Century 21 Properties, Inc. v. City of Tigard
Century 21 Properties, Inc. v. City of Tigard
Opinion of the Court
Petitioner seeks review of LUBA’s affirmance of the Tigard city council’s approval of an application to develop an apartment complex on property adjacent to petitioner’s. Acting on its own motion pursuant to section 18.32.310(b)(2) of city’s community development code, the council took review of the planning commission’s earlier approval decision and added as a condition of approval that the applicant dedicate a right of way for street purposes along the boundary between the applicant’s and petitioner’s properties.
Section 18.32.310(b)(2) of the development code provides that review of a planning commission decision may be initiated, inter alia, if the council,
“on its own motion, seeks review by voice vote within ten days of mailed notice of the final decision.”
Section 18.32.270 provides that notice of planning commission decisions “shall be mailed to the applicant, to all the parties to the decision and shall be made available to the members of the council.” The council did not initiate review within ten days of the mailing of notice to the participants, but purported to do so at a later meeting held less than ten days after the council members received an agenda that referred to the planning commission’s action.
City argues, and LUBA concluded, that the ten-day period under section 18.32.310(b) (2) does not start to run until
City and LUBA reasoned that the two sections fit together logically only if the “availability” of notice to the council members is the event from which the council’s initiation of review is timed. However, there is nothing ambiguous in the two sections to leave room for that interpretation. There is also nothing illogical in a literal reading of the sections. They appear to contemplate that an informal mode of notice to the council members is sufficient to assure that they will be apprised but that the council’s time for initiating review should coincide with the ten-day period, dating from the sending of notice, within which private parties may appeal a commission decision to the council under section 18.32.310(b)(1).
City relies on League of Women Voters v. Coos County, 82 Or App 673, 729 P2d 588 (1986), and argues that a “party’s appeal clock cannot begin until the party has received proper notice.” That reliance does not succeed, because the council is not a party. We said in League of Women Voters:
“[T]he variety and informality of local recordkeeping procedures give the decisionmaking bodies and their agents the familiarity that the parties who appear before them do not have with where the information resides in their courthouses and city halls. Although we suggest no evil motivation in this or in the generality of cases, the relationship between parties who seek to appeal a county’s land use decision and officials of the county is hardly the same as the relationship between the clerk and the parties to a civil action. In the land use context, the county is the deciding body as well as the recordkeeper.” 82 Or App at 679.
No comparable remoteness from or presumption of unfamiliarity with city’s decisions is true of the city council.
City argues, for a number of reasons, that the council’s and LUBA’s decisions should nevertheless be affirmed. It first contends that the applicant brought a timely appeal to the council from the commission’s decision and that the council could have taken the same action in that context as it did on its own motion.
City’s next argument, somewhat at odds with its first, is that the notice to the parties of the planning commission’s decision was defective and that the ten-day period for initiating review was therefore tolled. The defect identified by city is:
“The notice incorrectly referenced CDC 18.230.290(A) as the appropriate appeal provision and informed the parties that an appeal to the city council must be filed by February 21,1989. The correct reference should have been to CDC 18.32.290(b), which provides that a planning commission decision made on appeal from a director’s decision can only be heard by the city council if the council itself calls it up for review.”
That defect, if it was one, can have no bearing on jurisdictional matters. We said in League of Women Voters v. Coos County, supra, that
“the time for appeal by a party who has been given notice is not tolled by the fact that notice has not been given to other parties who are entitled to it.” 82 Or App at 681.
Here, notice was sent to the parties entitled to it. The only defect that city ascribes to the notice is that it misinformed the parties that they could appeal, when in fact review could
City next contends that petitioner’s taking claim is not “ripe,” because the right-of-way condition on the development of the adjacent parcel cannot affect petitioner’s property unless certain future events occur. See n 1, supra. City also contends that the controversy is moot, because the applicant has already deeded the right-of-way to city and, therefore, “[n]o practical effect would result by reversing the city council’s decision and replacing it with the planning commission’s.” City apparently understands that the asserted ripeness and mootness problems affect the reviewability of the entire controversy. They do not. Petitioner appealed to LUBA from the council’s land use decision approving an application for an apartment complex.
Reversed and remanded.
The city planning director had imposed that condition. On the applicant’s appeal, the planning commission concluded that the applicant could satisfy the roadway requirement by a private driveway rather than a dedicated street. Petitioner contends that, under the code, the condition of a public street will require that it dedicate land to widen the roadway in the event that it develops an apartment complex on its property.
City argues that the ordinance, as we construe it, would create unworkable obstacles in the process of providing notice to the lay members of the council. However, the meaning of the ordinance is clear, and city is, of course, free to amend it.
The council refunded the appeal fee to the applicant when it decided to conduct review on its own motion, but the appeal has not been formally terminated.
Technically, there were applications for and approvals of site development, a minor land partition and a variance.
We reject without discussion city’s argument that the error was a mere failure to follow local procedures and that petitioner alleged no prejudice to its substantial rights. See ORS 197.835(8)(a)(B).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.