City of Pendleton v. Kerns

• Jurisdiction: Oregon
• Citation: City of Pendleton v. Kerns, 650 P.2d 101, 58 Or.App. 641 (Or. App. 1982)
• Docket Number: No. 81-127,81-127
• Parties: CITY OF PENDLETON, Fredrick S. Hill and Mary Ann Hill, Petitioners, v. F. Carter KERNS and Lou Levy, Respondents. ; CA A24312.
• Court: Oregon Court of Appeals
• Decision Date: 19 October 1982

Page 101

650 P.2d 101

58 Or.App. 641

CITY OF PENDLETON, Fredrick S. Hill and Mary Ann Hill, Petitioners, v.F. Carter KERNS and Lou Levy, Respondents.

No. 81-127; CA A24312.

Court of Appeals of Oregon.

Argued and Submitted July 7, 1982.

Decided Aug. 25, 1982.

Reconsideration Denied Sept. 29, 1982.

Review Denied Oct. 19, 1982.

Rudolph M. Murgo, City Atty., Pendleton, argued the cause for petitionerCity of Pendleton.With him on the brief was William J. Storie, Pendleton.

William J. Storie, Pendleton, argued the cause for petitionersFredrick S. Hill and Mary Ann Hill.With him on the brief was Rudolph M. Murgo, Pendleton.

Thomas R. Page, Portland, argued the cause for respondents.With him on the brief were Stephen T. Janik and Stoel, Rives, Boley, Fraser & Wyse, Portland.

Before GILLETTE, P. J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Petitioners, City of Pendleton(City) and Fredrick S. and Mary Anne Hill, seek judicial review of a decision by the Land Use Board of Appeals(LUBA) that reversed and remanded the City's decision to annex a parcel of land belonging to petitioners Hill to the city.We affirm.

Pendleton City OrdinanceNo. 3192, adopted on October 20, 1981, annexed approximately 12.36 acres of land owned by petitioners Hill (the Hill property) to the city.The Pendleton City Council adopted as its own the Pendleton Planning Commission's findings of fact and conclusions of law, which had recommended annexation.

Respondents filed and served their notice of intent to appeal with LUBA on November 16, 1981.The notice stated, in relevant part:

"Notice is hereby given that (respondents) intend to appeal that land use decision of (the City) entitled OrdinanceNo. 3192: An Ordinance Declaring a Certain Described Area Contiguous to the City of Pendleton to be Annexed Thereto, Zoning it R-1 Low Density Residential, Accepting the Written Consent of the Owners in the Area Proposed to be Annexed and Directing the City Recorder to Transmit Certain Documents to the Secretary of State, which became final on October 20, 1981 and which involves the annexation to and rezoning of the land area referred to in the ordinance to the City of Pendleton, State of Oregon."

City filed the required record with LUBA on December 3, 1981.By letter dated December 4, 1981, LUBA advised respondents and petitioners that the petition for review was due 20 days after receipt of the record and that the responsive brief was due 40 days after receipt of the record.

Respondents filed their petition for review on December 21, 1981.They included a copy of the findings of fact, statements of reasons and conclusions of law adopted by City but failed to include a copy of the pertinent ordinance.Instead, respondents inadvertently attached a copy of OrdinanceNo. 3191, which set the annexation for hearing, instead of OrdinanceNo. 3192, which effected the annexation itself.The petition for review repeatedly referred to OrdinanceNo. 3191, but it discussed exclusively the relevant ordinance, No. 3192, and the issues raised by the annexation.City's responsive brief, filed on January 11, 1982, responded to the annexation issues.

On January 11, 1982, City also filed a motion to dismiss for lack of jurisdiction based on respondents' failure to include a copy of OrdinanceNo. 3192 in their petition for review.On the same day, respondents filed a motion to amend their petition pursuant to LUBA Rules of Procedure, Section 7(D), to include a copy of the ordinance.On January 12, they also filed an answer to City's motion to dismiss.On January 18, 1982, City filed a response to the answer to the motion to dismiss and also filed an answer to the motion to amend the petition.On January 20, 1982, LUBA simultaneously issued orders granting respondents' motion to amend and denying City's motion to dismiss.

After hearing oral argument, LUBA submitted a proposed opinion and order to LCDC.LUBA's recommendation concluded that City had failed to comply with LCDC's annexation rule, OAR 660-01-315.Specifically, LUBA concluded that petitioner City had failed to find that the Hill property was physically developed or within an area physically developed for urban uses or that the property was clearly and demonstrably needed for an urban use before acknowledgment of the City's comprehensive plan.LCDC approved LUBA's recommendation without change.LUBA issued its final opinion and order on March 18, 1982, within 90 days after the date of filing of the petition for review, as required by Or.Law 1979, ch. 772, § 4(8).This proceeding followed.

Petitioners contend, first, that LUBA erred in denying the motion to dismiss for lack of jurisdiction.They argue that respondents' failure to attach a copy of the "land use decision" to their petition for review deprived LUBA of jurisdiction.A correct reading of Or.Laws 1979, ch. 772, demonstrates that LUBA has jurisdiction to review this land use decision.

Or.Laws 1979, ch. 772, § 4(1), as amended byOr.Laws 1981, ch. 748, § 35, which defines LUBA's jurisdiction, states in relevant part:

" * * * Subject to the provisions of Section 6a, Chapter 772,Oregon Laws 1979, relating to judicial review by the Court of Appeals and except as otherwise provided in section 3 of this 1981 Act(ORS 197.605), the board shall have exclusive jurisdiction to review any land use decision of a local government or special district governing body or a state agency in the manner provided in sections 5and6, chapter 772,Oregon Laws 1979."

Respondents properly commenced LUBA's review proceeding.Or.Laws 1979, ch. 772, § 4(1), as amended byOr.Laws 1981, ch. 748, § 35, states:

"Review of land use decisions under sections 4 to 6, chapter 772,Oregon Laws 1979, shall be commenced by filing a notice of intent to appeal with the Land Use Board of Appeals."

Or.Laws 1979, ch. 772, § 4(4) specifies the time and manner of filing a notice of intent to appeal.Respondents filed a timely and proper notice of intent to appeal with LUBA.That notice of intent to appeal correctly identified OrdinanceNo. 3192 and the annexation as the subject matter of the review proceeding.That filing commenced the review proceeding.LUBA therefore had acquired "jurisdiction" to review the land use decision.¹SeeBryant v. Clackamas County, 56 Or.App. 442, 445, 643 P.2d 649(1982).

Petitioners contend next that LUBA erred in granting respondents' motion to amend their petition for review pursuant to OAR 661-10-030(4). LUBA permitted the amendment to include a copy of OrdinanceNo. 3192.Petitioners do not contend that respondents' motion to amend was improper under LUBA's procedural rules or that LUBA abused its discretion under those rules when it permitted that amendment.Rather, petitioners appear to argue that LUBA lacks authority under its enabling statutes to adopt the procedural rule that it relied on when it permitted the amendment.Petitioners therefore ask this court to invalidate LUBA's procedural rule.

LUBA's enabling statute grants it rule-making authority.Or.Laws 1979, ch. 772, § 2a(4) states:

"The board shall adopt rules governing the conduct of review proceedings brought before it under sections 4 to 6 of this 1979 act."

LUBA has adopted rules of procedure for all appeals filed with it.SeeOAR 661-10-000 et seq. LUBA stated its purpose in adopting the procedural rules as follows:

"The procedures established in these rules are intended to provide for the speediest practicable hearing and decision in the review of land use decisions while affording all interested persons reasonable notice and opportunity to participate, reasonable time to prepare and submit their cases, and a full and fair hearing.The procedures established in these rules seek to accomplish these objectives to the maximum extent consistent with the time limitations placed upon the Board in Oregon Laws 1979, Chapter 772.These rules shall be interpreted to effectuate these policies and to promote justice.Technical violations of these rules which do not affect substantial rights or interests of parties or of the public shall not interfere with the review of a petition."OAR 661-10-005; LUBA, Rules of Procedure, Section 7.(Emphasis supplied.)

OAR 661-10-030(1) governs the filing and service of the petition for review.That section states that the petition for review must be filed with the Board and served on the governing body and all intervenors within 20 days after the date the record is received by the Board.Failure to file a petition for review within the time required will result in dismissal of the appeal.LUBA's Rules of Procedure set forth specifications for the petition for review.OAR 661-10-030(2).They require the petition for review to contain a copy of the land use decision of which review is sought, including the written findings of fact, statements of reasons and conclusions of law adopted by the governing body.OAR 661-10-030(3). OAR 661-10-010 defines "land use decision" as "(a) final decision or determination made by a city * * * that concerns the * * * application of statewide planning goals * * * " and "(f) inal decision or determination" as a "decision or determination which has been reduced to writing and which bears the necessary signatures of the governing body."OAR 661-10-030(4) permits amendment of the petition once filed.It states:

"A petition for review which fails to comply with sections (2) or (3) of this rule may, with permission of the Board, be amended.The Board shall determine whether to allow an amended petition for review to be filed in accordance with the provisions in rule 661-10-005."

LUBA's rules do not permit extension of the time for filing the petition.

We find nothing in any of these rules that exceeds LUBA's authority.All of them "govern the conduct" of appeals brought before it.None expands its jurisdiction; none is inconsistent with the statutory language.We therefore reject petitioner...