Zimmerlee v. Crook County

Where a party seeking to appeal a county land use decision files a NITA two days late and makes no showing of prejudice, LUBA will strictly construe ORS 197.830(9) and dismiss the appeal.

The County approved Intervenor’s conditional use permit (CUP) for an aggregate mining facility. The first page of the County’s decision stated it was adopted on July 6, 2022. The last page was dated by hand, also July 6, 2022. Petitioner received a Notice of Decision and Final Decision from the County by email. Petitioner filed their Notice of Intent to Appeal (NITA) the County’s decision to approve the CUP with LUBA on July 29, 2022. Intervenor moved to dismiss the appeal.

In response to Intervenor’s motion to dismiss, Petitioner argued the County prejudiced their ability to timely file a NITA because, among other things, the handwritten date on the last page of the County’s decision was illegible and Petitioner did not receive written notice of the final decision by mail. A NITA must be filed no later than 21 days after the decision sought to be reviewed is final. ORS 197.830(9). OAR 661-010-0010(3) provides the deadline to file an appeal with LUBA begins to run when the decision is reduced to writing, signed, and becomes final, “unless a local rule or ordinance specifies that the decision becomes final at a later date[.]" Crook County Code (CCC) 18.172.0090(3) states that a land use decision becomes final on the date the decision is reduced to writing and signed by the hearing authority. LUBA reiterated its holding in McGrew v. Yamhill County, 75 Or. LUBA 247 (2017), that a NITA filed late by a mere day was grounds for dismissal of the appeal. None of the reasons Petitioner provided showed prejudice, and the NITA was not filed by the deadline of July 27, 2022. The appeal is dismissed.