LUBA Headnotes Section 27.5.5

Transcript

1 27.5.5 Procedures/Rules – Briefs – Reply. While LUBA’s rules do not provide for a reply to a response to motions, LUBA’s rules also do not prohibit such a reply, and LUBA’s practice is to consider such replies to the extent they address new issues raised in the , 76 Or LUBA 77 (2017). McLaughlin v. Douglas County response. Briefs – Reply . 27.5.5 LUBA Procedures/Rules While OAR 660 - 010 - 0039 suggests – uld be made in a motion that is separate from the reply that a request to file a reply brief sho brief itself, LUBA’s rule does not expressly require that the request be made in a separate motion, and where the first paragraph of a petitioner’s reply brief is in substance a request ply brief, LUBA will consider that request as the motion. DLCD v. City of to file the re 76 Or LUBA 130 (2017). Klamath Falls, Reply Briefs – . Where mootness is at issue, the 27.5.5 LUBA Procedures/Rules – eadings or can be updated jurisdictional arguments tend to evolve over the course of the pl by more recent events. Where intervenor’s reply memorandum adds a new argument to its motion to dismiss on the basis of mootness that the appeals are moot based on a letter the — — oners have responded to that new intervenor recently sent to a state agency and petiti argument in a motion to strike, LUBA will consider both the reply memorandum and petitioners’ countervailing arguments in resolving the pending motion to dismiss. Bishop v. Deschutes County , 76 Or LUBA 515 (2017). 27.5.5 LU BA Procedures/Rules – Briefs – Reply . Where intervenor applied for, and received, two consecutive land use compatibility statements (LUCS), and argues it has now abandoned any reliance on the first LUCS decision, and instead has chosen to proceed with lopment pursuant to the second LUCS decision, the intervenor’s current intent does deve not necessarily render the first LUCS decision ineffective. Unless and until the local government takes action to withdraw, revoke, or supersede the first LUCS decision, it remains as a potential basis for intervenor to proceed with development based on the LUCS as a final and binding county decision, and is therefore not moot. Bishop v. Deschutes , 76 Or LUBA 515 (2017). County – Briefs – 27.5.5 LUBA Procedures/Rules Reply. LUBA routinely allows reply briefs to respond to waiver arguments and a reply brief is the preferable way to respond to waiver arguments so that the issue that is the subject of the waiver argument and the precise places in the record where petitioner believes the issue was raised can be clearly identified. Long , 75 Or LUBA 390 (2017). v. City of Tigard 27.5.5 LUBA Procedures/Rules – Briefs – Reply. LUBA will consider a reply to a response to record objections, where the reply is limited to legal arguments raised in the response to the objections, and does not state additional record objections. Central Oregon Landwatch v. Deschutes County , 74 Or LUBA 638 (2016). Failure to comply with OAR 661 27.5.5 LUBA Procedures/Rules Briefs – Reply. – - 010 - 0030(4), which requires that the petition for review demonstrate that the issues raised in the assignme nts of error were preserved during the proceedings below, is not a basis to reject the assignment of error or refuse to consider a reply brief that responds to a waiver

2 challenge, absent a showing that noncompliance with OAR 661 - - 0030(4) prejudices 010 r parties’ substantial rights or substantially impedes LUBA’s review. Wal Mart Stores, othe - , 72 Or LUBA 1 (2015). Inc. v. City of Hood River Briefs – Reply. Where a city asserts for the first time 27.5.5 LUBA Procedures/Rules – viously unchallenged finding is an additional basis for denial, in its response brief that a pre such an assertion constitutes a new matter, sufficient to permit a reply brief under OAR 010 - 0039. 661 , 72 Or LUBA 163 (2015). - Sage Equities, LLC v. City of Portland les – Briefs – 27.5.5 LUBA Procedures/Ru Reply. Where a city asserts for the first time in its response brief that petitioners should have proposed conditions to avoid denial of their application, such an assertion constitutes a new matter, sufficient to permit a reply Sage Equities, LLC v. City of Portland 010 - 0039. - , 72 Or LUBA 163 brief under OAR 661 (2015). – 27.5.5 LUBA Procedures/Rules – Reply. LUBA will deny a motion to strike a Briefs reply brief that both objects to the reply brief and responds to the merits of the assertio ns in the reply brief, without distinguishing between the two. Stop the Dump Coalition v. Yamhill County , 72 Or LUBA 341 (2015). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Under OAR 661 - 010 - 0075(8), where a deadline for filing a brief falls on a holid ay, the filing must be performed on the next - day deadline for filing the reply brief fell on Thanksgiving, working day. Where the seven and the following day Friday all state offices were closed, including LUBA’s, the “next nday, so a reply brief filed on that Monday was timely working day” is the following Mo filed. , 72 Or LUBA 423 (2015). Kine v. City of Bend – Briefs – 27.5.5 LUBA Procedures/Rules Filing a reply brief on the date of oral Reply. argument, six days after the deadline for filing the reply b - 010 - 0039. rief, violates OAR 661 That violation is not a technical violation of LUBA’s rules, because it denies opposing SCAN v. City of Salem , parties a reasonable opportunity to prepare and submit their cases. 70 Or LUBA 468 (2014). 27.5.5 LUBA Procedur es/Rules – Briefs – Reply. LUBA will not allow a reply brief that does not respond to a “new matter” raised in the response brief, but merely seeks to provide Willamette Oaks, LLC v. City of surrebuttal to arguments raised in the response brief. Eugene , 67 Or LUBA 351 (2013). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. A reply brief cannot be used to advance a new challenge to a finding or portion of the decision that was unchallenged in the petition ssignment of error should be rejected for review. Where the response brief argues that an a due to failure to challenge some portion of the decision, such as an alternative finding, the reply brief is limited to arguing that it was unnecessary to assign error to the unchallenged finding or that failure to cha llenge that finding in the petition for review should not affect LUBA’s review of the assignment of error at issue. Waste Not of Yamhill County v. Yamhill County , 65 Or LUBA 142 (2012).

3 27.5.5 LUBA Procedures/Rules Briefs – Reply. Where a disputed reply brief, a motion – to strike and a motion to take evidence all revolve around an issue that is beyond LUBA’s scope of review and has no bearing on a basis for reversal or remand of the challenged Treadmill Joint Venture decision, LUBA will summarily deny the reply brief and motions . , 65 Or LUBA 213 (2012). v. City of Eugene Briefs 27.5.5 LUBA Procedures/Rules Reply. LUBA will accept a reply brief that – – responds to a local government’s argument that the petition for review failed to assign error al government’s failure to provide DLCD with post - adoption notice of the to the loc decision as required by ORS 197.610(1). However, to the extent the reply brief includes arguments that purport to advance a new assignment of error or new basis for reversal or , LUBA will not consider such arguments. Conte v. City of Eugene , 65 Or LUBA remand 326 (2012). – Briefs – Reply. The OAR 661 - 27.5.5 LUBA Procedures/Rules - 0039 seven day 010 deadline for a petitioner to a reply brief is not measured from the deadline for filing respondent’s response brief; it is measured from the date the response brief is actually filed. Gravatt v. City of Portland , 62 Or LUBA 382 (2011). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. A dispute raised in the response brief over the nature of an assignment of error and LUBA’s scope of review over that assignment , 61 Or LUBA of error is an appropriate subject for a reply brief. Barnes v. City of Hillsboro 375 (2010). – Briefs – Reply. When a local government argues in its 27.5.5 LUBA Procedures/Rules response brief that a petitioner is precluded from advancing particular assignments of error because the local government ruled below that the issues presented in those as signments of error were not preserved for the local appeal, a petitioner may file a reply brief responding to the potentially “new matter” that the assignments of error are waived, but a petitioner may not use the reply brief as a vehicle to allege that th e local government erred Citizens for Responsible in limiting the issues it considered during the local appeal. Development v. City of The Dalles , 60 Or LUBA 12 (2009). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. While a reply brief is appropriate to r espond to an argument that an assignment of error should be denied because petitioner failed to challenge an alternative finding, the reply must be limited to arguments as to why it was unnecessary to assign error to the alternative findings. The reply bri ef may not be used to challenge the alternative findings on the merits. , 60 Or McGovern v. Crook County LUBA 177 (2009). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. An oral objection at oral argument to a reply brief that was filed more than three week s earlier is untimely, and will not be considered. Oh v. City of Gold Beach , 60 Or LUBA 356 (2010).

4 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Filing a reply brief approximately three s before oral argument weeks after the response briefs were filed and approximately 10 day 010 - 0039. Citizens for Responsible Development v. City of is not a violation of OAR 661 - , 59 Or LUBA 369 (2009). The Dalles Briefs – 27.5.5 LUBA Procedures/Rules As long as a reply brief does not merely – Reply. h arguments already made in the petition for review’s jurisdictional reiterate or embellis section, a reply brief is warranted to respond to a jurisdictional challenge in the response brief. In addition, a reply is appropriate to respond to an argument that a LUBA decision petitioner relies upon should be overruled. Bohnenkamp v. Clackamas County , 56 Or that LUBA 17 (2008). – Briefs – Reply. A reply brief is warranted to address 27.5.5 LUBA Procedures/Rules cludes findings on waiver arguments in a response brief even if the challenged decision in waiver and the petition for review includes an extensive discussion of the waiver issue, where the response brief provides additional justifications for the county’s waiver findings. , 56 Or LUBA 184 (200 8). VanSpeybroeck v. Tillamook County A reply brief is warranted where the 27.5.5 LUBA Procedures/Rules – Reply. – Briefs response brief argues that the county made a potentially dispositive alternative finding that petitioner failed to challenge. While the reply brief cannot assert a new assignment of error or a new challenge to the decision, the reply brief may respond to the issue of whether the identified finding is a dispositive alternative finding and whether petitioner’s failure to challenge that finding is fatal on that issue. VanS peybroeck v. Tillamook County , 56 Or LUBA 184 (2008). 27.5.5 LUBA Procedures/Rules Briefs – Reply. LUBA will not consider assignments – Porter v. Marion County , 56 Or of error that are raised for the first time in a reply brief. LUBA 635 (2008). UBA Procedures/Rules 27.5.5 L Briefs – Reply. Where respondents argue that issues – that are raised in the petition for review were not raised below and for that reason are waived, petitioner should respond to such waiver arguments in a reply brief or in their open ing argument at oral argument. Pete’s Mtn. Home Owners Assoc. v. Clackamas County , 55 Or LUBA 287 (2007). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. A reply brief submitted at oral argument approximately 14 days after the response briefs are filed is not timely filed as - 010 - 0039 and will not be allowed. required by OAR 661 , 55 Or Knapp v. City of Corvallis LUBA 376 (2007). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. A reply brief is warranted to reply to an argument in the response brief that some of the petitioner’s assignments of error are barred by issue or claim preclusion. Tualatin Riverkeepers v. ODEQ , 55 Or LUBA 569 (2008).

5 27.5.5 LUBA Procedures/Rules – Briefs – Reply. An arg ument in a response brief that LUBA should deny assignments of error alleging that findings addressing an approval criterion are inadequate, due to the petitioners’ failure to challenge other, allegedly related Wal - Mart Stores, Inc. v. City of findings, is a new matter that warrants a rep ly brief. , 54 Or LUBA 16 (2007). Gresham Briefs – Reply. Where the petition for review assigns 27.5.5 LUBA Procedures/Rules – error to a county’s failure to impose conditions of approval based on certain a forest plan, an argument in the response brief that the challenged recommendations in decision implicitly requires compliance with all recommendations in a forest plan is a “new matter” that warrants a reply brief. Central Oregon Landwatch v. Deschutes County , 53 Or 290 (2007). LUBA 27.5.5 LUBA Procedures/Rules Briefs – Reply. An argument in the response brief that – disputes petitioners’ interpretation of how two code provisions should be applied is not a “new matter” that warrants a reply brief. v. Deschutes County , Central Oregon Landwatch 53 Or LUBA 290 (2007). – Briefs – 27.5.5 LUBA Procedures/Rules Reply. Argument presented in a petitioner’s post oral argument letter is not timely submitted where that argument could have been - . included in the petitioner’s reply brief Rhinhart v. Umatilla County , 53 Or LUBA 402 (2007). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. An argument that petitioner failed to the local proceedings does not provide a basis to deny petitioner’s raise an issue during reply brief, although it may provide a basis to deny the related assignment of error. Anderson v. Coos County , 51 Or LUBA 454 (2006). – Briefs – Reply. A repl 27.5.5 LUBA Procedures/Rules y brief that is filed one day after oral argument and nine days after the response brief is filed is not filed “as soon as possible” Jacobsen v. City of - - 0039. after the response brief is filed, pursuant to OAR 661 010 Winston , 51 Or LUBA 602 (2006). 27.5. 5 LUBA Procedures/Rules – Briefs – Reply. LUBA will not consider an argument that is presented for the first time in petitioner’s reply brief, where that argument is not Frewing v. City of presented in response to a new issue raised in the respondent’s brief. Tigard , 50 Or LUBA 226 (2005). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Where a local code imposes a reduced mitigation obligation as the percentage of all trees on the property with a diameter over 12 nment does not err is allowing an inventory of inches to be saved increases, a local gover trees to be retained and removed to utilize whole numbers when measuring the diameter of trees to be removed and trees to be saved. Frewing v. City of Tigard , 50 Or LUBA 226 (2005).

6 27.5.5 LUBA Procedures/Rul es Briefs – Reply. LUBA will reject, as untimely and – - page reply brief with 39 pages of prejudicial to the parties’ substantial rights, a 15 appendices filed 14 days after the response brief and one day before oral argument. Kane v. City of Beaverton Or LUBA (512). , 49 Briefs – 27.5.5 LUBA Procedures/Rules LUBA will not strike a petitioner’s – Reply. reply to a respondent’s response to record objections where the reply addresses new issues raised in the response. Papadopoulos v. Benton County , 48 Or LUBA 634 (2004). – Briefs – Reply. A petitioner may not assert a new basis 27.5.5 LUBA Procedures/Rules for reversal or remand in the reply brief, or change the legal theory under which the petitioner seeks reversal or remand. c. v. City of Cove at Brookings Homeowners Asso , 47 Or LUBA 1 (2004). Brookings – Briefs – Reply. ORS 27.5.5 LUBA Procedures/Rules 197.835(4) does not excuse petitioner’s failure to raise issues of compliance with a code approval standard based on in the notice of hearing, where the staff report and the city’s failure to list that standard planning commission decision both cite and quote the standard as an applicable approval criterion, and petitioner offers no reason why issues of compliance with that standard could efore the city. not have been raised b Cove at Brookings Homeowners Assoc. v. City of Brookings , 47 Or LUBA 1 (2004). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Where a five - page reply brief is filed eleven days after intervenors’ brief and intervenors receive a copy approx imately 48 hours Friends of Yamhill before oral argument, intervenors’ substantial rights are not prejudiced. County v. Yamhill County , 47 Or LUBA 508 (2004). Briefs – 27.5.5 LUBA Procedures/Rules Reply. When a petition for review alleges a – ment committed multiple procedural errors that prejudiced substantial rights local govern and the response brief faults the petition for review for failing to demonstrate that each procedural error prejudiced substantial rights, a reply brief is warranted to respond to that assertion. , 46 Or LUBA 304 (2004). Naumes Properties, LLC v. City of Central Point 27.5.5 LUBA Procedures/Rules – – Reply. A reply brief filed 12 days after the Briefs response brief was filed, and four days after oral argument, is not filed “as soo n as possible” after the filing of the respondent’s brief, as required by OAR 661 - 010 - 0039. Cotter v. City of Portland , 46 Or LUBA 612 (2004). Briefs – 27.5.5 LUBA Procedures/Rules Reply. – Where a petition for review provides a bare or nominal statement of jurisdiction, a reply brief is generally warranted to respond to a jurisdictional challenge in the response brief, and LUBA’s resolution of the jurisdictional challenge is not limited to the specific bases for jurisdiction specified in the petition for review. Sievers v. Hood River County , 46 Or LUBA 635 (2004). – Briefs – 27.5.5 LUBA Procedures/Rules Reply. LUBA’s unwillingness to conduct an unaided search of a 40 - page reply brief to identify specifically the parts of the reply brief

7 that inappropriate ly go beyond responding “to new matters raised in the respondent’s brief” does not mean that additional legal theories for remand that are presented for the first time in the reply brief ripen into assignments of error or legal theories that are Lord v. City of Oregon City , 43 Or LUBA 361 properly p resented in a LUBA appeal. (2002). Briefs – Reply. Where the petition for review assumes – 27.5.5 LUBA Procedures/Rules - judicial in character and the response brief challeng that the challenged decision is quasi es that assumption, and the correct characterization of the challenged decision may affect LUBA’s analysis of petitioner’s challenge to the adequacy of the county’s findings, a reply brief is warranted to respond to the challenge in the response brief. Man ning v. Marion County , 42 Or LUBA 56. – Briefs – Reply. A reply brief filed immediately 27.5.5 LUBA Procedures/Rules prior to oral argument and almost a month after the response brief is filed is not filed “as soon - 010 0039, and will not be accepted if the as possible,” within the meaning of OAR 661 - al rights. failure to comply with the rule violates the opposing parties’ substanti Troy v. City of Grants Pass , 41 Or LUBA 112 (2001). – Briefs – Reply. 27.5.5 LUBA Procedures/Rules A reply brief that is filed immediately prior to oral argument will be rejected when, as a result of the timing of the filing, opposing ve no time to review the reply brief and prepare a response to it. parties ha Troy v. City of Grants Pass , 41 Or LUBA 112 (2001). – 27.5.5 LUBA Procedures/Rules Briefs – Reply. A reply brief is warranted where an assignment of error argues that a code provision was m isinterpreted, thus invoking LUBA’s review under ORS 197.835(9)(a)(D), and a response brief assumes the merits of that assignment but argues that it should nonetheless fail because petitioner has not made additional allegations of prejudice to petitioner’s substantial rights that are relevant only if LUBA reviews the assignment as an alleged procedural error under ORS 197.835(9)(a)(B). Paulson v. Washington County , 40 Or LUBA 345 (2001). LUBA Procedures/Rules – Briefs – 27.5.5 OAR 661 - 010 - 0039 allows a reply Reply. brief if it is filed “as soon as possible” after the response briefs are filed. A reply brief filed and served three working days after the response briefs were filed is timely filed u nder the rule. Central Klamath County CAT v. Klamath County , 40 Or LUBA 111 (2001). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Where petitioner alleges in the petition for review that the decision maker failed to adopt any findings addressing the ehensive plan and the respondent’s brief identifies the allegedly missing findings, compr LUBA will not allow petitioner to file a reply brief expanding the assignment of error to adequacy of those findings. challenge the , 38 Or LUB A Hubenthal v. City of Woodburn 935 (2000). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Responses warranting a reply brief pursuant to OAR 661 - 010 - 0039 tend to be arguments that assignments of error should fail regardless of the merits, based on facts or authority extrinsic to those merits. Arguments in

8 a response brief that a proposed facility is “grandfathered in” and that petitioner is collaterally estopped from raising certain issues by virtue of a prior decision allowing that Se quoia Park Condo. Assoc. v. City of facility are new matters warranting a reply brief. , 36 Or LUBA 317 (1999). Beaverton Briefs Untimely submission of a motion to Reply. – 27.5.5 LUBA Procedures/Rules – file a reply brief is not a technical violation of LUBA’s rules where the length of the rief and the proximity of oral argument is such that respondents do not proposed reply b have adequate time to respond to the motion and prepare to respond to the proposed reply page reply brief filed two days before oral argument violates brief at oral argument. A 32 - resp ondents’ substantial rights to the speediest practicable review of the land use decision. Sequoia Park Condo. Assoc. v. City of Beaverton , 36 Or LUBA 317 (1999). Briefs – Reply. Where the response brief points out 27.5.5 LUBA Procedures/Rules – that the pe tition for review challenges only one of the county’s alternative bases for modifying an approval standard, the response brief has not raised a “new matter” within the meaning of OAR - 010 - 0039. A reply brief is not a means to assign error to findings 661 at were not challenged in the petition for review, and arguments in the response brief th Hard Rock Enterprises based on such findings are not new matters warranting a reply brief. v. Washington County , 36 Or LUBA 106 (1999). – Br iefs – Reply. 27.5.5 LUBA Procedures/Rules If a reply brief includes positions that go beyond those that are properly included in a reply brief under OAR 661 010 - 0039, those - positions are subject to a motion to strike. Where there is time to raise such objections in a motion to strike before oral argument, it is not appropriate to delay raising such objections until oral argument. The Friends of Clean Living v. Polk County , 35 Or LUBA 830 (1999). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. A response brief raises "new matters" withi n the meaning of OAR 661 - 010 - 0039 when it argues that assignments of error in the petition for review should fail, regardless of the merits of those assignments, based on facts or authority not involved in those assignments. Where the response brief respon ds to the merits of an assignment of error, that response is not a "new matter" for purposes of 661 - 010 - 0039. D.S. Parklane Development, Inc. v. Metro , 35 Or LUBA 516 (1999). OAR 27.5.5 LUBA Procedures/Rules Briefs – – An argument in the response br ief that Reply. the Transportation Planning Rule does not require amendments to the city’s transportation plan until that plan has been formally adopted is a "new matter" warranting a reply brief pursuant to OAR 661 - 060 - 0039. Citizens for Florence v. City of Flor ence , 35 Or LUBA 255 (1998). Reply. – Briefs – 27.5.5 LUBA Procedures/Rules Where a respondent moves for permission to file a supplemental brief but suggests no basis under LUBA’s rules for allowing what appears to be additional argument, the motion will b e denied. Dept. of Transportation v. Douglas County , 34 Or LUBA 608 (1998). Reply. 27.5.5 LUBA Procedures/Rules – Briefs – A reply brief is not allowed pursuant to OAR 661 - 010 - 0039 where the brief merely embellishes 20 pages of argument regarding

9 jurisdict ion and standing in the petition for review, rather than responding to issues raised Casey Jones Well Drilling, Inc. v. City of Lowell , for the first time in the respondent’s brief. 34 Or LUBA 263 (1998). Briefs – Reply. Peti tioner's request to submit a reply – 27.5.5 LUBA Procedures/Rules - 039, where petitioner does not address new 10 - brief will not be allowed under OAR 661 issues raised by respondent's brief, and the reply brief simply embellishes arguments Lind already advanced in the petition for review. 33 Or stedt v. City of Cannon Beach, LUBA 516 (1997). - – Reply. 27.5.5 LUBA Procedures/Rules Briefs 10 - 039 allows petitioner to – OAR 660 file a reply brief when a new matter is raised in the response brief, notwithstanding intervenor respondent's belief th at petitioner should have anticipated that the matter would - be raised in the response brief. Koo v. Polk County, 33 Or LUBA 487 (1997). Briefs – – Reply. The timeline imposed by our rules 27.5.5 LUBA Procedures/Rules to provide a second opportunity for respondents to affecting reply briefs is intended less research issues already argued in their own brief than to provide a reasonable opportunity for respondents and this Board to review the reply brief. , 32 Or Lett v. Yamhill County LUBA 98 (1996). LU BA Procedures/Rules – 27.5.5 – Reply. Petitioner's motion to file a reply brief Briefs will be denied under OAR 661 - 10 - 039 where the county does not raise a new issue for petitioner to address in the reply brief. Still v. Marion County , 32 Or LUBA 40 (1996). .5 – Briefs – Reply. LUBA Procedures/Rules If the respondent's brief challenges the 27.5 Boom v. petitioner's standing and LUBA's jurisdiction, LUBA will allow a reply brief. Columbia County , 31 Or LUBA 318 (1996). 27.5.5 – Briefs – Reply. Failure to file a request to file a reply LUBA Procedures/Rules brief "as soon as possible" after the respondents' brief is filed is a technical violation of LUBA's rules which, under OAR 661 - 10 - 005, does not affect LUBA's review unless the substantial rights of the parties ar e prejudiced. Shaffer v. City of Salem , 29 Or LUBA 592 (1995). – Briefs – 27.5.5 LUBA Procedures/Rules When a contention that LUBA lacks Reply. jurisdiction is made for the first time in the respondent's brief, a reply brief concerning the subject of LUBA' s jurisdiction is warranted. Shaffer v. City of Salem , 29 Or LUBA 592 (1995). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Petitioners may not make a new challenge to the appealed decision in a reply brief, and thereby effectively add an assignment of er ror to the petition for review. Shaffer v. City of Salem , 29 Or LUBA 592 (1995).

10 27.5.5 – Briefs – Reply. Where the petition for review includes LUBA Procedures/Rules allegations concerning the content of a tape in the record, and respondents object that p etitioner failed to attach a transcript of the relevant portions of the tape to the petition for review, LUBA will allow petitioner to submit a transcript in a reply brief, so long as o oral argument. respondents have adequate time to review the tape and transcript prior t , 29 Or LUBA 592 (1995). Shaffer v. City of Salem LUBA Procedures/Rules – Briefs – 27.5.5 Arguments contained in respondents' Reply. to exhaust local appeals and is precluded from raising particular briefs, that petitioner failed issues before this Board, are new matters not contained in the petition for review which warrant the filing of a reply brief. Choban v. Washington County , 25 Or LUBA 572 (1993). LUBA Procedures/Rules – Briefs 27.5.5 Reply. Where the respondent's brief contains – arguments that petitioner waived certain issues raised in the petition for review, petitioner Caine v. will be allowed to file a reply brief to respond to those waiver arguments. amook County , 24 Or LUBA 627 (1993). Till LUBA Procedures/Rules – Briefs – 27.5.5 Arguments in respondent's brief that Reply. petitioner waived issues raised in the petition for review by failing to raise those issues during the local proceedings constitute new matters that petitioners could not have anticipated in the petition for review, thus warranting the allowance of a reply brief. Glisan Street Associates v. City of Portland , 24 Or LUBA 621 (1993). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Under OAR 6 61 - 10 - 039, it is appropriate to grant a motion to file a reply brief to allow petitioner to respond to issues raised in respondents' briefs concerning standing, jurisdiction, and attachment of Sparrows v. Clackamas County r LUBA 318 (1992). documents not in the record. , 24 O LUBA Procedures/Rules – Briefs – Reply. 27.5.5 LUBA will not reject as untimely a motion to file a reply brief that is filed 17 days after the response briefs were filed, because ply brief received four days having to review and prepare to respond to a seven page re 661 - 10 before oral argument does not prejudice respondents' substantial rights. OAR 005. - Sparrows v. Clackamas County , 24 Or LUBA 318 (1992). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Where the respondent's brief includes arguments that code sections relied upon in the petition for review are inapplicable, a Murray v. Clackamas County , 22 Or LUBA motion to file a reply brief will be allowed. 247 (1991). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. After the petition for review is filed, respondents may, in their response brief or in a motion to dismiss, identify disputed allegations of fact, and explain why under their version of the facts petitioners lack standing. Petitioners may then request perm ission to file a reply brief to respond to respondent's legal arguments, move for an evidentiary hearing to present facts establishing standing or do both. Citizens Concerned v. City of Sherwood , 20 Or LUBA 550 (1991).

11 27.5.5 – Briefs – Reply. Argument in respondent's brief that the LUBA Procedures/Rules remedy petitioners seek is unclear, or that petitioners failed to object to statutes, and citation in respondent's brief of cases which petitioners believe irrelevant are not new iling of a reply brief, but rather are matters to which petitioners matters which warrant the f can adequately respond at oral argument. Dolan v. City of Tigard , 20 Or LUBA 411 (1991). LUBA Procedures/Rules – Briefs – 27.5.5 Reply. A reply brief is unwarranted under OAR 661 - 10 - 039, i f it simply embellishes arguments advanced in the petition for review. Wissusik v. Yamhill County , 20 Or LUBA 246 (1990). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. OAR 661 - 10 - 039 requires petitioners to demonstrate a need for a reply brief. Although i t is desirable to have a full explanation of the need for a reply brief in petitioner's motion to file a reply brief, LUBA will also consider oral argument in support of the motion in determining whether the need for a reply brief has been demonstrated. Kn app v. City of Jacksonville , 20 Or LUBA 189 (1990). 27.5.5 LUBA Procedures/Rules – Briefs – Reply. Excerpts of transcripts of the local government's proceedings below, which are submitted to LUBA for the first time as "new matters raised in the respondent's brief" to attachments to respondent's brief, are which petitioner may respond in a reply brief. OAR 661 - 10 - 039. Columbia Steel Castings v. City of Portland , 19 Or LUBA 338 (1990).

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