Towey v. City of Hood River

414

Argued and submitted June 1, affirmed August 24, 2022

Brian TOWEY,

Kim Kean, Denise McCravey,

John McGrory, Jeanie Senior,

and Susan Garrett Crowley,

Petitioners,

v.

CITY OF HOOD RIVER

and Thrive Hood River,

Respondents.

Land Use Board of Appeals

2021057; A178377

516 P3d 738

In a land use action, the Land Use Board of Appeals (LUBA) dismissed an

appeal after concluding that its administrative rules required it to do so. Before

LUBA, petitioners filed a notice of intent to appeal, but did not file a timely peti-

tion for review; intervenor-petitioner filed a timely intervenor’s brief. On judi-

cial review, petitioners and intervenor-petitioner contend that LUBA erred in

dismissing the appeal, arguing, in part, that intervenor-petitioner’s timely-filed

brief qualified under OAR 661-010-0030(1) as a petition for review that would

prevent dismissal of the appeal. Held: LUBA plausibly interpreted OAR 661-010-

0030(1) to require dismissal of the appeal where no petitioners filed a petition

for review on time and where no extension to the due date was obtained. LUBA

is entitled to deference in the plausible interpretation of its own administrative

rules.

Affirmed.

John McGrory argued the cause and filed the brief pro se.

Kim Kean, Denise McCravey, Brian Towey, and Jeanie Senior

joined the brief pro se.

Susan Garrett Crowley argued the cause and filed the

brief pro se.

Daniel Kearns argued the cause for respondents. Also on

the joint answering brief were Reave Kearns PC for respon-

dent City of Hood River and Alexis Biddle for respondent

Thrive Hood River.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

Cite as 321 Or App 414 (2022) 415

PAGÁN, J.

Affirmed.

416 Towey v. City of Hood River

PAGÁN, J.

This matter comes before us on judicial review after

the Land Use Board of Appeals (LUBA) dismissed an appeal.

Petitioners Towey, Kean, McCravey, McGrory, and Senior

(collectively, Towey petitioners) and petitioner Crowley, who

was an intervenor in the LUBA proceedings, seek judicial

review of LUBA’s final order and opinion dismissing the

appeal to LUBA. We review to determine whether LUBA’s

order is unlawful in substance or procedure. ORS 197.850

(9)(a).1 We conclude that LUBA’s interpretation of its admin-

istrative rules is plausible. We accordingly defer to that

interpretation and affirm.

The pertinent background is procedural in nature

and not in dispute. On May 12, 2021, the City of Hood River

issued notice of its decision adopting Ordinance 2061, which

amended Hood River Municipal Code title 17, Zoning. On

May 17, 2021, Towey petitioners filed their notice of intent

to appeal the city’s decision to LUBA.2 On June 4, 2021,

Crowley filed her motion to intervene on the side of Towey

petitioners and Thrive Hood River filed its motion to inter-

vene on the side of the city; LUBA granted those motions.

Under ORS 197.830(1) and (2), review of land use decisions

“shall be commenced by filing a notice of intent to appeal

with [LUBA],” and “a person may petition the board for

review of a land use decision * * * if the person * * * [f]iled a

notice of intent to appeal the decision.”

On December 21, 2021, LUBA issued an order set-

tling the record. Under OAR 661-010-0030(1), which pro-

vides that “the petition for review * * * shall be filed with

the Board within 21 days after the date the record is * * *

settled by the Board,” the petition for review was due on

1

ORS 197.850(9) states, in part:

“The court may affirm, reverse or remand the order. The court shall

reverse or remand the order only if it finds:

“(a) The order to be unlawful in substance or procedure, but error in pro-

cedure is not cause for reversal or remand unless the court finds that sub-

stantial rights of the petitioner were prejudiced thereby[.]”

2

Under OAR 661-010-000, “[p]roceedings commenced before July 1, 2021

shall be governed by OAR 661-010-005 through OAR 661-010-0075 as effective on

the date the notice of intent to appeal was filed.” Therefore, all references herein

to those rules are the versions effective on May 17, 2021.

Cite as 321 Or App 414 (2022) 417

January 11, 2022. Crowley timely filed an intervenor’s brief.3

On January 11, 2022, Towey petitioners filed a motion titled

“Unopposed Petitioners’ Motion for Extension of Time,”

which requested an extension of time for Towey petitioners

to file their petition for review for the reason that the

principal drafter of the petition was in quarantine due to

COVID-19 and was unable to timely perform the cleri-

cal and administrative tasks of completing and filing the

petition. The motion stated that the city did not oppose the

motion, but it did not indicate the position of either Crowley

or Thrive Hood River.

OAR 661-010-0067(2) provides, in part and sub-

ject to exceptions that are not relevant here, “in no event

shall the time limit for the filing of the petition for review be

extended without the written consent of all parties.” 4 OAR

661-010-0067(4) provides that a motion for extension of time

“must be filed with the Board within the time required for

performance of the act for which an extension of time is

requested. A motion for extension of time that is not accom-

panied by a written consent by all parties to the requested

extension shall state whether all parties to the appeal

have agreed to the motion for extension of time, orally or

otherwise.”

On January 14, LUBA received Towey petitioners’

petition for review. On that same date, LUBA issued an order

directing Towey petitioners to file a motion for extension of

time conforming to the rules, including written evidence of

consent to the extension by all parties, within seven days of

the order. Towey petitioners then filed an amended motion

for extension of time, which included the written consent of

the city and Crowley; however, it did not include the writ-

ten consent of Thrive Hood River. An attached declaration

stated that although Thrive Hood River had been contacted

concerning consent, a response had not been received by the

due date of the amended motion.

3

Crowley’s filing was titled “Petition for Review of Intervenor-Petitioner.”

Under OAR 661-010-0050(6)(a) Crowley was required to file a brief “within the

time limit for filing the petition for review.”

4

Other time limits “may be extended upon oral or written consent of all par-

ties, the Board’s motion or motion of a party.” OAR 661-010-0067(3).

418 Towey v. City of Hood River

On January 24, the city filed a motion to dismiss

the appeal due to Towey petitioners’ failure to file their peti-

tion for review by the due date of January 11. Attached to

the city’s motion was a letter from Thrive Hood River stat-

ing that it did not consent to an extension of time for fil-

ing the petition for review. On January 27, LUBA issued

an order denying Towey petitioners’ amended motion for

extension of time to file their petition for review because it

did not include written evidence of Thrive Hood River’s con-

sent. LUBA stated in its order that, although it was “sym-

pathetic to [Towey] petitioners’ circumstances, [it did] not

have discretion to waive the petition for review deadline in

the absence of [Thrive Hood River’s] written consent to an

extension.”

In denying the motion for extension of time, LUBA

relied on ORS 197.830(11), which provides that a petition for

review and supporting brief shall be filed within the dead-

lines established by LUBA by rule under ORS 197.830(13).5

As noted above, the deadline to file a petition for review is

found in OAR 661-010-0030(1) which provides:

“Unless the Board orders otherwise pursuant to ORS

197.830(10)(a), the petition for review together with four

copies shall be filed with the Board within 21 days after

the date the record is received or settled by the Board. See

OAR 661-010-0025(2) and 661-010-0026(6). The petition

shall also be served on the governing body and any party

who has filed a motion to intervene. Failure to file a petition

for review within the time required by this section, and any

extensions of that time under OAR 661-010-0045(9) or 661-

010-0067(2), shall result in dismissal of the appeal and for-

feiture of the filing fee and deposit for costs to the govern-

ing body. See OAR 661-010-0075(1)(c). Co-petitioners who

file a single Notice of Intent to Appeal shall be limited to a

single, joint petition for review.”

LUBA also relied on OAR 661-010-067(2), which states, in

part, “[e]xcept as provided in this section, in no event shall

the time limit for the filing of the petition for review be

extended without the written consent of all parties.” LUBA

stated that the “deadline for filing the petition for review is

5

ORS 197.830(13)(a) states that “[t]he board shall adopt rules establishing

deadlines for filing petitions and briefs and for oral argument.”

Cite as 321 Or App 414 (2022) 419

strictly enforced,” and held that Towey petitioners’ motion for

extension of time to file their petition for review was denied

and that LUBA would not consider their petition for review.

At the time LUBA ruled on the motion for extension of time,

the responses to the city’s motion to dismiss were not yet

due and had not been filed; LUBA suspended all other case

deadlines pending the outcome of the motion to dismiss.

Towey petitioners filed a motion for reconsideration

of the denial of their motion for an extension and a response

to the city’s motion to dismiss. Crowley also filed a response

to the city’s motion to dismiss. No one disputed that the peti-

tion for review was due on January 11, 2022, and that Towey

petitioners did not file their petition for review by that date.

In their motion for reconsideration, Towey petitioners argued

that LUBA could excuse the late filing of their petition for

review notwithstanding Thrive Hood River’s nonconsent.

In response to the motion to dismiss, Towey petitioners and

Crowley argued that, whether or not LUBA allowed Towey

petitioners’ late petition for review, the appeal must proceed

to a resolution on the merits of the assignments of error in

Crowley’s brief, which was timely filed. The city argued that,

because Crowley did not file her own notice of appeal, her

appeal is contingent on Towey petitioners’ appeal, and if

LUBA dismissed Towey petitioners’ appeal, the appeal must

be dismissed in its entirety. LUBA agreed with the city and

issued its final opinion and order on March 21, 2022, in

which it granted the city’s motion to dismiss the appeal.

On review before us, Towey petitioners argue in

their first assignment of error that LUBA erred when it con-

cluded that it did not have discretion to extend the due date

for the filing of their petition for review “(1) where filing by

the due date would have caused [them] to incur substantial

health risks due to the extraordinary and unanticipated

circumstances that existed on that date as a result of the

Covid pandemic, and (2) where not allowing an extension of

the petition due date would result in substantial prejudice”

to their rights. Respondents6 respond that LUBA correctly

and plausibly concluded that there is no basis in statute,

6

The City of Hood River and Thrive Hood River filed a joint answering brief

on judicial review.

420 Towey v. City of Hood River

administrative rule, or appellate case law for the discretion

that Towey petitioners claim that LUBA has.

“LUBA is entitled to deference in the interpretation of

its own administrative rule[s] if its interpretation is plausible

and not inconsistent with the rule, the rule’s context, or any

other source of law.” Maguire v. Clackamas County, 250 Or App

146, 162, 279 P3d 314 (2012) (citing Don’t Waste Oregon Com.

v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994)).

Towey petitioners rely on LUBA’s order in Confederated Tribes

of the Warm Springs Reservation v. Jefferson County, 42 Or

LUBA 597 (2002), for the proposition that LUBA had discre-

tion here to grant their requested extension of time. However,

the circumstances in Confederated Tribes are distinguishable

from those here. In that case, LUBA extended the due date

for the petition for review on its own motion under OAR 661-

010-0065(4) because of its own administrative error that had

prejudiced the substantial rights of parties through no fault

of their own.

Here, LUBA explained that “OAR 661-010-0067(2)

is clear that, ‘[e]xcept as provided in this section, in no event

shall the time limit for the filing of the petition for review be

extended without the written consent of all parties.’ ” No one

disputes that Towey petitioners did not have written con-

sent of Thrive Hood River. LUBA’s conclusion that it could

not extend the petition for review due date is a plausible

interpretation of OAR 661-010-0067(2) and is not inconsis-

tent with the rule or the rule’s context or any other source of

law. LUBA did not err in that regard.

In their second assignment, Towey petitioners con-

tend that, assuming LUBA did not have discretion to extend

the filing deadline, LUBA erred in dismissing the appeal as

to Towey petitioners and as to Crowley, who had timely filed

a petition for review. Crowley likewise challenges LUBA’s

granting of the city’s motion to dismiss.7

7

Crowley raises three assignments of error; however, the “assignments” chal-

lenge various components of LUBA’s reasoning that resulted in its decision to dis-

miss the appeal. “Thus, [the assignments] are more properly understood as separate

arguments in support of a single assignment of error.” Wirth and Wirth, 319 Or App

169, 171 n 1, 509 P3d 685 (2022). Assignments of error are made to a ruling, not the

reasoning for the ruling. See ORAP 5.45(3) (“Each assignment of error must identify

precisely the legal, procedural, factual, or other ruling that is being challenged.”)

Cite as 321 Or App 414 (2022) 421

Towey petitioners contend that LUBA did not have

the authority to dismiss the appeal as to Towey petitioners

or Crowley because Crowley’s timely-filed petition for review

qualified under OAR 661-010-0030(1) as a petition for review

that would prevent dismissal of the appeal. Crowley contends

that LUBA has made implausible interpretations of both

its enabling statutes and its rules. She argues that LUBA

did not have statutory authority to dismiss the appeal, that

LUBA added a “jurisdictional requirement” that a petition

for review must be filed by a party other than an interve-

nor, which exceeded its statutory authority, and that LUBA

impermissibly limited her party status. To the extent that

the parties’ arguments overlap, we consider them together.

In its final opinion and order, LUBA explained that

the issues raised by the motion to dismiss required it to

interpret its own rule, OAR 661-010-0030(1), which, again,

provides:

“Unless the Board orders otherwise pursuant to ORS

197.830(10)(a), the petition for review together with four

copies shall be filed with the Board within 21 days after

the date the record is received or settled by the Board. See

OAR 661-010-0025(2) and 661-010-0026(6). The petition

shall also be served on the governing body and any party

who has filed a motion to intervene. Failure to file a petition

for review within the time required by this section, and any

extensions of that time under OAR 661-010-0045(9) or 661-

010-0067(2), shall result in dismissal of the appeal and for-

feiture of the filing fee and deposit for costs to the govern-

ing body. See OAR 661-010-0075(1)(c). Co-petitioners who

file a single Notice of Intent to Appeal shall be limited to a

single, joint petition for review.”

(Emphasis added.) The issues raised before us reduce to the

question whether LUBA’s interpretation of OAR 661-010-

0030(1) was plausible, which, as explained above, includes

an assessment of whether LUBA’s interpretation of its rule

was inconsistent with the rule or the rule’s context or any

other source of law.

We begin with Crowley’s contention that LUBA

does not have authority to dismiss an appeal once a notice

of intent to appeal has been timely filed. Crowley’s asser-

tion that LUBA did not have statutory authority to dismiss

422 Towey v. City of Hood River

the appeal is based on her interpretation of ORS 197.830(1)

and ORS 197.820. She argues that “ORS 197.830(1) specifies

that it is the timely filing of a [notice of intent to appeal] that

‘shall * * * commenc[e]’ the Board’s review proceeding * * *.

At that point, LUBA is directed in mandatory terms by ORS

197.820 to conduct review proceedings upon all filings that

comply with provisions of ORS 197.830.” She then asserts,

citing ORS 197.835, that LUBA is authorized by statute only

to affirm, reverse, or remand a land use decision and that

no statute specifies that LUBA may dismiss an appeal. And,

in addition, that ORS 197.820(4)(a) and ORS 197.830(13)(a)

authorize administrative management of appeals, but do not

provide authority to dismiss. In response, respondents argue

that LUBA has the implied power to dismiss an appeal as a

necessary part of carrying out the power expressly granted

to it by statute.

We turn to the statutes. To determine the intent of

the legislature, we use the statutory construction analysis

set out in PGE v. Bureau of Labor and Industries, 317 Or

606, 610-11, 859 P2d 1143 (1993), and State v. Gaines, 346

Or 160, 171, 206 P3d 1042 (2009). We examine the text in

context along with any legislative history to the extent it is

helpful. Gaines, 346 Or at 171-72. ORS 197.830 provides, in

part:

“(1) Review of land use decisions or limited land use

decisions under ORS 197.830 to 197.845 shall be com-

menced by filing a notice of intent to appeal with the Land

Use Board of Appeals.

“(2) * * * a person may petition the board for review of a

land use decision or limited land use decision if the person:

“(a) Filed a notice of intent to appeal the decision as

provided in subsection (1) of this section; and

“(b) Appeared before the local government, special dis-

trict or state agency orally or in writing.

“* * * * *

“(7)(a) Within 21 days after a notice of intent to appeal

has been filed with the board under subsection (1) of this

section, any person described in paragraph (b) of this sub-

section may intervene in and be made a party to the review

Cite as 321 Or App 414 (2022) 423

proceeding by filing a motion to intervene and by paying a

filing fee of $100.

“(b) Persons who may intervene in and be made a

party to the review proceedings, as set forth in subsection

(1) of this section, are:

“(A) The applicant who initiated the action before the

local government, special district or state agency; or

“(B) Persons who appeared before the local govern-

ment, special district or state agency, orally or in writing.

“(c) Failure to comply with the deadline or to pay the

filing fee set forth in paragraph (a) of this subsection shall

result in denial of a motion to intervene.

“* * * * *

“(11) A petition for review of the land use decision or

limited land use decision and supporting brief shall be filed

with the board as required by the board under subsection

(13) of this section.

“(12) The petition shall include a copy of the decision

sought to be reviewed and shall state:

“(a) The facts that establish that the petitioner has

standing.

“(b) The date of the decision.

“(c) The issues the petitioner seeks to have reviewed.

“(13)(a) The board shall adopt rules establishing dead-

lines for filing petitions and briefs and for oral argument.”

(Emphases added.)

A plain reading of those statutory provisions leads

to the conclusion that the legislature intended for LUBA to

consider petitions from a person who filed a notice of intent

to appeal and who otherwise has standing to seek review

of a land use decision. Subsection (1) of ORS 197.830 states

that the way to commence the review of a land use decision

is to file a notice of intent to appeal, and subsection (2) goes

on to specify that a person may petition for review if the

person filed a notice of intent to appeal. It follows from a con-

textual reading of the statute that the later subsections—

(11) and (12)—that use the words “petition for review” and

424 Towey v. City of Hood River

“the petitioner” are referring to the person and the petition

from subsections (1) and (2). Subsection (7), which addresses

intervention, is silent regarding any permissible filings—

other than a motion to intervene—by an intervenor.

In addition, ORS 197.820 provides that LUBA

“shall conduct review proceedings upon petitions filed in

the manner prescribed in ORS 197.830,” and that LUBA

“shall adopt rules governing * * * [t]he conduct of review pro-

ceedings brought before it under ORS 197.830 to 197.845.”

ORS 197.820(1), (4)(a). LUBA is also required to “adopt

rules establishing deadlines for filing petitions and briefs

and for oral argument.” ORS 197.830(13)(a). Further, ORS

197.835(1) provides, in part, that LUBA “shall review the

land use decision or limited land use decision and prepare

a final order affirming, reversing or remanding the land

use decision or limited land use decision.” We disagree

with Crowley’s contention that those statutory provisions

operate as a bar to LUBA having authority to dismiss an

appeal.

The Supreme Court has explained that

“[a]n agency is a creature of statute. It has no inherent

power, but only such power and authority as has been con-

ferred upon it by its organic legislation. This power includes

that expressly conferred by statute as well as such implied

power as is necessary to carry out the power expressly

granted.”

Ochoco Const. v. DLCD, 295 Or 422, 426, 667 P2d 499 (1983)

(citations omitted). Here, the legislature has instructed

LUBA to adopt rules to govern their proceedings and to

establish deadlines for filing petitions and briefs. It follows

that LUBA would have the implied power to establish conse-

quences for a party who did not follow the deadlines and pro-

cedures it had implemented. The express language in ORS

197.835(1)—that LUBA’s final order should affirm, reverse

or remand the land use decision—does not persuade us that

the legislature intended differently. Rather, that text simply

assumes an appeal that is properly before LUBA.

Crowley also contends that LUBA erred by “exceed-

ing its statutory authority when it added an additional

Cite as 321 Or App 414 (2022) 425

jurisdictional requirement that a petition for review must

be filed by a party other than an intervenor-petitioner.” She

argues that LUBA has jurisdiction as long as a statutorily

compliant notice of intent to appeal is in effect and until

the timeline has run for filing a petition for judicial review.

We do not understand LUBA’s ruling here to have added a

jurisdictional requirement, and we reject Crowley’s charac-

terization of it as such. Rather, LUBA explained in its final

opinion and order that

“ORS 197.820(4)(a) provides that ‘[LUBA] shall adopt rules

governing * * * [t]he conduct of review proceedings brought

before it under ORS 197.830 to 197.845.’ ORS 197.830(11)

and (13) delegate to LUBA authority to ‘adopt rules estab-

lishing deadlines for filing petitions and briefs.’ OAR 661-

010-0030(1) was enacted within that authority and requires

dismissal of this appeal. OAR 661-010-0005 provides that

failure to comply with the time limit for filing a petition

for review under OAR 661-010-0030(1) is not a technical

violation.”

LUBA applied its own rule that it had adopted in confor-

mance with the statutory mandate to adopt rules governing

the conduct of review proceedings and to establish deadlines

for filing petitions and briefs. When there was no timely

petition filed by the Towey petitioners in accordance with

the rules LUBA had promulgated, it dismissed the appeal.

Crowley also contends that LUBA limited her party

status by denying “her capacity to file a petition for review

and to present and argue assignments of error.” She argues

that because ORS 197.830(7) permitted her to intervene

and “be made a party” to the appeal that she should not

have been treated as “not equivalent” by LUBA. In its final

opinion and order, LUBA addressed Crowley’s contention

that as an intervenor, she is a party to the appeal under

ORS 197.830(7) and that LUBA could not construe OAR

661-010-0030(1) in contravention of that statute to prevent

her from submitting her case. LUBA concluded that “ORS

197.830(7) does not confer upon an intervenor independent

statutory standing to maintain an appeal that must other-

wise be dismissed under OAR 661-010-0030(1),” and dis-

agreed with Crowley that dismissal of the appeal violated

ORS 197.830(7). LUBA explained that

426 Towey v. City of Hood River

“[t]he statutory scheme for standing in ORS 197.830 differ-

entiates between a petitioner, who files a notice of intent to

appeal, and an intervenor, who files a motion to intervene.

ORS 197.830(1) provides that LUBA review is commenced

by filing a notice of intent to appeal. ORS 197.830(2)(a) pro-

vides that a person may petition the board for review if the

person filed a notice of intent to appeal. ORS 197.830(7)

permits certain persons to intervene in the review pro-

ceeding, and our rules permit intervenors to file briefs.

However, nothing in ORS 197.830 provides an intervenor

with a right to independently maintain an appeal where

our rules otherwise require that the appeal be dismissed.”

LUBA’s reasoning comports with our interpretation of ORS

197.830, as explained above, and we further agree with

LUBA’s observation that nothing in ORS 197.830 provides

Crowley with a right to independently maintain an appeal

when LUBA’s rules require dismissal.

Lastly, Towey petitioners and Crowley both assert

that OAR 661-010-0030(1) should have correctly been inter-

preted to consider Crowley’s “petition for review” as a fil-

ing that would qualify as the required filing under the rule.

LUBA explained its reasoning for concluding otherwise as

follows:

“We observe that ORS 197.830 refers to a petition for

review and supporting brief. See ORS 197.830(11) (‘A peti-

tion for review of the land use decision or limited land use

decision and supporting brief shall be filed with the board

as required by the board under subsection (13) of this sec-

tion.’); ORS 197.830(13)(a) (‘The board shall adopt rules

establishing deadlines for filing petitions and briefs and

for oral argument.’). Differently, LUBA’s applicable rules of

procedure refer to ‘the petition for review’ as the brief filed

by the petitioner.

“The text of OAR 661-010-0030(1) provides that ‘the

petition for review’ is due within 21 days after the date the

record is settled, that ‘[t]he petition shall also be served on

the governing body and any party who has filed a motion

to intervene,’ and that, if ‘a petition for review’ is not filed

on time, the appeal (not the petitioner) will be dismissed.

(Emphases added.) In a case with multiple petitioners, if a

petition for review is filed on a timely basis, perhaps signed

by only one petitioner, the appeal will not be dismissed. If,

Cite as 321 Or App 414 (2022) 427

however, no petitioner timely files a petition for review, the

appeal will be dismissed. OAR 661-010-0030(1); see also

OAR 661-010-0005 (failure to comply with the time limit

for filing a petition for review under OAR 661-010-0030(1)

is not a technical violation).

“Our conclusion that the phrase ‘a petition for review’

in OAR 661-010-0030(1) refers to a petitioner’s brief is

supported by ORS 197.830. ORS 197.830(11) refers to ‘[a]

petition for review,’ and ORS 197.830(12)(a) provides, ‘The

petition shall include a copy of the decision sought to be

reviewed and shall state * * * [t]he facts that establish that

the petitioner has standing.’

“Further support for our conclusion that OAR 661-

010-0030(1) refers to a petitioner’s brief, as opposed to an

intervenor-petitioner’s brief, is provided by the provision in

OAR 661-010-0030(1) that failure to timely file a petition

for review will result in forfeiture of the deposit for costs, an

expense incurred by petitioners, not intervenors-petitioners.

“OAR 661-010-0075 also serves to clarify the distinction

between petitioners’ petition for review and intervenor-

petitioner’s brief, and the appropriate remedy. OAR 661-

010-0075(1)(c) explains:

“ ‘If a record has been filed and a petition for review is

not filed within the time required by these rules, and

the governing body files a cost bill pursuant to this sec-

tion requesting forfeiture of the filing fee and deposit,

the filing fee and deposit required by OAR 661-010-

0015(4) shall be awarded to the governing body as costs

of preparation of the record. See OAR 661-010-0030(1).’

“OAR 661-010-0015(4) concerns the deposit for costs and

the filing fee for the notice of intent to appeal. Again, only

a petitioner pays the deposit for costs. In addition, only a

petitioner pays the filing fee for a notice of intent to appeal.

An intervenor-petitioner does not file a notice of intent to

appeal. An intervenor-petitioner pays a filing fee for inter-

vention under OAR 661-010-0050(3).”

(Footnote omitted.)

LUBA further explained:

“OAR 661-010-0010(11) provides, ‘”Party” means the

petitioner, the governing body and any person who inter-

venes as provided in OAR 661-010-0050. “Party” does

428 Towey v. City of Hood River

not include a state agency that files a brief under ORS

197.830(8) or an amicus participating under OAR 661-010-

0052.’ However, this definition does not mean that peti-

tioners, governing bodies, and intervenors are equivalent

within our rules. OAR 661-010-0030(1) provides that the

petition for review shall be filed with LUBA within 21 days

after the record is received or settled by LUBA and ‘served

on the governing body and any party who has filed a motion

to intervene.’ The plain language of that rule requires that

the brief filed under OAR 661-010-0030 be served on inter-

venors, distinguishing them from petitioners.”

(Footnote omitted.)

LUBA also pointed to additional rules that provide

contextual support for a distinction between petitioners

and intervenors in their rules. For example, OAR 661-010-

0075(1)(b) lists intervenors and petitioners separately as

potential prevailing parties:

“Costs may be recovered only for the items set forth in

this subsection.

“(A) If the petitioner is the prevailing party, the peti-

tioner may be awarded the cost of the filing fee.

“(B) If the governing body is the prevailing party * * *.

“* * * * *

“(D) If an intervenor under OAR 661-010-0050 or a

state agency under OAR 661-010-0038 is the prevailing

party, the intervenor or state agency may be awarded the

cost of the fee to intervene or to file a state agency brief.”

And OAR 661-010-0050(2) provides that a party may

intervene “on the side of the petitioner or the respondent.”

(Emphasis added.) Further, OAR 661-010-0050(6)(a) states

that “[i]f intervention is sought as a petitioner, the brief shall

be filed within the time limit for filing the petition for review,

and shall satisfy the requirements for a petition for review

in OAR 661-010-0030.” As LUBA observed, “[i]f intervention

is sought on the side of a petitioner and as a petitioner, it is

sought as an intervenor-petitioner. Intervenors-petitioners

do not become petitioners.” (Emphases in original.) LUBA

accordingly concluded “that the timely filing of intervenor-

petitioner’s brief does not cure the failure of petitioners to

Cite as 321 Or App 414 (2022) 429

timely file their petition for review.” In other words, regard-

less whether Crowley’s brief could be considered a petition

for review, it could not save the appeal because it was not

filed by a petitioner.

We have reviewed the context of these provisions

and conclude that LUBA plausibly interpreted OAR 661-

010-0030(1) to require dismissal of the appeal where no

petitioners filed a petition for review on time and where no

extension to the due date was obtained. We reject Towey

petitioners’ and Crowley’s arguments that amount to a dif-

ference in opinion as to how to interpret the rule. LUBA

is entitled to deference in the plausible interpretation of its

own administrative rules, and we therefore affirm.

Affirmed.