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Final Decision in Land Use Matter Not Rendered Until Decision on Local Motion for Reconsideration Issues

In Mellish v. Frog Mountain Pet Care, the Washington Supreme Court considered the effect of Mellish’s motion for reconsideration by the hearings examiner of his decision to approve a conditional use permit and variance to expand Frog Mountain, a dog and cat boarding facility.  The original decision was made on June 18, 2007.  The local code allowed an opponent to file such motion without providing notice to the applicant.  The hearings examiner considered the motion and again approved the application.  The decision on the motion for reconsideration before the hearings examiner was made on July 20, 2007.

Thereafter, on August 10, Mellish filed a land use petition in the Clallam County Superior  Court pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW.  This filing occurred 20 days after the County mailed notice of the hearing examiner's decision denying his motion for reconsideration, and 50 days after entry of the hearing examiner's original decision granting Frog Mountain's application.  Frog Mountain then moved to dismiss the land use petition as untimely, asserting that the 21-day time limit on filing the petition ran from the date of the hearings examiner's original decision.  Frog Mountain’s appeal to the state Supreme Court assigned error only to the Court of Appeals denial of its motion to dismiss.

The Court considered whether the examiner’s decision on reconsideration was a “final determination.”  The Court recognized that the case is governed by LUPA, which favors timely judicial review.  LUPA defines a land use decision as "a final determination by a local jurisdiction's  . . . highest  . . . authority to make the determination."  The Court held that the decision on the motion for reconsideration is a final determination because prior to that decision there is a dispute whether the hearings examiner should or could reconsider its decision.  Thus, upon Mellish’s filing his motion for reconsideration, Frog Mountain’s entitlement to the permit was once again open to dispute. 

Further, the Court relied on LUPA’s standing provision to conclude that the motion for reconsideration tolled the time to file a petition for review because a party does not have standing to seek judicial review until all administrative remedies are exhausted.  Although Mellish had the option to file for reconsideration before he had filed in court, LUPA supports local jurisdiction over land use matters.  Therefore, Mellish did not lose his opportunity to seek judicial review by virtue of first seeking a local remedy.  

As a result of the facts of this case, in 2010 the legislature passed House Bill 2740.  The bill changes the definition of "'[l]and use decision'" in RCW 36.70C.020(2)(c) and now includes this proviso:

“Where a local jurisdiction allows or requires a motion for reconsideration to the highest level of authority making the determination, and a timely motion for reconsideration has been filed, the land use decision occurs on the date a decision is entered on the motion for reconsideration, and not the date of the original decision for which the motion for reconsideration was filed.”

This legislation answers the question raised in Mellish for future decisions.  Nonetheless, the due process question of whether local codes allowing motions for reconsideration should also require notice of such motion to the applicant will be saved for another day because Frog Mountain did not preserve this argument on appeal.

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