OREGON JUDICIAL DEPARTMENT Appellate Court Records Section, 503-986-5555 INFORMATION ON FILING A PETITION FOR JUDICIAL REVIEW (LAND USE BOARD OF APPEALS) In response to your request, we have enclosed information on how to file a petition for judicial review and the forms necessary to do so. GENERAL INFORMATION 1. Please understand that filing and pursuing a case with the appellate court is technical legal work. Read all of these instructions, completely and carefully, because you must follow the relevant Oregon Revised Statutes (ORS) and the Oregon Rules of Appellate Procedure (ORAP). We strongly urge you to consider use of an attorney to help you with your case. The Supreme Court, Court of Appeals, or Appellate Court Administrator's Office cannot change the rules for you because you act as your own lawyer. You will have to follow all the rules and meet all deadlines, without exception. Provisions of ORS Chapter 197.850 apply to Land Use Board of Appeals (LUBA) cases. ORAP 4.05 to 4.40 applies to Court of Appeals review of administrative agency cases in general. ORAP 4.60 applies specifically to Land Use Board of Appeals cases. You may wish to access reference materials, including the ORS or ORAP online at www.courts.oregon.gov/programs/acrs/Pages/default.aspx . To access the ORS or ORAP, go to http://www.courts.oregon.gov/programs/acrs/resources/Pages/default.aspx and choose "Oregon Revised Statutes (ORS)", or choose "Oregon Rules of Appellate Procedure (ORAP)". The ORS and ORAP are also available in law libraries and some public libraries. If you need additional information about procedures, you may call the Records Section at 503-986-5555; however, while the staff can try to answer procedural questions, staff cannot provide legal advice. In other words, they will not substitute in any way for a lawyer222s assistance. If you wish to seek legal advice, you may contact the Oregon State Bar at 503-620-0222 or toll free in Oregon at 1-800-452-8260 for information as to appellate attorneys. You may contact the Lawyer Referral Service at 503-684-3763, or toll free in Oregon at 1-800-452-7636. 2. Generally, you will not be able to introduce new evidence to the appellate court. The court may review the material (testimony, documents, exhibits, etc.) that was received into the record with the Land Use Board of Appeals, provided that you designate that American LegalNet, Inc. www.FormsWorkFlow.com material in your petition for judicial review. 3. Motions: A "motion" is any request by a party that the court take some action. All motions must be served on the adverse party and the adverse party has 14 days from the date a motion is filed to serve a response. A response allows the court to consider the adverse party222s point of view in deciding what action to take concerning the motion. See ORAP 7.05 to 7.30 for rules concerning motions. ORAP 7.30 lists the motions that toll the time for filing the next event. The court will usually issue a decision on a motion in the form of a written order. 4. Any document filed with the Court of Appeals must be served on all parties to the case. See ORAP 1.35(2). The document being filed must include a statement of service (223proof of service224) which states that the document has been served on all parties. WHERE TO FILE To request judicial review of a Land Use Board of Appeals decision, you must file an original petition for judicial review with the Court of Appeals by submitting it to the following address: ATTN: Records Section Appellate Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 WHEN TO FILE A petition for judicial review from a Land Use Board of Appeals order must be filed within 21 days of the date the order was mailed to you. Unless a petition for judicial review is filed and served within the time required by statute, the Court of Appeals will not be able to consider your case. "Filed" means that the petition must either 1) be in the possession of the Office of the Appellate Court Administrator on or before the date it is due, or 2) it must be mailed by certified or registered mail on or before the date it is due, with proof from the United States Post Office of such mailing date. See ORS 19.260(1) and ORAP 1.35. (If you choose option 2, be sure to retain the proof of mailing, because you may be asked to send it in if the timeliness of your appeal is ever questioned). 223Served224 means that an exact copy of the original document(s) that is being filed at the Court of Appeals, is mailed or personally delivered to all other necessary parties and participants according to the applicable statutes. Some statutes require service to be accomplished by certified or registered mail. HOW TO FILE 1. File an original petition for judicial review with the Court of Appeals. You should attach a copy of the Land Use Board of Appeals decision that you wish to have reviewed to the petition for judicial review. 2. You must pay a $391.00 filing fee. See ORS 21.010; HB 2795. Make checks payable to: 223State Court Administrator.224 Failure to pay the filing fee can eventually result in dismissal of your appeal (ORAP 1.20(4)). However, you may be eligible to receive a waiver (elimination) of the fee, or you may be eligible to defer (delay) payment of the American LegalNet, Inc. www.FormsWorkFlow.com fee. To have the court determine whether you may be entitled to such waiver or deferral, you must complete a 223Motion and Declaration for Waiver or Deferral of Fees,224 and file it with the Court of Appeals. You can download the motion and instructions at: http://www.courts.oregon.gov/programs/acrs/forms/Pages/filing-fee.aspx . If the court defers the filing fee, you still owe it. If it is not paid by the time the appeal is complete, the unpaid filing fee will become a judgment against you. See ORS 21.605(1)(c). You must file the motion along with the petition for judicial review. Do not include payment if you file the motion. 3. You must complete a Certificate of Filing that indicates the date that you filed your petition, and the method that you used to file your petition. 4. You must serve copies of the petition and all attachments that you file with the Court of Appeals on all other parties to the LUBA proceeding, or to their lawyers if they are represented by counsel, via certified or registered mail (ORS 197.850(4). See ORAP 1.35(2). However, you do NOT need to serve the Declaration for Waiver or Deferral of Fees and any documents pertaining to government assistance such as food stamps, Social Security Income, Oregon Health Plan eligibility, Temporary Assistance to Needy Families, etc. In LUBA cases, the other parties will include the Land Use Board of Appeals and the Attorney General, as well as all other parties; they will be listed on the Land Use Board of Appeals decision. The document(s) being filed must also include a certificate (or proof) of service, that identifies everybody you have served. A certificate of service is also enclosed for your use. WHAT HAPPENS NEXT? 1. The record is prepared: After you file and serve the petition for judicial review, the Land Use Board of Appeals has 7 days in which to prepare and file the agency record (the transcript of the testimony of the hearing, copies of documents that were received into evidence, etc.). 2. Briefs are prepared: A "brief" is a statement of your side of the case. You must follow the format required by the rules. See ORAP 5.05 through 5.80 for more information about the procedures concerning briefs. Sample briefs are available at: http://www.courts.oregon.gov/programs/acrs/briefs-motions/Pages/briefs.aspx . 3. You are required to file an "opening brief224 within 21 days of the date that the petition for judicial review is filed. The opening brief must include a statement of the facts of the case. Each statement of fact must refer to the record and show where that fact appears. If it does not, the court may strike the entire brief or disregard your argument. Appeals are for the purpose of reviewing claimed legal errors committed by the agency in rulings on motions or in the final decision. Appeals are not for the purpose