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Zoning Bulletin October 25, 2011 I Volume 5 1 No. 20 Rezoning—Permit Recipient Says Opponent's Appeal is Untimely under LUPA Parties dispute whether LUPA's time limit for appeal is tolled by the fling of a motion for reconsideration Citation: Mellish v. Frog Mountain Pet Care, 172 Wash. 2d 208, 257 P.3d 641 (2011) WASHINGTON (07128/11) This case addresses the issue of whether a motion for reconsideration filed by a landowner with a county hearing ex- aminer tolls the running of the 21 -day time limit under Washington's Land Use Petition Act ( "LUPA ") for the landowner to file a land use petition in superior court until such time as the motion for reconsideration is decided. The Background/Facts: Harold and Jane Elyea owned Frog Mountain Pet Care ( "Frog Mountain ") in Jefferson County, Washington (the "County"). Frog Mountain applied to the county for a conditional use permit and a variance to expand their dog and cat boarding facility. On June 18, 2007, a County hearing examiner granted Frog Mountain's application. A land use permit issued to Frog Mountain on June 20, 2007. Frog Mountain's neighbor, Martin Mellish ( "Mellish "), opposed the ex- pansion of the animal boarding facility. He asserted that the proposed ex- pansion would increase noise from the facility. On June 28, 2007, Mellish filed a motion for reconsideration with the hearing examiner. on July . 20, 2007, the hearing examiner denied Mellish's motion for reconsideration. on August 10, 2007, Mellish filed a land use petition in superior court pursuant to LUPA. This filing occurred 20 days after the County mailed no- tice of the hearing examiner's decision denying Mellish's motion for recon- sideration, and 50 days after entry of the hearing examiner's decision grant- ing Frog Mountain's application. Frog Mountain moved to dismiss Mellish's land use petition as untimely. Under LUPA (RCW 36.700.040(3)), the applicant or any aggrieved party may appeal the final decision to superior court "within twenty -one days of the issuance of the land use decision." A "land use decision" is defined as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination." (RCW 36.70C.020(2)). Frog Mountain asserted that the 21 -day time -limit on filing the petition ran from the date of the hearing examiner's original decision. Mellish and the County (though on opposite sides of the underlying law- suit) contended that the time limit for filing the lawsuit ran from the date Mellish's motion for reconsideration was denied. As such, they argued that Mellish's land use petition was timely. © 2011 Thomson Reuters 9