No. 661 December 20, 2023 557

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Peggy Sue JACOBUS, 

Judy Dahl, Ann Felber, 

and Kurt Knabke,

Petitioners,

v.

KLAMATH COUNTY 

and City of Chiloquin,

Respondents.

Land Use Board of Appeals

2023058; A182303

Argued and submitted November 8, 2023.

Charles W. Woodward, IV, argued the cause and filed the 

brief for petitioners.

Leah Samelson argued the cause for respondent City of 

Chiloquin. Also on the brief were Mark S. Bartholomew and 

Homecker Cowling, LLP.

No appearance for respondent Klamath County.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Affirmed.
558 Jacobus v. Klamath County

ORTEGA, P. J.

Petitioners seek judicial review of an order of the 

Land Use Board of Appeals (LUBA) that dismissed petitioners’ appeal to LUBA. We affirm.

On July 18, 2023, petitioners filed with LUBA a 

notice of intent to appeal (NITA) a land use decision made by 

the Klamath County Board of Commissioners (the county). In 

the NITA, petitioners listed the legal counsel of the county as 

“County Counsel.” On July 21, the day after LUBA received 

the NITA, LUBA issued an order explaining that petitioners had failed to list the name of the county’s legal counsel in the NITA, as required by OAR 661-010-0015(3)(f)(B).1

LUBA directed petitioners to file a corrected NITA and serve 

that corrected NITA on all persons entitled to be served 

under OAR 661-010-0015(2) within seven days of the order. 

The order further provided that, “[i]f a corrected NITA is not 

filed and served within seven days of the date of this order, 

[LUBA] will dismiss the appeal,” and cited Wendt v. City 

of Klamath Falls, 81 Or LUBA 266, aff’d, 304 Or App 874 

(2020). More than a month later, on August 25, LUBA issued 

its final order dismissing the appeal, because the deadline 

to file and serve a corrected NITA had passed, citing Green 

v. Linn County, ___ Or LUBA ___ (LUBA No 2021-068, 

Nov 9, 2021), Wendt, and Bruce v. City of Hillsboro, 32 Or 

LUBA 382 (1997), aff’d on other grounds, 159 Or App 495, 

977 P2d 435 (1999).

Petitioners seek judicial review of that order.2 We 

may reverse or remand LUBA’s order only if we conclude that 

it is “unlawful in substance or procedure.” ORS 197.850(9)(a).

1 OAR 661-010-0015(3)(f)(B) provides:

“(3) Contents of Notice: The Notice shall be substantially in the form set 

forth in Exhibit 1 and shall contain:

“* ****

“(f) The name, address and telephone number of each of the following:

“* ****

“(B) The governing body and the governing body’s legal counsel[.]”

2 We note that petitioners have included documents with their opening brief 

that were not made part of the record on judicial review. We do not consider those 

extra-record documents. See ORS 197.850(8) (“Judicial review of an order issued 

under ORS 197.830 to 197.845 must be confined to the record. The court may not 

substitute its judgment for that of the board as to any issue of fact.”).
Cite as 329 Or App 557 (2023) 559

Petitioners first argue that LUBA’s order is unlawful 

in substance because LUBA misinterpreted OAR 661-010-

0015(3)(f)(B) to require petitioners to list a specific attorney. 

We reject petitioners’ argument because LUBA’s interpretations is plausible and not inconsistent with the text or context 

of the rule or any other source of law. Maguire v. Clackamas 

County, 250 OrApp 146, 162, 279 P3d 314 (2012) (“LUBA is entitled to deference in the interpretation of its own administrative rule if its interpretation is plausible and not inconsistent 

with the rule, the rule’s context, or any other source of law.”). 

The legislature has directed LUBA to adopt rules prescribing 

the “form and manner” in which a NITA shall be served and 

filed. ORS 197.830(9) (“The notice shall be served and filed in 

the form and manner prescribed by rule of the board[.]”). As 

relevant here, those rules include OAR 661-010-0015(3)(f)(B), 

which provides that a NITA must include the “name” of 

the governing body’s legal counsel; OAR 661-010-0015(2), 

which requires service of the NITA on “the governing 

body, the governing body’s legal counsel, and all persons 

identified in the [NITA] as required by subsection (3)(f) 

of this rule”; and OAR 661-010-0015(3)(i), which requires 

proof of service “upon all persons required to be named in 

the [NITA].” Given that text and context, it is a plausible 

interpretation of OAR 661-010-0015(3)(f)(B) that petitioners 

were required to identify the name of the county’s legal counsel, serve that person with the NITA, and serve a NITA that 

contains the name of that legal counsel on all other required 

persons. Petitioners have not identified anything in the text 

or context of the rule or any other source of law that is inconsistent with LUBA’s interpretation.

Petitioners next argue that LUBA could not dismiss 

the appeal because, under LUBA’s rules, a technical error is 

not a basis for dismissal unless there was demonstrated prejudice to a party’s substantial rights. See OAR 661-010-0005 

(“Technical violations not affecting the substantial rights 

of parties shall not interfere with the review of a land use 

decision or limited land use decision.”). Petitioners argue 

that failing to include the name of a specific county counsel 

is a technical error, and that there was no prejudice to the 

county, because the county and the county counsel’s office 

were served with the NITA.
560 Jacobus v. Klamath County

We also reject that argument. Important to our 

decision is that the basis for LUBA’s dismissal of the appeal 

was petitioners’ failure to respond to LUBA’s order requiring petitioners to file and serve a corrected NITA. As demonstrated by LUBA’s reliance on its cited decisions in the two 

orders, petitioners’ failure to file and serve a corrected NITA 

when ordered to do so was not viewed by LUBA as a technical violation but as a jurisdictional defect in service on all 

required persons.3

 With that frame of the issue, petitioners’ 

argument loses its persuasive force. Petitioners have not 

explained why it is legal error for LUBA to conclude that 

petitioners’ failure to comply with its order is not a “technical violation” under OAR 661-010-0005, or why the failure to 

serve the NITA on all required persons—including a named 

county counsel—is not an issue of jurisdiction, as LUBA has 

consistently viewed it. We are required to defer to LUBA’s 

plausible interpretations of its own rules, and it is plausible 

and not inconsistent with the text or context of the rule or 

any other source of law that petitioners’ failure to correct 

and serve the NITA as ordered was not a technical violation 

under OAR 661-010-0005.

Finally, petitioners argue that LUBA violated their 

procedural due process rights by using first-class mail to 

serve the order requiring petitioners to file a corrected 

NITA. Petitioners argue that, particularly given the short 

timeframe for a response to the order, LUBA was required 

to provide notice by email. We summarily reject that 

3 See Green, ___ Or LUBA at ___ (LUBA No 2021-068, Nov 9, 2021) (slip op 

at 4) (granting intervenor’s motion to dismiss because petitioner failed to serve 

a copy of the original and amended NITAs on intervenor; stating that “LUBA 

will dismiss an appeal if, after being provided by LUBA with the opportunity 

to serve all parties entitled to NITA service, petitioners continue to fail to serve 

all parties entitled to NITA service”); Wendt, 81 Or LUBA at 268 (dismissing 

appeal after petitioner failed to correct and properly serve the NITA after being 

ordered by LUBA to do so or the appeal would be dismissed; explaining that 

failure to serve the NITA on all persons as required by OAR 661-010-0015(2) is 

jurisdictional); Bruce, 32 Or LUBA at 386-87 (granting city’s motion to dismiss; 

concluding it lacked jurisdiction because of petitioner’s failure to serve parties 

other than the city, as required by OAR 661-010-0015(2), after being ordered to 

do so; explaining that late service is a technical violation while failure to serve is 

jurisdictional). See also Towey v. City of Hood River, 321 Or App 414, 424, 516 P3d 

738 (2022) (holding that, based on the instruction from the legislature to LUBA 

to adopt rules governing its proceedings, “[i]t follows that LUBA would have the 

implied power to establish consequences for a party who did not follow the deadlines and procedures it had implemented”).
Cite as 329 Or App 557 (2023) 561

argument, because LUBA’s use of first-class mail was constitutionally sufficient. See, e.g., Mullane v. Central Hanover 

Bank & Tr. Co., 339 US 306, 314, 70 S Ct 652, 94 L Ed 865 

(1950) (due process requires that interested parties receive 

“notice reasonably calculated, under all circumstances, to 

apprise parties of the pendency of the action and afford 

them an opportunity to present their objections”).

Affirmed.