Editor's Note: The Washington State Court of Appeals recently issued Mellish v. Frog Mountain Pet Care, an important land use case. Matthew Stock, an attorney with the Buck Law Group—a Seattle-based land use, environmental, dispute resolution and civil litigation firm that is a Northwest Hub sponsor—provides background and insight into this decision. You can reach him by sending an email to mstock@bucklawgroup.com.
Under Washington’s Land Use Petition Act (LUPA), RCW Chapter 36.70C, a party seeking to challenge a land use decision has a limited time to file a petition for review. According to RCW 36.70C.040(3), the petition must be filed “within twenty-one days of the issuance of the land use decision.” Petitions that are filed after the expiration of this 21-day deadline are time-barred. As any practicing attorney will tell you, missing such a deadline can be disastrous.
Historically, there has been some question as to whether or not a motion for reconsideration tolls this 21-day deadline. A recent decision from Division II of the Washington State Court of Appeals, Mellish v. Frog Mountain Pet Care, clarifies that it does not. Thus, a party seeking review of a land use decision would be wise to heed LUPA’s 21-day deadline regardless of any pending motions for reconsideration since project proponents now have a stronger defense against untimely filings.
Background
The dispute between Mr. Mellish and Frog Mountain Pet Care arose when Frog Mountain decided to expand its existing animal boarding operation. Frog Mountain had applied for all necessary permits from Jefferson County, including a conditional use permit and a variance. Mr. Mellish, concerned about the possibility of increased animal noise, opposed Frog Mountain’s expansion plans.
On June 20, 2007, the County Hearing Examiner (which has the power to make final decisions on conditional use and variance applications) filed a decision granting Frog Mountain all necessary permits. Eight days later, Mr. Mellish filed a motion for reconsideration. The Hearing Examiner denied Mr. Mellish’s motion on July 20, 2007. The next day, the County issued Frog Mountain its permits.
On August 10, 2007—21 days after the Hearing Examiner denied Mr. Mellish’s motion for reconsideration—Mr. Mellish filed a LUPA petition. Frog Mountain moved to dismiss Mr. Mellish’s petition on the grounds that it was filed too late. The trial court denied Frog Mountain’s motion. Frog Mountain appealed.
The questions before the court of appeals were whether the Hearing Examiner’s June 20 decision (which granted Frog Mountain all necessary permits) was a “final determination” for purposes of LUPA when a motion for reconsideration was pending and, if so, whether Mr. Mellish's motion for reconsideration tolled the filing deadline.
Was the Hearing Examiner’s June 20 decision a “final determination” even though Mr. Mellish had filed a motion for reconsideration?
Under LUPA, a petition for review must be filed “within twenty-one days of the issuance of the land use decision.” RCW 36.70C.040(3) (emphasis added). LUPA defines the phrase “land use decision” as:
a final determination by a local jurisdiction’s body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on: (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used . . . .
RCW 36.70C.020(2) (emphasis added).[1] LUPA does not include a separate definition for the phrase “final determination.”
The County, which found itself aligned with Mr. Mellish on appeal, argued that the absence of a statutory definition of “final determination” demonstrated the legislature’s implicit intent to leave the determination of finality to the local government. According to the County, in order to determine whether any given decision is a “final determination” for purposes of LUPA, the reviewing court must look to the local government’s code.
The court rejected this argument, noting that it ran contrary to the purpose of LUPA (which was enacted to “establish[] uniform, expedited appeals procedures . . . in order to provide consistent, predictable, and timely judicial review”) and that it would give local governments the power to determine when a state court had jurisdiction over a land use challenge.
Instead, the court applied the definition of “final determination” set forth in several Washington State Supreme Court decisions—“one which leaves nothing open to further dispute and which sets at rest [the] cause of action between parties”—and concluded that the Hearing Examiner’s June 20 decision satisfied that definition.
The court also concluded that Mr. Mellish’s motion for reconsideration did nothing to alter the fundamental finality of the Hearing Examiner’s June 20 decision. While the County had argued that Mr. Mellish’s motion was similar to an appeal, the court rejected that argument since the motion for reconsideration was not made to a higher authority. The court also rejected the argument that Mr. Mellish’s motion somehow reopened the case, stating that “[t]he reconsideration motion concerned whether the June 20 decision should be reconsidered, not whether the petitioner was entitled to relief.”
Did Mr. Mellish’s motion for reconsideration toll the 21-day filing deadline?
Since the court concluded that the Hearing Examiner’s June 20 decision was a “final determination” for purposes of LUPA, which would thus trigger the 21-day appeal deadline, the next question was whether or not Mr. Mellish’s motion for reconsideration tolled that deadline. Unlike other statutes which expressly provide that a motion for reconsideration will toll any applicable statutes of limitations, LUPA contains no such language. Instead, LUPA is clear and unambiguous as to when the appeal must be filed—“within 21 days of the issuance of the land use decision.” Thus, the court ruled that Mr. Mellish’s motion for reconsideration did not toll the filing deadline.
Interestingly, the court left open the possibility of equitable tolling in the context of a LUPA appeal, but concluded that it was not implicated by the facts of this case. Equitable tolling allows a court to toll the relevant statute of limitations in the interest of justice. This doctrine, which is used sparingly by the courts, generally requires bad faith, deception, or false assurances on the part of the defendant and diligence on the part of the plaintiff. While the possibility of facts supporting an equitable tolling argument seems remote, a creative land use practitioner may be able to utilize this doctrine to his or her advantage if the 21-day deadline expires before an appeal is filed.
[1] RCW 36.70C.020 was amended after Frog Mountain filed its appeal. The LUPA amendments did not, however, make any substantive changes to the definition of “land use decision.” Accordingly, the court’s holding is equally applicable to the most recent version of LUPA.
