The Supreme Court of Washington clarified tolling provisions in the Washington Land Use Petition Act (“LUPA”), holding that a 21-day period to file petition seeking review in Superior Court does not begin until administrative remedies are exhausted.
Questions related to the 21-day time limit arose when a neighbor challenged Jefferson County’s decision to issue a conditional use permit that would allow Frog Mountain Pet Care to expand its dog and cat boarding facility. The neighbor, who feared that the expanded facility would be too noisy, filed a petition seeking reconsideration of the administrative decision, which was denied, and followed with a petition in Superior Court. The pet care facility responded with a motion to dismiss, arguing that the court petition was not timely because it had not been filed within 21 days of the initial decision. The court petition by Martin Mellish of Port Townsend was filed 20 days after the county denied the motion for reconsideration, and 50 days after the county’s original decision.
After the dispute arose, and before it was decided, the legislature amended LUPA to clarity that the triggering date for the 21-day time limit begins when a local jurisdiction enters a decision on a motion to reconsider. At the time of the lawsuit, the statute stated only that a petition is timely “if it is filed and served on all parties … within twenty-one days of the issuance of the land use decision.” The trial court denied the motion to dismiss, concluding that the decision on the motion for reconsideration triggered the time limit. The Court of Appeals reversed, holding that the original decision triggered the time limit.
The Supreme Court settled the matter by looking at the legislative intent. Although the original LUPA statute did not explicitly toll the time period when a motion for reconsideration is filed, the court found that the statute implicitly tolled the time period by including a provision granting standing only if administrative remedies had been exhausted. The court also noted that other Washington statutes expressly provide that a reconsideration motion tolls the deadline for filing an appeal. The court held that a land use decision is final only after a motion for reconsideration is decided. As Mellish’s petition was deemed timely filed, the case was reversed and remanded for further proceedings.
Mellish v. Frog Mountain Pet Care, 2011 WL 3206885 (Wash.7/28/2011)
The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=842469MAJ
