes of LUBA s jurisdiction, a

17 12 decision is final when it is signed by the local decision maker or when it is deemed to be final by local code. OAR (3). Local governments therefore have discretion under state law to determine when and how their land use decisions are deemed to be final. In contrast, as this court discussed in Orenco, 135 Or App at 428, and as will be discussed below, the filing of an appeal does affect when a post-acknowledgement plan amendment is deemed to be final based on the unique and detailed state statutes that apply to those decisions. ORS , therefore, does not have a genuine bearing on the meaning of the provision at issue here. DLCD v. Jackson County, 151 Or App at Leonard was decided correctly. The holding and statutory interpretation set forth in Leonard are still valid and should be upheld and reinforced by this court. LUBA did not identify anything in the text or context of the statute that warrants reversal of that original decision with respect to local pre-hearing notice requirements. Nor did LUBA explain why the statutory interpretation it set forth in Leonard is incorrect. The decision was issued more than twenty years ago, and the legislature has never indicated that LUBA s original interpretation was incorrect or that the practical results of that decision undermine legislative policies regarding orderly appeal and judicial review of land use decisions. It should be the legislature and not LUBA that decides upon a change in policy.

18 13 As LUBA set forth in 1992, the language of ORS (3) is subject to more than one interpretation. Leonard, 24 Or LUBA at 374. [T]he words without providing a hearing can be construed also to encompass circumstances where, although a hearing may have been held, one or more persons effectively were not provided a hearing due to the local government s failure to provide them notice of the hearing to which they were entitled. Id. In those circumstances, a person adversely affected by a land use decision is not given an opportunity to participate in the proceedings conducted by the local government, and, as occurred here, that person does not receive notice of the final decision. Cutsforth, 48 Or LUBA at 315. The failure to provide notice of hearing therefore prejudices the substantial rights of affected individuals to participate before the local government, to appeal that decision to LUBA and to seek judicial review. See ORS (9)(a)(B); Johnson v. Jackson County, 59 Or LUBA 94, (2009) (where local government fails to provide notice and an opportunity for a hearing, and those failures prejudice a party s substantial rights, including the right to participate in the decision, those failures constitute a procedural error that provides a basis for remand) (citing Krieger v. Wallowa County, 35 Or LUBA 305, 308 (1998), and Muller v. Polk County, 16 Or LUBA 771, 775 (1988)). Leonard is also correct in the sense that it does not draw a distinction between pre-hearing notice requirements imposed by state law as opposed to local law. The notice provision at issue in Leonard was a creature of local law.

19 14 Leonard, 24 Or LUBA at The text of ORS (3) does not distinguish between state and local requirements, and LUBA therefore held that the tolling provisions apply when a local government fails to provide notice under applicable provisions of state or local law. Leonard, 24 Or LUBA at 375. The court is not to insert what has been omitted * * *, ORS , and there is nothing in the statute itself suggesting that Leonard was wrongly decided. This court has previously analyzed the text of ORS (3). Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995). In Tarjoto, the court held that the legislature s intent behind the statute is to provide adequate procedures to prevent cases from slipping through the jurisdictional cracks. Id. at 310. And the court also noted LUBA s earlier interpretation that ORS (3) applies where a local government fails to provide a required pre-hearing notice of a hearing. Id. at 309. Leonard is therefore consistent with this court s determination of the legislative intent of ORS (3). The statutory tolling provision ensures that local governments cannot cut off rights to appeal and judicial review by making procedural errors, inadvertent or otherwise. The context of the statute also supports LUBA s original interpretation in Leonard. The 21-day period is far from inviolate. The legislature has implemented other tolling provisions, which cover a broad range of decisions made by local governments for the purpose of protecting the rights of individuals to seek

20 15 review from LUBA. A tolling rule also applies to decisions made without hearing pursuant to statutory authority for doing so in ORS (11) and (10)(c). ORS (4). And a tolling rule also applies to limited land use decisions. ORS (5). The legislature has therefore implemented jurisdictional rules for LUBA that protect individuals from certain procedural defects and irregularities. This is a delicate balance, but the text and context of the statute demonstrate that the legislature struck that balance by imposing a fairly rigorous 21-day deadline for those seeking to appeal decisions while also creating a series of exceptions that apply in situations where local governments run afoul of important procedural requirements. Nothing in the text or context of ORS (3) suggests that people like Mr. Aleali who are entitled to notice of hearing under local law are due any fewer protections under the state statutes governing LUBA s jurisdiction than other individuals. The exhaustion requirements of ORS (2)(a) also support the holding in Leonard. LUBA s jurisdiction is limited to those cases in which the petitioner has exhausted all remedies available by right before petitioning the board for review * * *. ORS (2)(a). Exhaustion of any available local remedies is a mandatory prerequisite for LUBA s jurisdiction to review a land use decision. Jacobsen v. City of Winston, 63 Or LUBA 531, 535 (2011) (emphasis

21 16 added). If citizens fail to comply with local code requirements, they lose their right to appeal. Conversely, if local governments fail to comply with local code requirements, citizens should have a remedy for those violations. LUBA s jurisdictional provisions do not distinguish generally between state and local requirements. Instead, state law allows local governments to implement their own appeal procedures, which then dictate when particular land use decisions are deemed to be final and subject to appeal. Finally, the statute of ultimate repose provides additional context that supports the holding in Leonard. The policy concern relied upon by LUBA in overruling Leonard the possibility of late appeals has already been addressed by the legislature. ORS (6). 4. Orenco is distinguishable. In its opinion below, LUBA relied primarily on Orenco, 135 Or App at 428, but the opinion in that case is grounded firmly in statutory context provided by the unique and detailed provisions of state law governing post-acknowledgement plan amendments. This court was asked in Orenco to overrule Leonard as a general matter and refused to do so. Id. at 431. The court instead declined to extend the holding in Leonard to post-acknowledgment amendments, which are not at issue in this case.

22 17 In Orenco, the petitioners sought to challenge an ordinance amending a city zoning ordinance. Id. at 430. The petitioners argued that they were entitled to prehearing notice under the city s code provisions and attempted to rely on the tolling rule announced in Leonard. Id. The local government in Orenco first argued that Leonard was decided incorrectly and should be overruled by the Court of Appeals as a general matter. Id. at 431. The Court of Appeals declined to overrule Leonard and instead limited its holding to the time period for appealing a post-acknowledgement amendment to a land use regulation * * *. Id. In declining to extend Leonard, this court grounded its analysis in the specific statutory procedures applicable to postacknowledgment plan amendments set forth in ORS to ORS Id. at 432. Id. Under ORS (1), the new or amended local legislation shall be considered acknowledged, if, inter alia, no notice of intent to appeal is filed within the 21-day period set out in ORS (8). Conversely, if an appeal is taken within that time, the amendment or new legislation is not deemed acknowledged until the time that a LUBA or judicial decision affirming it becomes final. ORS (1), (2). The unique statutory context at issue in Orenco provided a textual basis to limit the holding in Leonard not to overrule it altogether. LUBA determined that state statutes dictate when a plan amendment is final and deemed to be

23 18 acknowledged, which has important ramifications for subsequent plan implementation. Id. This court held that a tolling rule would therefore conflict with the roles that the post-acknowledgment statutes assign to the appeal process and to the finality of acknowledgements. Id. A post-acknowledgement plan amendment is a legislative or quasilegislative process, governed by state statutes and requiring oversight by the state Department of Land Conservation and Development. ORS (1). Once a plan amendment is deemed acknowledged, it becomes part of the comprehensive plan and land use governance framework. In contrast, with respect to land use decisions and limited land use decisions, there is no question that the legislature intended for a tolling rule to apply as a general matter. ORS (3)-(5). Unlike a post-acknowledgement plan amendment, which is legislative in nature and guides land use decision making generally, a quasi-judicial land use decision applies the zoning laws to a specific factual situation, and does not result in adoption of principles of broader application. The appeal process does not affect whether or when a specific land use or limited land use decision is deemed to be final. OAR (3). LUBA s jurisdictional rules explicitly grant to local governments the discretion to determine local appeal procedures and to declare when their decision are final and subject to appeal. Id. Those final decisions govern only the specific application

24 19 for development, and do not set policy or guidance for land use decisions generally. The rationale in Orenco therefore does not apply here, because the tolling rule announced in Leonard does not conflict with any other procedural requirements of state law. 5 Indeed, despite the fact that Leonard was issued over twenty years ago, there is no suggestion that the results in that case have undermined operation of any other state law provisions regarding finality of land use decisions or appeal. During that time, citizens have come to expect that notice requirements issued by local code are enforceable and that they will receive notice of decisions affecting their interests if the local government has committed to doing so by local law. 5 LUBA also relied on Wicks-Snodgrass v. City of Reedsport, 148 Or App 217, 224, 939 P2d 625 (1997). ER 012. LUBA itself, however, rejected this same argument in Bowlin v. Grant County, 35 Or LUBA 776 (1998). Next, the county argues that the tolling principle in ORS (3) is no longer valid after the Court of Appeals opinion in Wicks- Snodgrass v. City of Reedsport, 148 Or App 217, 939 P2d 625, rev den 326 Or 59 (1997). In Wicks-Snodgrass, the court overruled a judicial principle of tolling stated in League of Women Voters v. Coos County, 82 Or App 673, 729 P2d 588 (1986), to the extent that principle conflicted with the express requirements of ORS (8). However, the county s argument fails to recognize that the tolling principle in ORS (3) is an express part of that statute, not a judicial doctrine in direct conflict with statutory requirements. By its terms, ORS (3) operates as an exception to the filing deadline in OR (8). The Court of Appeals reasoning in Wicks- Snodgrass is not applicable to ORS (3). Bowlin, 35 Or LUBA at 783 (emphasis added).

25 20 The decision below, however, now creates a significant gap whereby cases like Mr. Aleali s may slip through the jurisdictional cracks. Tarjoto, 137 Or App at 311. This gap threatens to upset the delicate balance struck by the legislature. The 21-day appeal period is rigorous, and local citizens bear a substantial burden in being vigilant to protect their substantial interests in their private property and their community. If local governments can promise notice of hearing and then fail to deliver on that promise without recourse, affected citizens will lose their right to appeal and judicial review due to no fault of their own. LUBA s decision to overrule Leonard conflicts directly with the intent of the legislature in adopting ORS (3), and this policy change should be initiated, vetted and ultimately implemented by the legislature if deemed to be appropriate and necessary. III. CONCLUSION For the reasons set forth above, Petitioner Morteza Aleali respectfully requests that the Court of Appeals reverse the Final Order and remand the case to the Land Use Board of Appeals. // // // // //

26 21 DATED this 2 nd day of October, CRAG LAW CENTER /s/ Christopher Winter Christopher Winter, OSB No chris@crag.org Courtney Johnson, OSB No courtney@crag.org (503) Attorneys for Petitioner Morteza Aleali

27 22 CERTIFICATE OF COMPLIANCE I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word count of this brief (as described in ORAP 5.05(2)(a)) is 4,840 words. 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). /s/ Christopher Winter Christopher Winter Crag Law Center Of Attorneys for Petitioner

28 23 CERTIFICATE OF FILING & SERVICE I certify that on October 2, 2013, I filed the forgoing with the Court of Appeals using the e-filing System and I served two copies of this Petitioner s Opening Brief and Excerpt of Record, by first class U.S. mail, on: Seth J. King sking@perkinscoie.com Perkins Coie LLP 1120 NW Couch 10 th Flr Portland, OR /s/ Christopher Winter Christopher Winter Crag Law Center Of Attorneys for Petitioner