Posted by: Patricia Salkin | January 18, 2021

OR Sup Court Holds Mailing of Petition for Judicial Review of Land Use Decision via First-Class Mail Constituted Mailing via a Class of Delivery Calculated to Achieve Delivery Within Three Calendar Days

This post was authored by Matthew Loescher, Esq.

In this case, petitioner argued that the Court of Appeals wrongly dismissed her petition for judicial review of an order of the Land Use Board of Appeals (LUBA) as untimely when she had mailed the petition by ordinary first-class mail on the last day of the appeals period. Specifically, the petition for judicial review was delivered to the Appellate Court Administrator on Monday, July 15, the date estimated on the USPS receipt. The Appellate Commissioner issued an order dismissing the petition as untimely, citing that it had been received by the court more than 21 days from the date that the LUBA order had been served.

 Respondent contended that when ORS 19.260 (1)(a)(B) referred to a “class of delivery calculated to achieve delivery within three calendar days,” it meant a “known” and “objective” delivery standard assigned to the class as a whole by the delivery service—rather than the USPS service standards used by petitioner. Respondent claimed that those service standards were “subjective” and uncertain, as they provided varying estimates of delivery times based on individual circumstances.

 The court found that while ORS 19.260(1)(a)(B) requires objective and consistent standards that are formally offered or made known to the public by the USPS or commercial delivery service, nothing in the provision suggested that only the “1-3 business day” bullet point entry provided on the USPS website would qualify. Despite those service standards not being publicized by the USPS to the same extent as the “1-3 business day” standard, they were available to the public in the Code of Federal Regulations and on USPS public websites. As such, the order of the Court of Appeals was reversed, and the case was remanded to the Court of Appeals for further proceedings.

Gould v Deschutes County, 367 OR 427 (12/31/2020)

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