Smith v. Douglas County

Absent a local ordinance specifying otherwise, LUBA will find a county official who receives a misfiled appeal of a land use decision has the authority to deny the application for improper filing.

Petitioner appealed county counsel’s denial of their appeal of the County’s approval of a land partition application. Petitioner had filed a motion with LUBA to suspend the statutory deadline for an appeal of the County’s decision and sent a copy of the appeal to county counsel, asking them to consider it also Petitioner’s notice of appeal to the County. County counsel sent a letter to Petitioner denying their appeal because it was “not clear” that the documents sent constituted a local notice to appeal, the documents were not filed with the planning director as required by the county code, and the filing fee was sent separately from the appeal documents. On appeal to LUBA, Petitioner made four assignments of error, the first of which LUBA focused on: that county counsel’s decision was improper because a) they lacked the authority to make a final decision, b) they had a conflict of interest as attorney for the County and should have removed themself from making a final decision, and c) their decision denied Petitioner’s rights under due process and equal protection, and prejudiced Petitioner’s right to a hearing.

LUBA noted that under the County’s Land Use and Development Ordinance (LUDO), appeals notices must be filed with the planning director, and the hearings officer and planning commission have authority over those appeals. However, LUBA agreed with the County that the LUDO provision does not apply to an attempted appeal filed with county counsel because the provision does not specify whether a county official has authority to decide if an attempted appeal they received may continue. As county counsel only denied Petitioner’s attempt to file with county counsel and did not make a substantive decision on Petitioner’s application, LUBA concluded county counsel had the authority to deny Petitioner’s attempted filing with county counsel. Regarding Petitioner’s claim as to county counsel’s potential conflict of interest, LUBA concluded it provided no basis for a remedy at LUBA under ORS 197.835(9). Finally, LUBA found Petitioner’s constitutional arguments to be undeveloped and held they could not be addressed.

Affirmed.