385 P.3d 1262
Or. Ct. App.2016Background
- Petitioners own rural property in Jackson County and obtained a 1975 declaratory judgment authorizing various nonconforming resort uses; a 1987 stipulated amendment (First Stipulation) set an expiration date for further development rights (Jan 1, 2007).
- In 2013 the county and petitioners executed a second stipulation (Second Stipulation) and the circuit court entered an amended judgment (Second Stipulated Amended Judgment) that "revived" development rights and expanded permitted accommodations.
- Respondents (Rogue Advocates and individuals) learned of a proposed large resort on petitioners’ land via a website in November 2015, engaged counsel (Sherlock), and appealed the Second Stipulation to LUBA on Dec. 7, 2015; they also later appealed a 2013 commissioners’ order.
- Petitioners moved to dismiss the LUBA appeals as untimely under ORS 197.830(3)(b) (21-day appeal period from date appellant "knew or should have known"). Respondents submitted Sherlock’s declaration and billing records to show the date of knowledge.
- LUBA found the appeal of the Second Stipulation timely, inferring respondents lacked actual knowledge until their attorney discovered the stipulation on Nov. 16, 2015, and that counsel’s prompt inquiry tolled the 21-day period under LUBA’s Rogers decision.
- The Oregon Supreme Court reviewed LUBA’s timeliness finding for substantial evidence/reason and reversed: the record lacked evidence on when respondents first had inquiry notice or when they contacted counsel, so LUBA’s inferences were unsupported; LUBA must dismiss the appeal unless it allows further evidence.
Issues
| Issue | Petitioners' Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether respondents’ LUBA appeal of the county’s decision (Second Stipulation) was timely under ORS 197.830(3)(b) | Appeal untimely: respondents knew or were on inquiry notice more than 21 days before filing; LUBA lacks jurisdiction if untimely | Timely: respondents did not have actual knowledge until counsel discovered the stipulation (Nov 16, 2015); counsel’s prompt inquiry tolled the 21-day period | Reversed LUBA: finding of timeliness not supported by substantial evidence or substantial reason; remand to dismiss unless additional evidence is allowed |
| Whether LUBA could infer respondents’ actual knowledge from timing of counsel retention | Inferential finding appropriate: hiring counsel to "discover" the decision indicates lack of prior knowledge | Hiring counsel is inconclusive; no evidence that respondents lacked knowledge before counsel’s discovery | Court held inference speculative and unsupported by record |
| Whether an earlier inquiry-notice tolling finding (per Rogers) was supported | Tolling applies because counsel made reasonable efforts once engaged | Respondents lacked proof when inquiry notice arose or when they engaged counsel relative to that date | Court held LUBA failed to make findings on when inquiry notice occurred or how promptly counsel was engaged; conclusion not supported |
| Whether LUBA properly treated the county’s stipulation as the challenged land use decision | Petitioners: LUBA mischaracterized appeal as county decision when it was circuit court judgment | Respondents: appeal referenced the county decision embodied in the stipulation | Court rejected petitioners’ argument; notice sufficiently identified the county decision |
Key Cases Cited
- Wicks-Snodgrass v. City of Reedsport, 148 Or App 217 (timeliness under ORS 197.830 is jurisdictional)
- Younger v. City of Portland, 305 Or 346 (definition of substantial evidence review for agency findings)
- Billington v. Polk County, 299 Or 471 (burden on party invoking LUBA to prove timeliness/jurisdiction)
- Jenkins v. Board of Parole, 356 Or 186 (substantial reason requirement: agency must explain linkage between facts and result)