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<br />zo~ing Bulletin
<br />
<br />January 25, 20101 Volume 41 No.2
<br />
<br />was too large and would increase the [F]acility's no1se~ interfering with
<br />his enjoyment of his property." '.
<br />On'June 20, 2007, the county's deputy hearing examiner filed his
<br />decision, grantingFJ;og Mountain's requested permit; The next day the
<br />couIltymailed that deCision to. all interested parties.
<br />On June 28, Mellish moved for reconsideration.
<br />On July 20, the county denied Mellish's motion for' reconsideration.
<br />The next day, the county mailed a notice of its decision to deny Mell-
<br />ish's motion and issued Frog Mountain's requested permit...
<br />On August io, 2007, Mellish filed a land use petition under LUPA
<br />in the county's Superior Court. This filing was made 20 days after the
<br />~ounty mailed the order denying. reconsideration and issued the per-
<br />mit, and 50 days after the county mailed the deputy hearing examiner's
<br />June 20 decision granting Frog Mountain's permit.
<br />Frog Mountain filed a motion with the court, asking it. to dismiss
<br />Mellish's LUPA action as ,untimely. Frog Mountain noted that LU- .
<br />PA's statute of limitations required Mellish to file his LUPA action
<br />within 21 days of the date a land use decisiqn is issued; (See RCW
<br />36.70C.040(2)). Strict compliance with LUPA's statute of limitations is
<br />required. Frog Mountain argued that Mellish failed to file his LUPA
<br />action within 21 days of the June 20 decision and therefore the action
<br />was untimely. ' . . . ". .
<br />Opposing the motion to dismiss, Mellish a.i:gued that the LUPA stat-
<br />ute of limitations ran from the July 20 order denying reconsideration,
<br />.nQt the June 20 decision. As such, he maintained that his LUPA action
<br />was timely.
<br />The Superior Court agreed with Mellish, concluding that Mellish's
<br />motion for reconsideration tolled the 21-day filing requirement. -The
<br />cour:t denied Frog Mountain's motion to dismiss. - - ,
<br />Frog Mountam appealed the denial of its motion to dismiss.
<br />
<br />The Court's Decision: Decision of the Superior Court reversed witl;1.
<br /><lirections to dismiss appellant's LUPA appeal as untimely.
<br />
<br />The Court of Appeals of Washington, Division 2, concluded that
<br />Mellish's LUPA action was untimely because it was filed more than 21
<br />days ,after the county issued the June 20 decision. In so concluding, the
<br />court held that: (1) a county hearing examiner's decision is a "final de-
<br />termination" under LUPA when a motion for reconsideration is pend-
<br />ing; and (2) a reconsideration motion does not toll the deadline to file a
<br />LUPA appeal.
<br />, The court explained that LUPA's statute of limitations, requiring
<br />a party to file a LUPA appeal within 21 days of a land use decision,
<br />meant that a party must file suchan appeal within 21 days of a final
<br />determination that resolves the matter between disputing parties. Here,
<br />the court found that "the Jtine 20, 2007 decision was a final determina-
<br />tion before Mellish moved for reconsideration." It concluSively resolved
<br />
<br />@ 2010 Thomson Reuters
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