McGrew v. Yamhill County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 03-24-2017
  • Case #: 2016-113
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Under ORS 197.830(9), the 21-day deadline for filing notice of intent to appeal begins when the appealed decision becomes final. OAR 661-010-0010(3) provides that an appealed decision becomes final when it is reduced to writing and signed, unless a local rule or ordinance specifies a later date.

Petitioner appeals a Yamhill Board of County Commissioners decision that a marijuana dispensary that also sells alcohol and tobacco is not similar in character, scale, and performance to a food store and fruit or vegetable stand, and therefore is not a “similar use” permitted in a Highway/Tourist Commercial (HC) zone under Yamhill County Zoning Ordinance (YCZO) 603.04. Respondent moved to dismiss the appeal, arguing that it was not timely filed.

On respondent’s motion to dismiss, petitioner argues that the appealed county decision became final on October 28, 2016, the date when notice of the board’s decision was mailed to petitioner. Specifically, petitioner argues the 21-day deadline for filing notice of intent to appeal expired on November 18, 2016. Respondent argues that the appealed decision became final on the preceding day, October 27, 2016, when the board reduced their decision to writing and signed it, which means the 21-day deadline expired on November 17, 2016. Petitioner mailed notice of intent to appeal, using certified mail, on November 18, 2016. Under OAR 661-010-0015(1)(b) the filing date for notice sent by certified mail is the date of mailing. Thus, whether petitioner’s notice of intent to appeal was timely depends on the date the county decision became final. 

LUBA agreed with respondent, because under OAR 661-010-0010(3), a county decision becomes final when it is reduced to writing and signed, unless a local rule or ordinance specifies that the decision becomes final on a later date. Petitioner did not cite any part of the YCZO that delays the date of finality. As such, the decision became final on October 27, 2016, the 21-deadline for filing notice of intent to appeal expired on November 17, 2016, and Petitioner’s filing on November 18, 2016, was one day late. DISMISSED.