Rogue Advocates v. Josephine County

Pursuant to OAR 661-010-0010(3), and unless a local rule or ordinance provides for a later date, a local government decision becomes final when it is reduced to writing and bears the necessary signatures of decision maker(s); therefore, when a local rule or ordinance additionally provides that a written decision must be prepared and approved by a majority vote of the participating members of the hearing body, the local government’s decision will not be deemed “final” for the purposes of administrative and local rules until it is at least reduced to writing, notwithstanding other criteria.

Intervenor-respondent Brimstone Natural Resource Co. (Brimstone) filed an application for a conditional use permit, which was deemed complete April 17, 2015, and approved by the county planning director on July 29, 2015. Rogue Advocates and Peter Storm (petitioners) sought review of the approval. On December 7, 2015, the board of county commissioners (board) held a hearing on the appeal, but failed to reach a quorum, and therefore did not adopt any findings or a written decision. On December 16, 2015, petitioners filed with LUBA their notice of intent to appeal (NITA) the county’s July 29 decision, which they alleged became final on December 7. On December 23, Brimstone filed a petition for writ of mandamus to compel the county’s approval.

Brimstone moved to dismiss petitioners’ appeal, alleging that petitioners filed their NITA prior to a final decision. However, petitioners maintained that the failure to reach a quorum on December 7 had the legal effect of making the July 29 approval a final decision, and the NITA appeal timely. Under OAR 661-010-0010(3) and Josephine County Rural Development Code 31.130(c), a county’s decision on local appeal will not be final until it is reduced to writing. LUBA determined the board never reduced its December 7 action to writing, and held that while the meeting minutes could have met the writing requirement, they were not in fact approved until January 6, meaning that January 6 was the earliest date the findings could be considered “reduced to writing.” LUBA granted Brimstone’s motion, holding that petitioners’ NITA filed on December 16 was premature, as the board had not taken final action within the meaning of ORS 215.429(4), having never reduced to writing its findings of fact, prepared and approved by a board majority. LUBA concluded it did not have jurisdiction to consider this appeal. DISMISSED.