Bruce v. City of Hillsboro

977 P.2d 435, 159 Or. App. 495, 1999 Ore. App. LEXIS 526
CourtCourt of Appeals of Oregon
DecidedApril 14, 1999
DocketLUBA No. 96-153; CA A103234
StatusPublished
Cited by4 cases

This text of 977 P.2d 435 (Bruce v. City of Hillsboro) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruce v. City of Hillsboro, 977 P.2d 435, 159 Or. App. 495, 1999 Ore. App. LEXIS 526 (Or. Ct. App. 1999).

Opinion

DEITS, C. J.

Petitioner seeks review of LUBA’s order awarding respondent City of Hillsboro costs and attorney fees of approximately $5,400, pursuant to ORS 197.830(14)(b).1 We affirm.

Petitioner appealed to LUBA from four separate ordinances adopted by the city that were related to the zoning of an area designated as a Light Rail Station Community Planning Area. Two of the ordinances that petitioner challenged were general ordinances affecting the entire planning area and two of the ordinances applied specifically to petitioner’s property. Petitioner filed a single notice of appeal purporting to challenge all four ordinances. In September 1996, the city moved to dismiss the appeal on the ground that petitioner needed to file four separate notices of appeal to challenge the four decisions and on the ground that petitioner failed to provide notice of the appeal to all of the persons who had received written notice of the city’s decision, as required by OAR 661-010-0015(2).2 Petitioner responded to the motion by informing LUBA that it was his view that only one notice of intent to appeal was necessary and that the notice requirements of OAR 661-010-0015 were satisfied because he was advised by the city’s staff that there were no other parties entitled to notice of the LUBA appeal.

[498]*498In November 1996, LUBA issued an order denying the city’s motion to dismiss the appeal but advising petitioner that if he wanted to appeal all four ordinances it would be necessary to submit filing fees for three additional appeals, because each ordinance is a separate land use decision. LUBA’s order also informed petitioner that his failure to comply with the requirement of OAR 661-010-0015(2) that all interested and essential parties must be served with a notice of intent to appeal would warrant dismissal, if a party who was not served showed prejudice to the party’s substantial rights. LUBA advised petitioner in the order to serve all interested and essential parties as soon as possible. Petitioner responded by withdrawing his challenge to three of the four ordinances. However, rather than providing additional notice to persons entitled to notice under OAR 661-010-0015(2), as he was advised to do in LUBA’s order, petitioner continued to assert that he was not required to comply with the rule because the city’s staff had advised him that further notice was not necessary. The city again moved to dismiss the appeal. LUBA heard oral arguments on the merits of the appeal and on the motion to dismiss. On February 6, 1997, LUBA issued an order dismissing petitioner’s appeal for lack of jurisdiction because of petitioner’s failure to provide notice as required by OAR 661-010-0015(2).

On February 21,1997,15 days after LUBA issued its order of dismissal, the city filed a petition for attorney fees under ORS 197.830(14)(b). In response to the motion, petitioner filed a motion to deny fees on the grounds that the petition for attorney fees was untimely and that there was probable cause to believe that his appeal to LUBA was well founded in law and based on factually supported information. By letter of February 26, 1997, LUBA advised respondent that additional details were necessary to support the fee request. The letter also informed petitioner that, if he wanted to challenge the fee request, it would be necessary to file objections. Respondent then filed an amended affidavit providing additional information on the fee request. Petitioner filed an objection to the fee request asserting that the fee request was untimely, that he did have probable cause to bring the appeal, and that the fee request was based on false and exaggerated facts and was not sufficiently detailed.

[499]*499In July 1998, LUBA issued an order awarding attorney fees to the city of approximately $5,400. LUBA explained its decision to award fees under ORS 197.830(14)(b) as follows:

“In the present case, we dismissed petitioners’ appeal for lack of jurisdiction prior to consideration of the merits of the arguments raised by petitioners in their assignments of error. Since the city’s motion to dismiss was the sole basis for our disposition of this appeal, we consider only whether the position petitioners asserted in defense to the city’s motion to dismiss was presented ‘without probable cause to believe the position was well-founded in law or on factually supported information.’ ORS 197.830(14)(b).”

LUBA then concluded that “petitioners’ position that their notice of intent to appeal was correctly served” was not supported by “probable cause,” within the meaning of the statute.3

Petitioner makes a number of arguments urging the reversal of LUBA’s award of attorney fees and costs under ORS 197.830(14)(b). Petitioner first argues that LUBA erred as a matter of law in issuing the order allowing respondent’s request for attorney fees. In this assignment of error, petitioner’s specific contention is that respondent’s request for fees was untimely under LUBA’s rules and, because of that, LUBA had no discretion to award attorney fees. We disagree. Petitioner is correct that respondent’s fee petition was one day late. Nonetheless, LUBA has construed its rules to authorize it to exercise its discretion to allow untimely filings under certain circumstances. In doing so, LUBA has relied on the purpose section of its rules, which provides:

“These rules are intended to promote the speediest practicable review of land use decisions and limited land use decisions, in accordance with ORS 197.805-197.855, while affording all interested persons reasonable notice and opportunity to intervene, reasonable time to prepare and submit their cases, and a full and fair hearing. The rules [500]*500shall be interpreted to carry out these objectives and to promote justice. Technical violations not affecting the substantial rights of parties shall not interfere with the review of a land use decision or limited land use decision. Failure to comply with the time limit for filing a notice of intent to appeal under OAR 661-010-0015(1) or a Petition for Review under OAR 661-010-0030(1) is not a technical violation.” OAR 661-010-0005.

LUBA has considered late filings, such as this, to be technical violations and implicitly did so here by allowing the fee request. LUBA’s interpretation of its rule is not inconsistent with the text or context of the rules and is not otherwise unlawful. Accordingly, there is no basis to conclude that LUBA’s interpretation of its rule is erroneous. See Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 881 P2d 119 (1994).

Petitioner’s second assignment of error is that LUBA erred as a matter of law by ignoring relevant facts and arguments presented in petitioner’s written submissions in response to the respondent’s request for attorney fees. Petitioner asserts:

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Bluebook (online)
977 P.2d 435, 159 Or. App. 495, 1999 Ore. App. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-city-of-hillsboro-orctapp-1999.