Agenda - Planning Commission - 02/02/2012

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October 25, 2011 I Volume 5 I No. 20 Zoning Bulletin The superior court agreed with Mellish and the County. It denied Frog Mountain's motion to dismiss. It then reached the merits of Mellish's land use petition and reversed the County's decision to grant the permit. Frog Mountain appealed, arguing the superior court erred in denying its motion to dismiss. The Court of Appeals reversed the trial court. Agreeing with Frog Mountain, it held that the hearing examiner's original decision was the "final determination" that triggered the time limit for filing a land use petition. Accordingly, it held that Mellish's motion for reconsideration did not toll the filing deadline, and Mellish's land use petition was untimely. Mellish appealed. DECISION: Reversed. The Supreme Court of Washington held that the motion for reconsidera- tion Mellish filed with the county hearing examiner tolled the finality of the examiner's initial decision for the purposes of filing a land use petition in superior court. Accordingly, Mellish's land use petition was timely. The court so held based on its determination that the hearing examiner's decision on the reconsideration motion was a "final determination" from which the 21 -day period of time to file an appeal is triggered. The court not- ed that a decision is "final" if it "leaves nothing open to further dispute and which sets at rest cause of action between parties." The court found that, here, after Mellish filed his motion for reconsidera- tion, Frog Mountain's "entitlement" to the permit was once again "open to ..$ dispute." Thus, the court found "the action was only `conclude[d]' when the hearing examiner issued a decision on the reconsideration motion on July 20." Moreover, the court noted the "practical problems" with interpreting LUPA differently. If Mellish filed a land use petition without waiting for the hearing examiner's decision on the reconsideration motion, Mellish would lack standing because he would not have exhausted administrative remedies yet as required by LUPA (RCW 36.70C.060(2)(d)). On the other hand, if Mellish were to wait, and the original hearing examiner's decision was con- sidered the "final determination" that triggered the filing period, then the 21 -day deadline could expire before the hearing examiner issued a decision. Given this practical problem under such an interpretation, the court found it clear that the "finial determination" from which the 21 -day period of time to file an appeal was triggered was the hearing examiner's decision on the reconsideration motion. See also: Samuel's Furniture, Inc. v. State, Dept. of Ecology, 147 Wash. 2d 440, 54 P.3d 1194 (2002). See also: Skinner v. Civil Service Com'n of City of Medina, 146 Wash. App. 171, 188 P.3d 550 (Div. 1 2008), review granted, 165 Wash. 2d 1040, 204 P.3d 215 (2009). 10 . © 2011 Thomson Reuters