Stone Age Republic, LLC v. City of Grants Pass

ORS 197.830(9) provides a strict 21-day deadline after the date of a local government's final decision for filing a Notice of Intent To Appeal with LUBA, and where a petitioner relies on a local government's erroneous statement as to the filing deadline, that reliance will not toll the strict 21-day appeal period, regardless of the reasonableness of the petitioner's reliance on the local government's erroneous statement.

Stone Age Republic, LLC (Stone Age), petitioner, appealed the city’s decision to deny its application for site plan review for a medical marijuana facility. Stone Age filed its Notice of Intent To Appeal (NITA) by certified mail on October 12, 2015, and the city moved to dismiss the appeal as untimely filed.

Pursuant to ORS 197.830(9), a NITA must be filed no later than “21 days after the date the decision sought to be reviewed becomes final.” The city contended that the appealed decision became final on September 16, 2015, and that, therefore, Stone Age should have filed the NITA not later than October 7, 2015. Stone Age responded that, because the city’s written notice of the decision that was mailed to Stone Age and others stated, incorrectly, that the appeal period to LUBA was 21 days from the date of the mailing of that notice, the city “should not be allowed to benefit from its mistakes that misled [Stone Age] as to the deadline for filing the NITA.” Stone Age argued that its reliance on the city’s representation was reasonable, and that the deadline for filing the NITA should therefore have been tolled based on that reasonable reliance. Nevertheless, LUBA determined that the city’s error regarding the appeal deadline did not excuse Stone Age’s failure to meet the statutory time limit. See Columbia River Television v. Multnomah County, 299 Or 325 (1985) (clerk’s error in response to a telephone inquiry about an appeal deadline did not excuse a failure to meet a statutory time limit); see also Friends of Jacksonville v. City of Jacksonville, 44 Or LUBA 379, aff’d 189 Or App 283, rev. denied 336 Or 422 (2003) (city’s erroneous statement regarding the LUBA appeal deadline did not have the legal effect of extending the appeal deadline). DISMISSED.