Chapter § 16.3 Litigation Under the Land Use Petition Act

• Jurisdiction: Washington

§16.3 LITIGATION UNDER THE LAND USE PETITION ACT

Having identified the various judicial and administrative remedies available for the review of land use decisions, this section focuses in greater detail on LUPA's procedural provisions.

(1) Commencement of a LUPA action

Proceedings for review under LUPA are commenced by the filing of a land use petition in superior court. To be timely, the petition must be filed and served on all parties within 21 days of the issuance of the land use decision. For purposes of the running of the 21-day limitation period, LUPA provides that the date of a land use action is either three days after a decision is mailed or, if not mailed, the date upon which the local jurisdiction provides notice that a written decision is available. See Hale v. Island Cnty., 88 Wn. App. 764, 946 P.2d 1192 (1997) (the applicable limitation period for a written decision that was not an ordinance or resolution is the 21-day period plus three days for mailing). If a land use decision is by ordinance or resolution, the limitation period begins running from the date of passage.

If no notice and no enactment occur, then the date of decision is the date upon which it is entered into the public record. RCW 36.70C.040(4). To be "issued" a decision must be memorialized in some tangible, accessible form; issuance of a decision does not occur simply upon oral announcement that a decision has been made. Vogel v. City of Richland, 161 Wn. App. 770, 780, 255 P.3d 805 (2011).

The 21-day limitation period will run even when particularized notice to interested parties is not given. Samuel's Furniture, Inc. v. State Dep't of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002), amended on reconsideration, 63 P.3d 764 (2003); Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 223 P.3d 1172 (2009) (rejecting the defense of "equitable tolling" against the running of the limitation period for lack of notice of the permit decision); Applewood Estates Homeowners Ass'n v. City of Richland, 166 Wn. App. 161, 168, 269 P.3d 388 (2012) (approval of an administrative permit, rendered without public notice, was "issued" for purposes of LUPA when a written memorialization was entered into the public record); Durland v. San Juan Cnty., 182 Wn.2d 55, 68, n.7, 340 P.2d 191 (2014) (following prior holdings that LUPA's 21-day limitation period may run without notice).

(2) Filing and service requirements

Except for the local jurisdiction itself, service on other parties (the applicant, owners, and other appellants) may be accomplished either as provided under superior court rules or by first-class mail. Service by mail is effective as of the date of mailing, which eases somewhat the requirement that an action be both filed and served by the end of the limitation period. RCW 36.70C.040(5).

Under LUPA, service upon local jurisdictions continues to be subject to RCW 4.28.080, which requires that the county be joined by service on its county auditor and that a town or city be joined by service on its mayor. A charter city or a charter county may designate other officials for service. Unfortunately, LUPA does not remove the harshness of the holding in Meadowdale Neighborhood Committee v. City of Edmonds, 27 Wn. App. 261, 616 P.2d 1257 (1980), in which the court read RCW 4.28.080 literally to hold that service on a mayor's secretary was insufficient despite actual notice.

Service requirements are strictly applied in LUPA actions. In San Juan Fidalgo Holding Co. v. Skagit County, 87 Wn. App. 703, 943 P.2d 341 (1997), the service of a petition on a deputy auditor on the last day of the appeal period, but after normal office hours, was found not to comply with the statutory time limit for filing land use appeals.

Along the same lines, the court in Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593, 972 P.2d 470, 473 (1999), dismissed a LUPA petition that had been served upon the county commissioners instead of the county auditor as required under RCW 4.28.080. In so holding, the court expressly rejected the argument that the doctrine of substantial compliance applied to the commencement of a LUPA action. Id. at 474.

In Witt v. Port of Olympia, 126 Wn. App. 752, 109 P.3d 489 (2005), service on an office assistant (a part-time, temporary, high-school intern, who worked at the port's front desk) was insufficient because that assistant was not technically an assistant to the "president or other head of the company or corporation, registered agent, secretary, cashier or managing agent[,]" as required by RCW 4.28.080(9), the provision addressing service upon companies and corporations not specifically listed under RCW 4.28.080.

By requiring that an action be both filed and served within the 21-day limitation period, LUPA renders inapplicable the tentative commencement statute in RCW 4.16.170. In other civil actions, the running of a limitation period is tolled if an action is either filed or served within the applicable period as long as the remaining acts are accomplished within 90 days following the commencement of the action. Sterling v. Spokane Cnty., 31 Wn. App. 467, 471, 642 P.2d 1255, review denied, 97 Wn.2d 1041 (1982).

For parties who elect not to appeal unless another party appeals first, another trap for the unwary awaits. Under LUPA there is no right of cross appeal beyond the 21-day limitation period. Lakeside Indus. v. Thurston Cnty., 119 Wn. App. 886, 83 P.3d 433 (2004). To protect its interests, a party must prepare its petition in advance and be ready to file and serve by the 21st day, or any attempted cross appeal will be barred.

Filing in an incorrect court may result in dismissal as well. Under RCW 36.01.050 (as amended in 1997), actions against a county may only be commenced in that county or in the nearest two judicial districts. A LUPA action commenced in the wrong county will be dismissed. Ahmann-Yamane, LLC v. Tabler, 105 Wn. App. 103, 19 P.3d 436 (2001).

Another requirement for proper commencement of a LUPA action is the filing of an affidavit or declaration when service is by mail, RCW 36.70C.040(6), a relatively minor detail that could create unnecessary problems. For example, compare Diehl v. Western Washington Growth Management Hearings Board, 153 Wn.2d 207, 103 P.3d 193 (2004) (filing of proof of service not required under the state Administrative Procedures Act; petition for review reinstated), with Alvarez v. Banach, 153 Wn.2d 834, 109 P.3d 402 (2005) (dismissal of request for trial de novo affirmed when plaintiff failed to file proof of service containing evidence of time, place, and manner of service as required under Mandatory Arbitration Rules).

(3) Review of final actions

LUPA only allows for review of final land use decisions rendered by the highest decision-making body. RCW 36.70C.020(1). A final determination is one that ends an action between the parties. Samuel's Furniture, 147 Wn.2d at 452.

As for actions not found to be reviewable, in Pacific Rock Environmental Enhancement Grp. v. Clark County, 92 Wn. App. 777, 964 P.2d 1211 (1998), Division II held that a "land use decision," within the meaning of LUPA, did not include a hearing examiner's prehearing discovery order, and consequently LUPA did not confer jurisdiction for interlocutory judicial review of such an order. In Tugwell v. Kittitas County, 90 Wn. App. 1, 951 P.2d 272 (1997), Division III held that the Kittitas County Planning Commission was not the county's highest level of authority on rezoning matters, so that its recommendation was not a land use decision subject to review under Chapter 36.70C RCW. In Ferguson v. City of Dayton, 168 Wn. App. 591, 277 P.3d 705 (2012), Division III held that issuance of a building permit was not a final action when it remained administratively appealable. And in WCHS, Inc. v. City of Lynnwood, 120 Wn. App. 668, 86 P.3d 1169, review denied, 152 Wn.2d 1034 (2004), Division I found that LUPA was not available to seek review of a determination that a building permit application was incomplete. But in Biermann v. City of Spokane, 90 Wn. App. 816, 960 P.2d 434 (1998), the court concluded that LUPA did provide a remedy to challenge the absence of a valid building permit and code violations.

In 2010, the legislature amended RCW 36.70C.020(2) to provide that when the highest decision-making authority allows or requires a motion for reconsideration, final action on a land use decision for purposes of LUPA occurs on the date a decision is rendered on the motion for reconsideration. Laws of 2010, Ch. 59. The amendment was adopted to reverse a contrary result in Mellish v. Frog Mountain Pet Care, 154 Wn. App. 395, 225 P.3d 439 (2010). But as events unfolded, the legislature acted too hastily, because the Supreme Court disagreed with the Court of Appeals and ruled that a motion for reconsideration tolled the appeal period. Mellish v. Frog Mountain Pet Care, 172 Wn.2d 208, 219, 257 P.3d 641 (2011), rev'g 154 Wn. App. 395, 225 P.3d 439 (2010).

(4) Review foreclosed by absence of timely action under LUPA

In Samuel's Furniture, 147 Wn.2d 440, and Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002), the court emphatically held that LUPA provides the exclusive remedy for the appeal of non-quasi-judicial, ministerial land use decisions and that LUPA's 21-day limitation period applies to such appeals.

In Nykreim, failure to timely commence a LUPA appeal of a boundary line adjustment barred later review. And in Samuel's Furniture, the Department of Ecology's failure to seek review through LUPA of a determination by the city of Ferndale that a development lay outside of the shoreline barred its later rejection of a shoreline permit. In both decisions, the Supreme Court reversed contrary holdings by the Court of Appeals.

For later application of the holding in Samuel's Furniture, see Twin Bridge Marine Park, L.L.C. v. State Dep't of Ecology, 130 Wn. App. 730...