Church project appeal filed late
Friends of Jacksonville miss deadline after city notice lists wrong date for appealing to LUBA
JACKSONVILLE ' A missed filing deadline may have cost the Friends of Jacksonville their appeal of the First Presbyterian Church's expansion project.
The community group opposes the 18,163-square-foot church expansion planned for 10 acres near the 40-home Pheasant Meadows subdivision.
On Jan. 7, the council granted the church a conditional use permit. Within days, Friends stated its intention to take objections to the Land Use Board of Appeals.
However, First Presbyterian Church attorney Alan Harper said Friends' attorney Liam Sherlock missed the filing deadline by three days 'making the appeal moot.
We expected them to appeal, but we were certainly surprised when they didn't appeal in the time necessary, said Harper.
Sherlock said the LUBA filing deadline was defined as Feb. — in a notice sent by the city. Sherlock filed the Friends appeal on Jan. 31.
Sherlock said he not only relied upon the information presented by the city, he said the city was late in sending the required notification.
They waited a week past the decision date to notify the affected and interested parties, said Sherlock.
City Administrator Paul Wyntergreen admits the city mis-stated the filing deadline in the following excerpt:
You must appeal this decision within 21 days of the date it is mailed. This decision is being mailed on Jan. 13, 2003, and the LUBA appeal period will expire on Feb. 3, 2003.
Wyntergreen says there was no intent to stall the notification process or mislead anyone.
(Jan. 13) just happened to be the date we got all the information back from our attorney, said Wyntergreen. Our Notice of Decision was based upon the legal advice of the city attorney (Kurt Knudsen), based upon his interpretation of the law.
Harper says the deadline clock actually started ticking from the city's Jan. 7, 2003, decision. That date made Sherlock's motion due on Jan. 28, instead of Feb. 3.
Harper says he filed an intervention and a motion to dismiss with LUBA as soon as he saw that Sherlock had missed the earlier deadline.
Harper says city error is no defense against missing statutory deadlines.
The rules are the rules and you can't rely on the city's notification, he said.
Friends spokesperson Trish Bowcock said the delay in the city's notification process combined with deadline errors and Harper's speedy filing of a motion to dismiss has her concerned.
Either the city was correct in its notice and the church's motion is without merit, or the city was wrong, says Bowcock. If it was wrong, the city has an obligation to its citizens to right the wrong and allow this matter to move forward on the real issues which are safety, traffic and appropriate land use.
Sherlock says while he believes the city is at fault with their deadline misinformation, he believes the church is trying to derail a legal appeals process and capitalize on a the misinformation given by the city.
We believe their motion to dismiss should be denied to maintain the due process rights of the citizens of Jacksonville, said Sherlock. At this point, if this church gets built, it will be built upon a denial of due process.
Sherlock said he has until Feb. 18 to file his response to Harper's dismissal motion.
LUBA administrative assistant Kristi Seyfried says the three-attorney LUBA panel will determine the merits of the motions and render their decision within 60 days of receipt of Sherlock's response.
Sherlock says if LUBA upholds the church's motion to dismiss, he'll file an appeal with the Court of Appeals.
Reach reporter Sanne Specht at 776-4497 or e-mail