Jacobus v. Klamath County ( 2023 )

No. 661 December 20, 2023 557
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Peggy Sue JACOBUS,
Judy Dahl, Ann Felber,
and Kurt Knabke,
Petitioners,
v.
KLAMATH COUNTY
and City of Chiloquin,
Respondents.
Land Use Board of Appeals
2023058; A182303
Argued and submitted November 8, 2023.
Charles W. Woodward, IV, argued the cause and filed the
brief for petitioners.
Leah Samelson argued the cause for respondent City of
Chiloquin. Also on the brief were Mark S. Bartholomew and
Homecker Cowling, LLP.
No appearance for respondent Klamath County.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
558 Jacobus v. Klamath County
ORTEGA, P. J.
Petitioners seek judicial review of an order of the
Land Use Board of Appeals (LUBA) that dismissed petition-
ers’ appeal to LUBA. We affirm.
On July 18, 2023, petitioners filed with LUBA a
notice of intent to appeal (NITA) a land use decision made by
the Klamath County Board of Commissioners (the county). In
the NITA, petitioners listed the legal counsel of the county as
“County Counsel.” On July 21, the day after LUBA received
the NITA, LUBA issued an order explaining that petition-
ers had failed to list the name of the county’s legal coun-
sel in the NITA, as required by OAR 661-010-0015(3)(f)(B).1
LUBA directed petitioners to file a corrected NITA and serve
that corrected NITA on all persons entitled to be served
under OAR 661-010-0015(2) within seven days of the order.
The order further provided that, “[i]f a corrected NITA is not
filed and served within seven days of the date of this order,
[LUBA] will dismiss the appeal,” and cited Wendt v. City
of Klamath Falls, 81 Or LUBA 266, aff’d, 304 Or App 874(2020). More than a month later, on August 25, LUBA issued
its final order dismissing the appeal, because the deadline
to file and serve a corrected NITA had passed, citing Green
v. Linn County, ___ Or LUBA ___ (LUBA No 2021-068,
Nov 9, 2021), Wendt, and Bruce v. City of Hillsboro, 32 Or
LUBA 382 (1997), aff’d on other grounds, 159 Or App 495,
977 P2d 435 (1999).
Petitioners seek judicial review of that order.2 We
may reverse or remand LUBA’s order only if we conclude that
it is “unlawful in substance or procedure.” ORS 197.850(9)(a).
1
OAR 661-010-0015(3)(f)(B) provides:
“(3) Contents of Notice: The Notice shall be substantially in the form set
forth in Exhibit 1 and shall contain:
“* * * * *
“(f) The name, address and telephone number of each of the following:
“* * * * *
“(B) The governing body and the governing body’s legal counsel[.]”
2
We note that petitioners have included documents with their opening brief
that were not made part of the record on judicial review. We do not consider those
extra-record documents. See ORS 197.850(8) (“Judicial review of an order issued
under ORS 197.830 to 197.845 must be confined to the record. The court may not
substitute its judgment for that of the board as to any issue of fact.”).
Cite as 329 Or App 557 (2023) 559
Petitioners first argue that LUBA’s order is unlawful
in substance because LUBA misinterpreted OAR 661-010-
0015(3)(f)(B) to require petitioners to list a specific attorney.
We reject petitioners’ argument because LUBA’s interpreta-
tions is plausible and not inconsistent with the text or context
of the rule or any other source of law. Maguire v. Clackamas
County, 250 Or App 146, 162, 279 P3d 314 (2012) (“LUBA is enti-
tled to deference in the interpretation of its own administra-
tive rule if its interpretation is plausible and not inconsistent
with the rule, the rule’s context, or any other source of law.”).
The legislature has directed LUBA to adopt rules prescribing
the “form and manner” in which a NITA shall be served and
filed. ORS 197.830(9) (“The notice shall be served and filed in
the form and manner prescribed by rule of the board[.]”). As
relevant here, those rules include OAR 661-010-0015(3)(f)(B),
which provides that a NITA must include the “name” of
the governing body’s legal counsel; OAR 661-010-0015(2),
which requires service of the NITA on “the governing
body, the governing body’s legal counsel, and all persons
identified in the [NITA] as required by subsection (3)(f)
of this rule”; and OAR 661-010-0015(3)(i), which requires
proof of service “upon all persons required to be named in
the [NITA].” Given that text and context, it is a plausible
interpretation of OAR 661-010-0015(3)(f)(B) that petitioners
were required to identify the name of the county’s legal coun-
sel, serve that person with the NITA, and serve a NITA that
contains the name of that legal counsel on all other required
persons. Petitioners have not identified anything in the text
or context of the rule or any other source of law that is incon-
sistent with LUBA’s interpretation.
Petitioners next argue that LUBA could not dismiss
the appeal because, under LUBA’s rules, a technical error is
not a basis for dismissal unless there was demonstrated prej-
udice to a party’s substantial rights. See OAR 661-010-0005
(“Technical violations not affecting the substantial rights
of parties shall not interfere with the review of a land use
decision or limited land use decision.”). Petitioners argue
that failing to include the name of a specific county counsel
is a technical error, and that there was no prejudice to the
county, because the county and the county counsel’s office
were served with the NITA.
560 Jacobus v. Klamath County
We also reject that argument. Important to our
decision is that the basis for LUBA’s dismissal of the appeal
was petitioners’ failure to respond to LUBA’s order requir-
ing petitioners to file and serve a corrected NITA. As demon-
strated by LUBA’s reliance on its cited decisions in the two
orders, petitioners’ failure to file and serve a corrected NITA
when ordered to do so was not viewed by LUBA as a techni-
cal violation but as a jurisdictional defect in service on all
required persons.3 With that frame of the issue, petitioners’
argument loses its persuasive force. Petitioners have not
explained why it is legal error for LUBA to conclude that
petitioners’ failure to comply with its order is not a “techni-
cal violation” under OAR 661-010-0005, or why the failure to
serve the NITA on all required persons—including a named
county counsel—is not an issue of jurisdiction, as LUBA has
consistently viewed it. We are required to defer to LUBA’s
plausible interpretations of its own rules, and it is plausible
and not inconsistent with the text or context of the rule or
any other source of law that petitioners’ failure to correct
and serve the NITA as ordered was not a technical violation
under OAR 661-010-0005.
Finally, petitioners argue that LUBA violated their
procedural due process rights by using first-class mail to
serve the order requiring petitioners to file a corrected
NITA. Petitioners argue that, particularly given the short
timeframe for a response to the order, LUBA was required
to provide notice by email. We summarily reject that
3
See Green, ___ Or LUBA at ___ (LUBA No 2021-068, Nov 9, 2021) (slip op
at 4) (granting intervenor’s motion to dismiss because petitioner failed to serve
a copy of the original and amended NITAs on intervenor; stating that “LUBA
will dismiss an appeal if, after being provided by LUBA with the opportunity
to serve all parties entitled to NITA service, petitioners continue to fail to serve
all parties entitled to NITA service”); Wendt, 81 Or LUBA at 268 (dismissing
appeal after petitioner failed to correct and properly serve the NITA after being
ordered by LUBA to do so or the appeal would be dismissed; explaining that
failure to serve the NITA on all persons as required by OAR 661-010-0015(2) is
jurisdictional); Bruce, 32 Or LUBA at 386-87 (granting city’s motion to dismiss;
concluding it lacked jurisdiction because of petitioner’s failure to serve parties
other than the city, as required by OAR 661-010-0015(2), after being ordered to
do so; explaining that late service is a technical violation while failure to serve is
jurisdictional). See also Towey v. City of Hood River, 321 Or App 414, 424, 516 P3d
738 (2022) (holding that, based on the instruction from the legislature to LUBA
to adopt rules governing its proceedings, “[i]t follows that LUBA would have the
implied power to establish consequences for a party who did not follow the dead-
lines and procedures it had implemented”).
Cite as 329 Or App 557 (2023) 561
argument, because LUBA’s use of first-class mail was con-
stitutionally sufficient. See, e.g., Mullane v. Central Hanover
Bank & Tr. Co., 339 US 306, 314, 70 S Ct 652, 94 L Ed 865(1950) (due process requires that interested parties receive
“notice reasonably calculated, under all circumstances, to
apprise parties of the pendency of the action and afford
them an opportunity to present their objections”).
Affirmed.