McDougal Brothers, Inc. v. Lane County

Petitioners applied to establish four forest template dwellings. On February 20, 2020, a hearings official issued their decisions denying the applications. On October 29, 2019, the county amended the Lane Code (LC). Under the amended LC, hearings official decisions could not be appealed to the board of commissioners. On March 3, 2020, petitioners applied for reconsideration of those denials. On April 9, 2020, the hearings official issued their decisions denying the applications on reconsideration. On April 20, 2020, LUBA remanded the amended version of the LC. This appeal followed.

When LUBA remanded the amended version of the LC, the prior version of the LC regained effectiveness. Under the prior version of the LC, hearings official decisions could be appealed to the board of commissioners within 12 days of being signed. Under ORS 197.825(2)(a), LUBA’s jurisdiction “[i]s limited to those cases in which the petitioner has exhausted all remedies available by right before petitioning [LUBA] for review.” Because petitioners failed to appeal the hearings official’s decisions on reconsideration to the board of commissioners by April 21, 2020—12 days after those decisions were signed—intervenor moved to dismiss the appeals for lack of jurisdiction.

Petitioners argued that the amended version of the LC applied to the hearings official’s decisions on reconsideration because, under Ramsay v. Linn County and Schultz v. City of Grants Pass, changes to the law governing exhaustion are applied prospectively. In Ramsay, LUBA concluded that the petitioner was not required to comply with amendments to the statutes governing the raise it or waive it requirement that were made after the petitioner had filed their appeal with LUBA. In Schultz, LUBA dismissed an appeal of an urban partition decision because the legislature did not grant LUBA jurisdiction to review such decisions until after the challenged decision had become final and the petitioner had filed their appeal with LUBA. LUBA concluded that those cases were inapposite because they concerned legislation that was adopted during the pendency of LUBA appeals, whereas, in this case, the prior version of the LC regained effectiveness by operation of law.

The text of the hearings official’s decisions advised petitioners that they could either seek further reconsideration by the hearings official or appeal to LUBA, and it did not mention a right of appeal to the board of commissioners. Petitioners argued that, under Mountain West Investment v. City of Silverton and Friends of Clean Living v. Polk County, they should have been able to rely on the instructions in the hearings official’s decisions. In Mountain West, LUBA denied a motion to dismiss an appeal of a planning commission decision because the code was ambiguous regarding whether such decisions could be appealed to the city council. In Friends of Clean Living, LUBA denied a motion to dismiss an appeal of a planning director decision because the decision was fairly read to state that there was no right of local appeal. Here, because the prior version of the LC unambiguously provided that hearings official decisions could be appealed to the board of commissioners, and because the county’s reconsideration application forms advised petitioners that the amended version of the LC had been appealed and that the prior version of the LC might regain effectiveness, LUBA concluded that the reasoning in Mountain West and Friends of Clean Living did not apply.

Petitioners also argued that, because LUBA remanded the amended version of the LC and the prior version of the LC regained effectiveness one day before the 12-day appeal period to the board of commissioners expired under the prior version of the LC, and because petitioners did not actually learn about the remand until after the 12-day period had expired, applying the prior version of the LC to the hearings official’s decisions created a “jurisdictional mousetrap.” Because this argument was based on equitable considerations, and because petitioners did not establish that it was within LUBA’s statutory authority to grant such equitable relief, the motions to dismiss were granted and the appeals were DISMISSED.