OMW Municipal Law Blog

LAND USE  – FAILURE TO TIMELY APPEAL PERMITS NOT SUBJECT TO PUBLIC NOTICE.  Courts cannot entertain appeals of land use decisions unless the appellant has exhausted all administrative appeals first.  Exhaustion includes the timely filing of administrative appeals, even if the appellant is not required to receive notice of the land use decision.  Nickum v. Bainbridge Island, ___ Wn. App. _____, Slip Op. 38217-2.

 I.          Facts.  Verizon acquired a building permit from Bainbridge Island to construct an equipment shed and utility pole for some communications antenna.  Bainbridge Island issued a building permit and determined the project to be exempt from the State Environmental Policy Act (“SEPA”) on September 14, 2007.  The Nickums owned property adjacent to the project.  They received no notice of the building permit or SEPA exemption decisions and no notice was required.  The Nickums filed an appeal of the decisions to the Bainbridge Island Hearing Examiner on November 8, 2007, about nine days after they first learned of the permits.  The Hearing Examiner dismissed the appeal as untimely, noting that Bainbridge Island regulations impose a 14 day appeal deadline from the date of permit issuance.  The Nickums filed a judicial appeal under the Land Use Petition Act , Chapter 36.70C RCW (“LUPA”), 19 days after issuance of the Examiner’s decision. 

 II.        Applicable Law and Analysis.  Under the doctrine of exhaustion of administrative remedies, LUPA appellants must exhaust all available administrative appeals prior to seeking judicial relief.  This requirement includes complying with administrative time-of-filing requirements.  The Nickums argued that it was not practically possible for them to timely file an administrative appeal of those decisions because they didn’t know they had been issued.  The Court of Appeals determined that it could not toll (extend) the administrative appeals period because Bainbridge Island had not necessitated an extension due to bad faith, deception or false assurances. 

 The Nickums asserted that requiring a timely appeal for permits without notice violated their due process rights (constitutional fairness).  The Court of Appeals determined that they could not consider this argument because the Nickums’ LUPA action was filed too late and LUPA is the judicial mechanism to consider due process claims.   LUPA requires an appeal to be filed within 21 days of the issuance of a final decision.  The Court of Appeals determined that the Hearing Examiner decision was not the final decision because it was based upon an untimely administrative appeal.  Consequently the final decision was the issuance of the building permit and SEPA exemption decision, which were issued much more than 21 days prior to the LUPA appeal. 

 III.       Conclusion.   Even when aggrieved parties receive no notice of a decision, they are still expected under this decision to file timely administrative and judicial appeals if they want to be heard.  The greatest impact will be with building permit decisions, where notice is rarely required for surrounding property owners.

LAND USE PETITION ACT (LUPA)—“FINAL DETERMINATION”—MOTION FOR RECONSIDERATION.  A motion for reconsideration of a land use decision made by a jurisdiction’s body or officer with the highest level of authority does not toll LUPA’s strict 21-day superior court appeal filing deadline. RCW 36.70C.040(2), (3).  Mellish v Frog Mountain Pet Care, et al, Slip Op. No. 37583-4-II (December 15, 2009).

I.          Issue and Facts.   In Mellish, the court considered whether a county hearing examiner’s decision approving a conditional use permit and minor variance, required for a proposed remodel and expansion of a dog and cat boarding facility, was a “final determination” under LUPA’s definition of a “land use decision.” If so, the decision triggered the running of LUPA’s 21-day appeal period, even though a motion for reconsideration was pending. Mellish, a project opponent, filed a motion for reconsideration. The hearing examiner issued a decision denying the motion for reconsideration and the county issued a permit to Frog Mountain. Mellish then filed a LUPA petition within 21 days of the denial of the motion for reconsideration, but more than 21 days after the hearing examiner’s decision approving the permit and variance. Mellish and the County argued that the 21-day appeal period did not begin to run until the decision denying the motion for reconsideration was made by the hearing examiner. The superior court agreed with Mellish that the motion for reconsideration tolled the 21-day LUPA appeal period and then reversed the examiner’s decision on the merits. Frog Mountain appealed on the basis that Mellish did not file his petition within 21 days of the hearing examiner’s decision. Division II of the Court of Appeals agreed with Frog Mountain and reversed the superior court with instructions that the superior court dismiss the LUPA appeal with prejudice.

II.        Applicable Law and Analysis.  The appeals court first determined that the hearing examiner issued a final decision under former RCW 36.70C.020(1)(a) when he approved the conditional use permit and variance and that an appeal was required within 21 days. RCW 36.70C.040(2). Since the hearing examiner was the county’s highest level of decision making authority on the conditional use permit and variance, the decision was a final determination. The county was not free to define a “final determination” in its local code  because LUPA requires uniformity in expedited appeal procedures. RCW 36.70C.010 and Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440, 452, 54 P.3d 1194 (2002). The appeals court rejected arguments that the motion for reconsideration was itself an appeal to a higher authority and that the decision was not final until the hearing examiner decided the motion to reconsider.

            Having determined the decision of the hearing examiner on the merits of the application to be a final decision, the court of appeals then held that a motion for reconsideration of a LUPA final decision does not toll the filing deadline. Compelling to the court was the absence of any provision in LUPA, as found in other statutes, expressly providing that a reconsideration motion either renders an otherwise final decision non-final or tolls the deadline for filing an appeal. The court pointed to other contexts where the legislature, desiring to alter the effect of unambiguous statutory provisions, such as by tolling a statute of limitations, “has done so expressly.” LUPA contains no similar tolling provision for motions for reconsideration. Finally, the appeals court reviewed the doctrine of equitable tolling and determined that none of the predicates for equitable tolling were demonstrated. The predicates for equitable tolling are bad faith, deception, or false assurances by the other party and the exercise of diligence by the party asserting that equitable tolling should apply.

III.       Conclusion.  This decision addresses an issue of first impression for the appellate courts of this state. Although the decision is deeply-rooted in statutory language and case law expressing that LUPA was intended to provide consistency, uniformity and expedited appeal procedures, another division of the court of appeals could decide differently. Cities should exercise caution and consult their city attorney when considering whether or not to adopt code language that allows for reconsideration of a land use decision made by a highest level decision maker, or when determining the effect of such a motion on the running of the 21-day LUPA appeal period if your city’s code already allows for a reconsideration motion. In January of 2010, the State Supreme Court will hear oral argument in the case of Skinner v. Civil Serv. Comm’n of City of Medina, 146 Wn. App. 171, 173, 188 P.3d 550 (2008). The state’s highest court accepted review of an appeal brought by the City of Medina challenging a Division One decision holding that a motion for reconsideration of a civil service commission’s decision denying an appeal of a disciplinary decision tolled the 30-day statute of limitations in RCW 41.12.090. Although a different statutory context, the decision reached by the State Supreme Court in Skinner may provide a clearer picture as to the impact and lasting effect of the decision by Division II in Mellish v. Frog Mountain, et al.