Bartlett v. City of Portland

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed with LUBA within 21 days of the date the local government's land use (or limited land use) decision became final; where a petitioner sends a NITA via certified mail within the 21 days, but mails it to an address other than LUBA's current address and as a result LUBA ultimately receives the NITA outside of the 21-day period, the petitioner's appeal will be dismissed as untimely filed.

On September 8, 2015, following the city’s August 20, 2015, final decision approving a proposal to disconnect a city reservoir from the city’s public water system, Mark Bartlett and Deborah White mailed a notice of intent to appeal (NITA) to LUBA by way of certified mail. However, Bartlett and White mailed the NITA to LUBA’s former address at 550 Capitol Street NE, Suite 235, Salem, Oregon 97301-2552, and LUBA did not receive the NITA until September 17, 2015. Given the 21-day deadline to appeal, Bartlett and White needed to file their NITA by September 11, 2015. The city subsequently moved to dismiss the appeal as untimely filed.

In its motion to dismiss, the city argued that a NITA placed in an envelope that is addressed and sent via certified mail to an address other than LUBA’s correct address is not “filed” with LUBA on the date of mailing, but rather is “filed” on the date LUBA physically receives the NITA. The city argued that therefore Bartlett and White's NITA was not timely filed pursuant to OAR 660-010-0015(1)(a), having been filed after the 21-day appeal period that had expired on September 11, 2015. LUBA agreed with the city and determined that Bartlett and White’s NITA was not “filed” with LUBA until the date LUBA physically received it, on September 17, 2015, and that the NITA was therefore filed more than 21 days after the date of the city's final decision. LUBA additionally noted that since May, 2012, OAR 661-010-0075(9) has provided that LUBA’s correct, current address is 775 Summer Street NE, Suite 330, Salem, Oregon 97301-1283, and that the address is also posted on the agency website. Accordingly, the appeal was DISMISSED.