No. 133 February 20, 2025 165
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Kathryn PHILLIPS,
Petitioner,
v.
POLK COUNTY
and David Harris,
Respondents.
Land Use Board of Appeals
2024031;
A185891
Argued and submitted January 6, 2025.
Kathryn J. Phillips argued the cause and filed the brief
for petitioner, pro se.
Morgan Smith argued the cause and filed the brief for
respondent Polk County.
No appearance for respondent David Harris.
Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
MOONEY, S. J.
Affirmed.
166 Phillips v. Polk County
MOONEY, S. J.
Petitioner seeks judicial review of the final order
and opinion of the Land Use Board of Appeals (LUBA) dismissing her appeal of the decision of the Polk County Board
of Commissioners that vacated an unimproved county right
of way that bisects her property. LUBA dismissed the appeal
because petitioner did not file a petition for review. It did not
reach the merits of petitioner’s appeal.
We have jurisdiction to review LUBA’s final order
and opinion under ORS 197.850. Our review is confined
to the record that was before LUBA when it made its decision. ORS 197.850(8). We may reverse or remand only when
we find LUBA’s order to be unlawful, unconstitutional, or
unsupported by substantial evidence in the record as to facts
found by LUBA. ORS 197.850(9). The facts relevant to our
decision are undisputed and procedural. The sole question is
whether it was error for LUBA to dismiss petitioner’s appeal
on the procedural ground that she failed to file a petition for
review. Although petitioner identifies the LUBA order and
opinion as the subject of her petition for judicial review, she
does not explain why it was error for LUBA to dismiss her
appeal of the county’s decision to vacate the right of way
after she failed to file a petition for review with LUBA. The
arguments contained within petitioner’s opening brief focus
instead on the merits of the underlying county decision to
vacate. But the decision of the county to vacate the subject right of way is not before us and we express no opinion
about the propriety of that decision. We note that petitioner
appeared before us at oral argument and suggested that she
may have had some difficulty complying with LUBA’s briefing schedule. We appreciate petitioner’s candid acknowledgment at that time that she, in fact, did not file a petition
in her LUBA appeal. However, she offered no authority or
argument—in her brief or at oral argument—as to why
that difficulty rendered LUBA’s order dismissing her appeal
erroneous, and we are aware of none. LUBA’s decision to
dismiss petitioner’s appeal after she failed to file the petition as required by OAR 661-010-0030(1) was appropriate.
See Towey v. City of Hood River,
