dissenting.
Because I disagree with the majority’s understanding of the significance of the Supreme Court’s decision in Gordon v. City of Beaverton, 292 Or 228, 637 P2d 125 (1981), I dissent from that portion of the opinion disposing of petitioner’s third and fourth arguments, which relate to LUBA’s authority to accept a late filing of the petition and supporting brief after the agency has acquired jurisdiction.
Petitioner’s third argument is the more troublesome one, because LUBA based its dismissal here on our opinion in Gordon v. City of Beaverton, 52 Or App 937, 630 P2d 366 (1981), that the agency had no authority to waive or extend the time for filing the petition and supporting brief, even though the notice of intent to appeal was timely given. Or Laws 1979, ch 772, § 4(1), (4). Prior to our decision in that case, LUBA had adopted an administrative rule under which the time for filing the petition and brief could be extended by written stipulation of all parties. Former OAR 661-10-075(1)(b).1 Our decision was issued *693June 29, 1981, prior to the expiration of this petitioner’s time for filing his petition and brief with LUBA. LUBA’s order was entered July 24, at which time it had been told that it had no discretion to permit a late filing.
On review of Gordon, the Supreme Court implicitly held that LUBA had authority to adopt the rule permitting extensions of time to file the petition and brief, but that the petitioner had not shown compliance with that rule; therefore, it affirmed our opinion affirming LUBA’s dismissal of the petition. Although I agree that the opinion could have been more clear, it seems obvious to me that if the court had concluded, after granting review, that the issue of LUBA’s authority was not presented in that case it would have simply dismissed the petition for review as improvidently granted. Instead, the court issued an opinion, albeit per curiam, in which it intended to say something, and it seems clear to me that it did.
Notwithstanding the court’s disposition of the case on the ground that petitioner had not shown that it came within LUBA’s then-existing rule (see n 1, supra), the court disposed of petitioner’s other contention:
“Petitioner argues not only that LUBA had authority to forgive his one day delay in filing these documents, but that the court should order it to do so by applying judicial policies in favor of preserving the right of appeal. See, e.g., David M. Scott Construction v. Farrell, 285 Or 563, 568, 592 P2d 551 (1979). But LUBA is an agency, not a court in the judicial system. A court may interpret a doubtful statute so as not to foreclose an agency from adopting similar procedural policies, but it is quite another thing to impose them on the agency as a matter of law. Compare Fish § Wildlife Department v. LCDC, 288 Or 203, 603 P2d *6941371 (1979) (statute precluded agency’s requiring exhaustion of pre-review remedies). Here the board had adopted a rule that the time for filing petitions and briefs would be extended only with the consent of opposing parties, and we see nothing in the statute that would entitle petitioner to a different ruling on his petition. [Footnote omitted.]” Gordon v. City of Beaverton, supra, 292 Or at 230-31.
It is implicit in that discussion that the court considered that LUBA had authority to waive or extend the time for filing the petition and brief.
At the time this case was submitted to us, LUBA had no rule permitting extensions of time for filing a petition and supporting brief, having deleted those provisions from its rule following our decision in Gordon. See Gordon v. City of Beaverton, supra, 292 Or at 230, n 1. Given the peculiar posture of this case, the most appropriate disposition, in my opinion, is to reverse and remand it to LUBA to allow it to exercise its administrative discretion to accept or dismiss the petitioner’s untimely filed petition and brief.
Because I would reverse and remand, I dissent.
Former OAR 661-10-075(1)(b) provided:
“(1) Except as provided in subsection (b) of this section, any time deadline established by these rules for the filing of documents with the Board, *693other than the Notice of Intent to Appeal, may be extended by the Board upon motion of the party seeking the extension. The motion shall state the reasons for the granting of the extension and must be filed with the Board within the time required for performance of the act for which an extension of time is requested.
“(b) A motion which seeks to extend the time for filing the petition for review or respondent’s brief must be accompanied by a written stipulation signed by all the parties to the appeal consenting to the extension. A written stipulation consenting to an extension of time for filing respondent’s brief must also contain a provision consenting to an extension of the time within which the Board is required to issue a final order by an amount of time equal to the extension stipulated by the parties.”