Choban v. Washington County

WARREN, P. J. Petitioner seeks review of LUBA’s order affirming in part and remanding in part respondent Washington County’s decision approving an application by respondent Washington County Department of Land Use and Transportation to construct a road across a floodplain. Both respondents have moved to dismiss the petition for judicial review on the ground that petitioner did not serve the petition on them by registered or certified mail, as required by ORS 197.850(4). Respondents do not contend that they did not receive actual service within the period allowed by ORS 197.850(3). They argue only that the failure to follow the prescribed method of service is a jurisdictional defect. ORS 197.850 provides, in part: “(3)(a) Jurisdiction for judicial review of proceedings under ORS 197.830 to 197.845 is conferred upon the Court of Appeals. Proceedings for review shall be instituted by filing a petition in the Court of Appeals. The petition shall be filed within 21 days following the date the board delivered or mailed the order upon which the petition is based. “(b) Filing of the petition, as set forth in paragraph (a) of this subsection, and service of a petition on all persons identified in the petition as adverse parties of record in the board proceeding is jurisdictional and may not be waived or extended. “(4) The petition shall state the nature of the order the petitioner desires reviewed. Copies of the petition shall be served by registered or certified mail upon the board, and all other parties of record in the board proceeding.” Respondents understand the method of service described in subsection (4) to be incorporated into the jurisdictional requirements of subsection (3)(b), although the latter provision by its terms makes only the fact of service jurisdictional. That understanding of the statute is not borne out by the pertinent authority. In EastMcAndrews Neighborhood v. City of Medford, 104 Or App 280, 800 P2d 308 (1990), rev den 311 Or 150 (1991), we denied the respondent’s motion to dismiss, which was made on the ground that the petitioner had not served the petition on LUBA, as required by ORS [216] 197.850(4). We concluded that ORS 197.850(3), the subsection that specifies what is jurisdictional, refers to service on adverse parties as a jurisdictional requirement, but does not state that the failure to serve LUBA pursuant to subsection (4) is a jurisdictional defect. In this case, respondents are “adverse parties.” East McAndrews is nevertheless on point. Its rationale is that requirements that are set forth in subsection (4), but that do not also appear in subsection (3), are not jurisdictional necessities under the statute. Like the requirement of service on LUBA, the specification that service is to be by registered or certified mail appears in subsection (4), and is not included in subsection (3). Respondents’ argument is also contrary to Oregon Supreme Court cases construing analogous statutes. In Stroh v. SAIF, 261 Or 117, 118, 492 P2d 472 (1972), the court defined the question before it as being “whether the circuit court acquires jurisdiction if the notice required by ORS 656.298(3) is sent and received by ordinary mail rather than by registered or certified mail.” At the time, ORS 656.298(3) provided, in relevant part: “The judicial review shall be commenced by serving, by registered or certified mail, a copy of a notice of appeal on the board and on the other parties who appeared in the review proceedings, and by filing with the clerk of the circuit court the original notice of appeal with proof of service indorsed thereon.” The court concluded in Stroh: “The effect of the statute is to make a notification by registered or certified mail effective even though it is not received. But it does not follow that the failure to certify or register the notification renders it ineffective where it is actually received by the noticee. If the statute is not complied with, the rule is the same as it is where there is no statute providing for notice by mail. As we noted above, in such case, although the deposit of the notification in the mail is not effective in itself, the receipt of the notification constitutes legal notice. “In the present case if the interested parties had not actually received the mailed notification, plaintiffs failure to send by certified or registered mail would have conclusively established that legal notice had not been given. Proof that [217] plaintiff had mailed the notification would be irrelevant. But the evidence establishes that the notification sent by plaintiff was actually received. Under these circumstances the notice requirement was satisfied.” 261 Or at 120. (Footnote omitted.) Unlike ORS 197.850(3), ORS 656.298(3) does not expressly use the word “jurisdictional.” However, in Zurich Ins. Co. v. Diversified Risk Management, 300 Or 47, 706 P2d 178 (1985), the court construed the requirement of service on the parties in ORS 656.298(3) as being jurisdictional.1 The court in Zurich also discussed Stroh and found it to be distinguishable, because the claimant in Zurich had not given timely actual notice to the opposing party. However, Zurich does not disturb Stroh as authority, and appears to reaffirm it. The opinion in Zurich concludes: “The requirements of ORS 656.298(3) are jurisdictional and [the opposing party] did not get actual notice or notice by registered or certified mail within [the allowable time].” 300 Or at 51. (Emphasis supplied.) The service in this case fits precisely within the Stroh rule. We deny the motions to dismiss. On the merits, we affirm LUBA’s decision without discussion. Motions to dismiss denied; affirmed. Footnotes [1] The statute had been amended between the times of the decisions in Stroh and in Zurich, but not in respects that were pertinent to the issues in those cases or in this one. The dissent suggests that that statute differs from ORS 197.850, in that the latter specifies the method of service and makes service jurisdictional. We disagree with that distinction. ORS 656.298(3) also specifies the method of service and the court in Zurich held that the requirements of ORS 656.298(3) are also jurisdictional.