Chapman and Chapman LLC v. Coos County

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed within 21 days of a local government's final decision, and where a petitioner files a NITA through a filing method other than "registered or certified mail," pursuant to OAR 661-010-0015(1)(b) the date of filing will be the date that LUBA actually receives the NITA (as opposed to the date that the NITA is mailed as applies to filings by registered or certified mail).

Petitioner Chapman and Chapman LLC (Chapman), appealed a county determination of violation of the county’s land use and development ordinance, and the county moved to dismiss the appeal as untimely filed.

The county’s final decision was issued on January 5, 2016. Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed within 21 days of the date of the final decision. Under this rule, Chapman was required to file its NITA with LUBA by January 26, 2016. LUBA received Chapman’s NITA on January 28, 2016. Chapman responded to the county’s motion to dismiss by stating that it delivered its NITA to an overnight delivery service, FedEx, on January 27, 2016. Since Chapman did not mail its NITA to LUBA via certified mail, under OAR 661-010-0015(1)(b) the date of filing is the date LUBA receives the NITA. Chapman responded further by quoting a portion of OAR 661-010-0005, regarding technical violations, which provides that: “Failure to comply with the time limit for filing a [NITA] under OAR 661-010-0015(1) is not a technical violation.” Chapman argued that its violation of OAR 661-010-0015 was only a technical violation, as use of FedEx overnight delivery is identical in substance to filing by certified mail, because both services provide delivery tracking and confirmation. LUBA disagreed, holding that the express language of OAR 661-010-0015 states that the date of filing, for NITAs filed by a method other than “registered or certified mail,” is the date LUBA receives the NITA. LUBA held that to file through an overnight delivery service utilizes a filing method other than “registered or certified mail.” LUBA also held the last sentence of OAR 661-010-0005 specifically provides that failure to comply with the time limit for filing a NITA is not a technical violation. LUBA found the appeal untimely filed. DISMISSED.