East McAndrews Neighborhood Ass'n v. City of Medford

800 P.2d 308, 104 Or. App. 280, 1990 Ore. App. LEXIS 1477

Opinion

DEITS, J.

Petitioner East McAndrews Neighborhood Association (association) seeks review of LUBA’s dismissal, for lack of standing, of its appeal from a land use decision by the City of Medford.

Respondent Schleining¹ moved to dismiss the petition on the ground that the petition does not show proof of service on LUBA.² ORS 197.850(4) requires copies of the petition to be served on LUBA and all parties of record in the LUBA proceeding. See also ORAP 4.15(5)(a); ORAP 4.62. However, ORS 197.850(3) (b) provides:

“Filing of the petition, as set forth in paragraph (a) of this subsection, and service of a petition on all persons identified in the petition as adverse parties of record in the LUBA proceeding is jurisdictional and may not be waived or extended.” (Emphasis supplied.)

Failure to serve LUBA is not a jurisdictional defect under the statute. The motion is denied, and we turn to the merits.

ORS 197.830(2)(b), the relevant standing section, provides that a person may petition LUBA for review of a local government’s land use decision, if the person “[a]ppeared before the local government * * * orally or in writing.” See also ORS 197.830(11)(a). The association is the only person or entity that the petition designates as a petitioner. There is no evidence that it, as an entity, appeared in the local proceedings. The association contends that some of its members did make appearances and that it, therefore, has “representational” standing. However, nothing in the record identifies any of the persons who appeared before the city as members of the association.

The association argues that it is comprised of its members, that they appeared and could have standing and that it should be accorded standing “to protect the inherent rights of its members.” However, there is simply no evidence to establish the essential underlying facts for that argument.³

Affirmed; motion to dismiss denied.

1 The city has waived appearance pursuant to ORAP 2.15(4)(b). We use the term “respondent” to refer to Schleining only.

2 Before submission of the case, we denied the motion with leave to renew it in respondent’s brief and at oral argument.

3 The association argues that it submitted to LUBA a supplemental memorandum, with supporting affidavits, that identifies some of its members. However, LUBA refused to consider that evidence, and the association does not assign that ruling as error.