The letter also informed petitioner that, if he wanted to challenge the fee request, it would be necessary to file objections. Respondent then filed an amended affidavit providing additional information on the fee request. Petitioner filed an objection to the fee request asserting that the fee request was untimely, that he did have probable cause to bring the appeal, and that the fee request was based on false and exaggerated facts and was not sufficiently detailed. Petitioner first argues that LUBA erred as a matter of law in issuing the order allowing respondent's request for attorney fees. In this assignment of error, petitioner's specific contention is that respondent's request for fees was untimely under LUBA's rules and, because of that, LUBA had no discretion to award attorney fees.
Petitioner is correct that respondent's fee petition was one day late.
Nonetheless, LUBA has construed its rules to authorize it to exercise its discretion to allow untimely filings under certain circumstances. The rules shall be interpreted to carry out these objectives and to promote justice. 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. LUBA has considered late filings, such as this, to be technical violations and implicitly did so here by allowing the fee request. LUBA's interpretation of its rule is not inconsistent with the text or context of the rules and is not otherwise unlawful.