Martin Mellish, Respondent vs. Frog Mountain Pet Care, Et Al, Appellants
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARTIN MELLISH,
No. 37583-4-II
Respondent,
v.
FROG MOUNTAIN PET CARE, HAROLD
and JANE ELYEA,
PUBLISHED OPINION
Appellants,
JEFFERSON COUNTY,
Respondent.
Quinn-Brintnall, J. — This Land Use Petition Act (LUPA), ch. 36.70C RCW, appeal
raises novel issues of law—whether a county hearing examiner’s decision is a “final
determination” under former RCW 36.70C.020(1)(a) (1995)1 when a motion for reconsideration
is pending with the county and, if not, whether the reconsideration motion tolls the time for
appeal. If the decision was final before the county denied reconsideration, as Frog Mountain Pet
Care argues, then Martin Mellish’s appeal to the superior court was untimely and the court erred
when it denied Frog Mountain’s motion to dismiss. We reverse because a local government’s
1
The Washington State Legislature amended RCW 36.70C.020 in 2009, recodifying the
definition of “[l]and use decision” to RCW 36.70C.020(2). The legislature made no substantive
changes to the definition. Compare RCW 36.70C.020(2) with former RCW 36.70C.020(1)(a).
No. 37583-4-II
unique reconsideration motion procedure does not toll the strict LUPA filing deadline. RCW
36.70C.040(2), (3).
FACTS
Frog Mountain applied for a conditional use permit and minor variance in order to
remodel and expand its Jefferson County (County) dog and cat boarding facility. Mellish owns
property adjacent to the facility. He opposed the application because he thought the proposed
expansion was too large and would increase the facility’s noise, interfering with his enjoyment of
his property.
On June 20, 2007, the deputy hearing examiner filed his decision granting Frog
Mountain’s request. The next day, the County mailed a notice of the decision to all the interested
parties and adjacent property owners. Mellish moved for reconsideration on June 28, but did not
notify Frog Mountain of the motion.2 The County denied the motion on July 20 and mailed a
notice of decision on July 21. It issued Frog Mountain’s requested permit on July 21 when it
denied the motion.
On August 10, 2007, Mellish filed a land use petition at the Clallam County Superior
Court challenging the County’s decision. This was 20 days after the County mailed the order
denying reconsideration and issued the permit, but 50 days after the County mailed the deputy
hearings examiner’s June 20 decision granting Frog Mountain’s permit.
2
The Jefferson County Code apparently does not require a party who moves for reconsideration
or the County to notify the adverse party of the motion until the hearing examiner enters the
decision. See JCC 18.40.310, .330. But due process requires notice reasonably calculated to
apprise parties of the nature and character of proceedings which will affect them. Nisqually Delta
Ass’n v. City of DuPont, 103 Wn.2d 720, 727, 696 P.2d 1222 (1985); Duffy v. Dep’t of Soc. &
Health Servs., 90 Wn.2d 673, 678-79, 585 P.2d 470 (1978). We are concerned that the Code
may invite due process violations, but Frog Mountain did not appeal on this ground.
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Frog Mountain moved, under CR 12(b)(6), to dismiss the LUPA action as untimely
because Mellish did not file his petition within 21 days of the June 20 decision. Both Mellish and
the County, although on opposite sides of the lawsuit, opposed the motion and argued that the
LUPA statute of limitations ran from the July 20 order denying reconsideration, not the June 20
decision. The superior court agreed that the motion for reconsideration tolled the 21-day filing
requirement and, accordingly, denied the motion to dismiss. The superior court then reversed the
County’s decision on the merits. Frog Mountain appeals only the denial of its motion to dismiss.
ANALYSIS
Final Determination
We first determine whether the June 20 decision was a “final decision” and, thus, a “land
use decision” that must be appealed within 21 days. Former RCW 36.70C.020(1)(a). The June
20 decision was a final determination, notwithstanding the motion for reconsideration.
In reviewing an administrative decision, we stand in the same position as the superior
court. Habitat Watch v. Skagit County, 155 Wn.2d 397, 405-06, 120 P.3d 56 (2005) (quoting
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)). We
review conclusions of law de novo. Wenatchee Sportsmen, 141 Wn.2d at 176.
LUPA requires that a party file a petition for review within 21 days of the date a land use
decision is issued.3 RCW 36.70C.040(2), (3). This 21-day statute of limitations is strict; the
doctrine of substantial compliance does not apply to it.
3
RCW 36.70C.040(2); Asche v.
As relevant here, a land use decision is “issued” three days after the local jurisdiction mails a
written decision. RCW 36.70C.040(4)(a). In this appeal, there is no dispute that Mellish filed the
land use petition within 21 days of the denial of reconsideration but more than 21 days from the
original hearing examiner’s decision.
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No. 37583-4-II
Bloomquist, 132 Wn. App. 784, 795-96, 133 P.3d 475 (2006), review denied, 159 Wn.2d 1005
(2007); Overhulse Neighborhood Ass’n v. Thurston County, 94 Wn. App. 593, 599, 972 P.2d
470 (1999); see also Spice v. Pierce County, 149 Wn. App. 461, 466-67, 204 P.3d 254 (2009).
LUPA defines a “land use decision” as “a final determination by a local jurisdiction’s body or
officer with the highest level of authority to make the determination, including those with
authority to hear appeals” on particular types of actions, including the action at issue here.
Former RCW 36.70C.020(1) (emphasis added).
The County argues that because LUPA is silent on what constitutes a “final
determination,” the legislature has implicitly delegated the designation of finality to the discretion
of each county and, thus, in this case, we must apply the Jefferson County Code definition of a
“final determination.” The Clallam County Superior Court followed this approach. But the
County cites no law for the proposition that each county’s local definition of finality controls and
our legislature and Supreme Court have indicated a contrary rule.
In enacting LUPA, our legislature expressed an intention to “establish[] uniform,
expedited appeal procedures . . . in order to provide consistent, predictable, and timely judicial
review.” RCW 36.70C.010. An appeal procedure that varies based on each local government’s
definition of “final determination” would not be “uniform.”
RCW 36.70C.010.
Instead of
deferring to local ordinances, our Supreme Court has supplied common law and dictionary
definitions to explain what is a “final determination” under LUPA with uniformity across
Washington State. See, e.g., Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440, 452,
54 P.3d 1194, 63 P.3d 764 (2002). The County’s suggested local approach would essentially
give counties power to determine whether a court has jurisdiction over a land use petition. In
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No. 37583-4-II
theory, accepting the County’s argument would also allow a county to delay a LUPA appeal
indefinitely. We avoid absurd results that contradict both our legislature’s intent and our Supreme
Court’s mandates. Instead, we apply the following case law to determine whether the June 20
decision at issue here was “final” under LUPA.
Our Supreme Court expressly defined “final determination” and “final decision” (terms it
uses interchangeably) in the LUPA context. It held that Washington courts should apply the term
“final decision” uniformly in the context of appellate jurisdiction, including a superior court’s
appellate jurisdiction over a LUPA case. See Samuel’s Furniture, 147 Wn.2d at 452. In all
appellate contexts, “[a] ‘final decision’ is ‘[o]ne which leaves nothing open to further dispute and
which sets at rest [the] cause of action between parties.’” Twin Bridge Marine Park, L.L.C. v.
Dep’t of Ecology, 162 Wn.2d 825, 858, 175 P.3d 1050 (2008) (first two alterations in original)
(quoting Samuel’s Furniture, 147 Wn.2d at 452). “‘A judgment is considered final on appeal if it
concludes the action by resolving the [petitioner’s] entitlement to the requested relief.’” Samuel’s
Furniture, 147 Wn.2d at 452 (quoting Purse Seine Vessel Owners v. State, 92 Wn. App. 381,
387, 966 P.2d 928 (1998), review denied, 137 Wn.2d 1030 (1999)).
Here, there is no question that the June 20, 2007 decision was a final determination before
Mellish moved for reconsideration. First, the hearing examiner wrote the decision and he was the
“local jurisdiction’s . . . officer with the highest level of authority to . . . hear appeals.” Former
RCW 36.70C.020(1). The County incorrectly characterizes the reconsideration motion as an
“appeal.” But an “appeal” is “[a] proceeding undertaken to have a decision reconsidered by a
higher authority.” Black’s Law Dictionary 112 (9th ed. 2009) (emphasis added). In this case,
the same hearings examiner who issued the original decision adjudicated the reconsideration
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No. 37583-4-II
motion; he is not a higher authority than himself. Thus, a motion to reconsider is not an appeal to
a higher authority and this portion of LUPA’s definition of a “land use decision” is satisfied as to
the June 20 decision.
Second, the June 20 decision was a final determination. It left “‘nothing open to further
dispute and . . . set[] at rest [the] cause of action between parties’” because it conclusively
resolved every issue in the petition. Twin Bridge Marine Park, 162 Wn.2d at 858 (quoting
Samuel’s Furniture, 147 Wn.2d at 452). There was technically a further dispute over whether the
hearings examiner should reconsider the June 20 decision, but the applicant was unaware of it and
the June 20 decision “‘conclude[d] the action by resolving the [petitioner’s] entitlement to the
requested relief.’” Samuel’s Furniture, 147 Wn.2d at 452 (quoting Purse Seine Vessel Owners,
92 Wn. App. at 387). The reconsideration motion concerned whether the June 20 decision should
be reconsidered, not whether the petitioner was entitled to relief.
Indeed, legislation and court rules have consistently treated reconsideration motions as
motions made after an adjudicator rendered a final decision. The Jefferson County Code, Civil
Rules, the Rules of Appellate Procedure, to name but a few, clarify that a party may move to
reconsider only a final decision, as defined by those rules. JCC 18.40.310; CR 59; RAP 12.4; see
also Fed. R. Civ. P. 59(e) (reconsideration available only of final decision). We find only two
Washington
laws
that
mandate
that
a
decision
becomes
non-final
when
pending
reconsideration—one is the Industrial Insurance Act, Title 51 RCW, and the other is an outdated
section of the Administrative Procedures Act (APA), former ch. 34.04 RCW, that the legislature
revoked in 1988. Former RCW 51.52.050(1) (2004); former RCW 34.04.130(1) (1959)4; Laws
4
That statute provided, in relevant part: “Where the agency’s rules provide a procedure for
rehearing or reconsideration, and that procedure has been invoked, the agency decision shall not
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No. 37583-4-II
of 1989, ch. 175; see also RCW 34.05.470(3), .542(2) (current APA, ch. 34.05 RCW, requires
filing within 30 days after service of the final order, but tolls filing deadline when reconsideration
is pending). Both acts explicitly specify that a timely5 motion for reconsideration renders the prior
decision non-final. LUPA contains no provision that explicitly or implicitly tolls the finality of the
hearings examiner’s decision.
Former RCW 51.52.050(1); ch. 36.70C RCW; former RCW
34.04.130(1).
In short, the June 20 decision was final. By uniformly applying LUPA’s plain text, as we
must,6 we conclude that Mellish’s reconsideration motion did not render the June 20 decision nonfinal while that motion was pending with the hearings examiner.7
Statutory Tolling
A remaining question implied but not explicitly raised by this case is whether a
reconsideration motion tolls the deadline to file a LUPA appeal. We hold that reconsideration
does not toll the filing deadline.
Other than LUPA, every Washington law we have examined expressly provides that a
reconsideration motion either renders an otherwise final decision non-final or tolls the deadline for
be final until the agency shall have acted thereon.” Former RCW 34.04.130(1).
5
It is not clear here whether Mellish’s motion for reconsideration was timely under the Jefferson
County Code, but the parties have never litigated this issue.
6
7
Samuel’s Furniture, 147 Wn.2d at 452.
We note that the County apparently contemplated this result when it crafted its Code. If the
time limits set out in the Jefferson County Code were followed, the hearings examiner would have
timely denied or granted reconsideration several days before Mellish was required to file his
LUPA petition under the 21-day filing requirement. The hearings examiner was late in issuing his
reconsideration decision, but Mellish was nevertheless strictly required to file his land use petition
before the statutory deadline.
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No. 37583-4-II
filing an appeal. See RCW 34.05.470(3), .542(2) (APA); former RCW 51.52.050 (Industrial
Insurance Act); RAP 5.2(e)(2); former RCW 34.04.130(1); see also Fed. R. App. P.
4(a)(4)(A)(iv) (same). LUPA contains no similar provision. Ch. 36.70C RCW.
This omission creates an odd result. “[A] practitioner who is contemplating a challenge to
a judgment may be tempted to use the relatively simple and inexpensive motion for
reconsideration [as an] alternative to an appeal.” Karl B. Tegland, 2A Washington Practice:
Rules Practice, RAP 2.4, at 178 (6th ed. 2004). As written now, however, LUPA requires that an
aggrieved party file a land use petition within 21 days of the final decision, regardless of whether
reconsideration is pending. If the local government grants reconsideration, even in part, such a
land use petition would probably become moot. And it is unclear whether a petitioner has
exhausted his administrative remedies, a requirement for standing under LUPA, if the local
government provides a method for reconsideration that he has declined to pursue.
RCW
36.70C.060; see Richard J. Pierce, Jr., 2 Administrative Law Treatise §§ 15.1-15.17, at 965-1106
(4th ed. 2002).
“When statutory language is clear, we assume that the legislature ‘meant exactly what it
said’ and apply the plain language of the statute.” Stroh Brewery Co. v. Dep’t of Revenue, 104
Wn. App. 235, 239, 15 P.3d 692 (quoting Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351
(1997)), review denied, 144 Wn.2d 1002 (2001). See also Waste Mgmt. of Seattle v. Utils. &
Transp. Comm’n, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994) (if statute is unambiguous,
reviewing court determines legislative intent from the statutory language alone). As noted, RCW
36.70C.040 provides that “[a] land use petition is barred, and the [superior] court may not grant
review, unless the petition is timely filed with the court.” RCW 36.70C.040(2). “The petition is
8
No. 37583-4-II
timely if it is filed . . . within twenty-one days of the issuance of the land use decision.” RCW
36.70C.040(3). Moreover, LUPA “shall be the exclusive means of judicial review of land use
decisions,” subject to exceptions not applicable here. RCW 36.70C.030(1). Finally, while LUPA
incorporates the superior court civil rules as to procedural matters, it does so only “to the extent
that the rules are consistent with [LUPA].” RCW 36.70C.030(2). Here, the plain language of the
noted LUPA provisions governs.
Notably, in other contexts, where the legislature has desired to alter the effect of
unambiguous statutory provisions, such as by tolling a statute of limitations, the legislature has
done so expressly. For example, RCW 4.16.170 provides that “[f]or the purpose of tolling any
statute of limitations an action shall be deemed commenced when the complaint is filed or
summons is served whichever occurs first.” LUPA contains no similar tolling provision for
motions for reconsideration. Accordingly, we are required to apply LUPA’s unambiguous review
provisions. Cf. Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 115 S. Ct. 1537, 131
L. Ed. 2d 465 (1995) (despite other administrative laws to the contrary, in deportation cases,
congress intended strict filing deadline that is not affected by motions to reconsider).
Equitable Tolling
We also note that the facts of this case implicate the doctrine of equitable tolling. A court
may toll the statute of limitations when justice requires such tolling but must use the doctrine
sparingly. State v. Duvall, 86 Wn. App. 871, 875, 940 P.2d 671 (1997), review denied, 134
Wn.2d 1012 (1998); Finkelstein v. Sec. Props., Inc., 76 Wn. App. 733, 739, 888 P.2d 161,
review denied, 127 Wn.2d 1002 (1995). “The predicates for equitable tolling are bad faith,
deception, or false assurances by the defendant and the exercise of diligence by the plaintiff.”
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Millay v. Cam, 135 Wn.2d 193, 206, 955 P.2d 791 (1998) (citing Finkelstein, 76 Wn. App. at
739-40). The party asserting that equitable tolling should apply bears the burden of proof.
Benyaminov v. City of Bellevue, 144 Wn. App. 755, 767, 183 P.3d 1127 (2008), review denied,
165 Wn.2d 1020 (2009).
Mellish did not argue below that the statute of limitations should be equitably tolled. The
trial court, however, examined communications that the County made to Mellish regarding when
to file his land use petition. The correspondence is inconsistent. In some communications, the
County attorney suggested that Mellish was required to await the ruling on reconsideration before
he filed his land use petition, while another communication stated that the deadline ran from the
June 20 decision.
These facts do not mandate equitable tolling. Mellish did not demonstrate that he relied
on the false explanations of the law and equitable tolling does not apply when a nonparty attorney,
who did not represent the petitioner, supplied the false assurance. See Millay, 135 Wn.2d at 206.
On the other hand, the County did become the defendant in the superior court appeal and it is
possible that Mellish could prove equitable tolling. We have the authority, and perhaps a duty, to
remand for a ruling on equitable principles that a case clearly invokes. Pardee v. Jolly, 163
Wn.2d 558, 575-76, 182 P.3d 967 (2008). But this case does not clearly invoke the doctrine of
equitable tolling. From the record before us, Frog Mountain was never served with notice that
Mellish had filed a motion for reconsideration and after the LUPA filing deadline passed and the
County issued the permit on July 21, it had every right to proceed with its then-vested right to
modify its dog kennel. It is not unfair to disallow equitable tolling in this situation. For these
reasons, we do not take the extraordinary step of remanding on equitable grounds that the parties
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No. 37583-4-II
have not raised.
11
No. 37583-4-II
Timeliness
Mellish’s petition is time barred. LUPA provides an extremely strict command regarding
the filing deadline: “A land use petition is barred, and the court may not grant review, unless the
petition is timely filed with the court.” RCW 36.70C.040(2). Either Mellish complied with the
deadline of filing his petition 21 days after the County issued the June 20 decision or his petition is
barred. As the County mailed the decision on June 21 and it is deemed “issued” three days later,
the 21-day time bar runs from June 24, 2007. RCW 36.70C.040(2), (4)(a). Mellish filed his land
use petition on August 10. This was more than 21 days after the hearings examiner issued the
final decision that informed Frog Mountain that its application for a permit to modify its kennel
was approved. This petition is barred.
We are aware that this result may seem inequitable. In nearly every legal context, a timely
reconsideration motion tolls the statute for appealing a matter. No case law stated the contrary in
the LUPA context until we addressed the question today and, until we filed this opinion,
reasonable practitioners and pro se litigants may have concluded that filing a reconsideration
motion gave them more time to file a LUPA appeal. Although we are concerned for those who
did not have the benefit of a reviewing court’s analysis of this issue, the law is clear and the facts
on record do not give rise to relief through equitable tolling. Accordingly, we must reverse the
superior court’s ruling in which it denied Frog Mountain’s motion to dismiss the action as
untimely.
Attorney Fees
Respondent County requests attorney fees if it prevails. It has not prevailed and is not
entitled to fees.
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No. 37583-4-II
We reverse and remand to the trial court with directions that it dismiss this LUPA appeal
with prejudice.
QUINN-BRINTNALL, J.
We concur:
VAN DEREN, C.J.
PENOYAR, J.
13
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