1000 Friends of Oregon v. Linn County

(1) Where a petition for review is deficient under OAR 661-010-0030(2) (relating to formatting requirements) and (4) (relating to substantive requirements), LUBA will hold that a correction to the petition’s formatting alone is allowable under OAR 661-010-0030(3) (as distinguished from an amendment to the petition’s substance which, under OAR 661-010-0030(6), is allowable only with permission from LUBA). (2) Where a petitioner’s claimed errors are discernable from their petition for review despite their failure to set out separate assignments of error, LUBA will hold that the substantial rights of the other parties were not prejudiced. (3) Where a petitioner’s preservation statement is inadequate under OAR 661-010-0030(4)(d), but it is possible to ascertain from the record citations in their reply brief where they allege the issues raised in the petition for review were preserved, LUBA will hold that the inadequacy of the preservation statement is a technical violation and that the substantial rights of the other parties were not prejudiced.

Petitioner appealed the County’s approval of an ordinance adopting a plan amendment and zone change for a parcel of land. On May 24, 2022, Petitioner filed their petition. Among other deficiencies, the original petition failed to include assignments of error and a summary of arguments. The petition also did not contain a table of authorities, an index, a certificate of service, nor a certificate of compliance. On May 25, 2022, Petitioner filed a corrected and amended petition for review. The text of the amended petition remained the same, except for the reformatting of headings and the inclusion of a table of authorities, an index, a certificate of service, and a certificate of compliance. 

OAR 661-010-0030(2) provides the requirements for the formatting of petition for review, such as inclusion of a table of authorities and a certificate of compliance. OAR 661-010-0030(4) provides the requirements for the contents of the petition, including assignments of error and a summary of the arguments. Under OAR 661-010-0030(6), a petition which fails to comply with (4) may be amended. LUBA will determine whether to allow the amended petition based on if doing so would prejudice the substantial rights of the parties.

On appeal, Intervenors argued that Petitioner intentionally filed an incomplete petition for review in an effort to circumvent the rules that petitions for review must be timely filed, and that the original petition for review was so deficient as to not constitute a timely petition for review. LUBA agreed with Intervenors that Petitioner’s filing of a petition with obvious deficiencies was to avoid dismissal of the appeal for their failure to timely file; however, LUBA noted that OAR 661-010-0030(3) allows petitioners to correct deficiencies and noncompliance with the requirements of section (2) within a short timeframe. Petitioner’s corrected petition was filed within one day and did not include new assignments of error, alter the substance of the arguments, or otherwise amend the petition to comply with section (4). Accordingly, LUBA held that the Board’s permission for the corrected petition was not required under section (6), and the corrected petition was allowed under section (3). 

OAR 661-010-0030(4)(d) requires that a petition for review "demonstrate that the issue raised in the assignment of error was preserved during the proceedings below."

Intervenors further argued that, because Petitioner did not set out separate assignments of error in the petition nor did they demonstrate that the issues raised were preserved, LUBA should refuse to consider the petition, or reject the arguments presented within it.

LUBA will not generally reject a petition for review solely due to a petitioner's failure to set out separate assignments of error but will limit its review to the alleged errors that are clearly presented in the arguments. Freels v. Wallowa County, 17 Or. LUBA 137, 140-41 (1988). Failure to set out assignments of error in the petition for review will not warrant striking the petition where “the claimed errors are discernible from the petition.” Hallmark Inns & Resorts v. City of Lake Oswego, 65 P.3d 300 (2003). LUBA reasoned that because the claimed errors were discernable from the petition for review despite Petitioner’s failure to set out separate assignments of error, Intervenors had a fair opportunity to respond and their substantial rights were not prejudiced. Accordingly, LUBA declined to accept Intervenors’ request to reject Petitioner’s arguments.

Where preservation is disputed, LUBA will not search the record or large page ranges cited in the petition for review to determine whether an issue was raised below. H2D2 Properties, LLC v. Deschutes County, 10 _ Or. LUBA_, _ (LUBA No 2019-066, Dec 19, 2019) (slip op at 7-9). However, LUBA will not deny an assignment of error based on an inadequate preservation statement in the petition for review where a reply brief provides more focused citations to places where an issue was raised below. Nehmzow v. Deschutes County, _ Or. LUBA _, _ (LUBA No 2019-110, Aug 10, 2020), aff'd, 479 P.3d 340 (2021)(slip op at 13-14). While LUBA agreed with Intervenors that Petitioner’s preservation statement (“Petitioner and the other parties adequately raised the legal issues argued below in its comments on remand before the county") was inadequate under OAR 661-010-0030(4)(d), LUBA noted that it was possible to ascertain from the record citations in Petitioner’s reply brief where they alleged the issues raised in the petition for review were preserved. Accordingly, LUBA held that Petitioner’s inadequate preservation statement in their petition for review was a technical violation that did not prejudice Intervenor’s substantial rights.

On the merits, LUBA sustained the fourth and fifth subassignments of error, in part, and remanded to the County for further proceedings.