Breivogel v. Washington County
Breivogel v. Washington County
Opinion of the Court
On June 7, 1991, a Washington County hearings officer approved petitioner Kite/Cupp Legend Golf Development Company’s (petitioner) application to install a golf course on a 345-acre parcel in an exclusive farm and forestry zone. Respondents
“Failure to file a signed original petition * * * by 5:00 p.m. on the due date, with the proper fee, shall be a jurisdictional defect. Failure to amend a petition to correct any other identified deficiency within seven (7) calendar days of notice thereof shall be a jurisdictional defect.”2
Respondents appealed to LUBA, which reached only one of respondents’ three assignments and reversed the county’s decision. The county and petitioner seek review of, and respondents cross-petition from, LUBA’s decision. We reverse on the petitions and the cross-petitions.
The county first argues that LUBA lacked jurisdiction over the appeal, because the director’s invocation of section 209-3.7 was not a decision that required an “exercise of factual, policy or legal judgment,” ORS 197.015(10)(b)(A) Csince amended by Or Laws 1991, ch 817, § 1), and was therefore not a reviewable land use decision. LUBA rejected
Although we do not disagree with LUBA’s rejection of the county’s ORS 197.015(10)(b)(A) argument, especially in the light of the two assignments of error that it did not reach, there is an important reason for deciding the jurisdictional question on the basis that we do. If a dismissal for noncompliance with section 209-3.7 were treated as a decision that simply applies that nonreviewable “ministerial” provision, rather than one that finalizes a “land use decision, ’ ’ the county could use section 209-3.7, even erroneously, to dismiss every appeal from every underlying land use decision and thereby evade review of all of its decisions. As the facts of this case may display, the concern we express is not entirely hypothetical. See also Colwell v. Washington Co., 79 Or App 82, 718 P2d 747, rev den 301 Or 338 (1986).
We turn to the merits. LUBA concluded that the signature requirement was satisfied, despite the absence of a subscription on the petition itself, because the document was accompanied by a check for the filing fee and the check was signed.
Respondents ’ cross-petition asserts that LUBA erred by not reaching their first and second assignments of error. The clear, if unstated, reason why LUBA did not address those assignments is that the issue that it did decide was independently dispositive and the other assignments simply present alternative bases for reversing the county’s decision. However, our disposition of the county’s and petitioner’s petitions revives respondents’ other assignments to LUBA, and they must be considered on remand.
Reversed on petitions; reversed and remanded on cross-petition.
We follow our usual practice in reviewing LUBA decisions of referring to the parties by their designations in this court.
The term “jurisdictional” in the ordinance may not be precisely correct. Be that as it may, we understand the provision to impose certain procedural requirements that are mandatory prerequisites to an appeal to the governing body. See ORS 215.422.
LUBA noted, but did not reach, the question on which we base our decision that it had jurisdiction.
The “signed” document was in fact a photocopy of the check that respondents tendered with their appeal from the hearings officer’s first decision.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.