Mellish v. Care

• Court: Washington Supreme Court
• Writing for the Court: ALEXANDER, J.
• Citation: Mellish v. Care, 172 Wash.2d 208, 257 P.3d 641 (Wash. 2011)
• Decision Date: 28 July 2011
• Docket Number: No. 84246–9.
• Parties: Martin MELLISH, Petitioner,v.FROG MOUNTAIN PET CARE, Harold Elyea, Jane Elyea, and Jefferson County, Respondents.

172 Wash.2d 208

257 P.3d 641

Martin MELLISH, Petitioner,

v.FROG MOUNTAIN PET CARE, Harold Elyea, Jane Elyea, and Jefferson County, Respondents.

No. 84246–9.

Supreme Court of Washington, En Banc.

Argued March 17, 2011.decided July 28, 2011.

Gerald Barclay Steel, Attorney at Law, Olympia, WA, for Petitioner.

David P. Horton, Law Office of David P. Horton Inc., PS, Silverdale, WA, David W. Alvarez, Jefferson County Prosecutor's Office, Port Townsend, WA, for Respondents.Harold T. Hartinger, Attorney at Law, Tacoma, WA, amicus counsel for Harold T. Hartinger.ALEXANDER, J.

[172 Wash.2d 209] ¶ 1 We granted Martin Mellish's petition to review a decision of the Court of Appeals in which that court held that Mellish's land use petition was untimely. The primary issue before us is whether a motion for reconsideration Mellish filed with a county hearing examiner tolled the running of the 21–day time limit for filing his land use petition in superior court until such time as the motion for reconsideration was decided. We conclude that it did and, consequently, reverse the Court of Appeals.

I

¶ 2 Harold and Jane Elyea, the owners of Frog Mountain Pet Care (Frog Mountain), applied to Jefferson County (County) for a conditional use permit and a variance to expand their dog and cat boarding facility. Martin Mellish, the owner of adjoining property, opposed the application, asserting that the proposed expansion would increase noise from the facility. On June 18, 2007, a County hearing examiner granted Frog Mountain's application. After receiving a copy of the examiner's decision, the County issued Frog Mountain a “Type III Land Use Permit” dated June 20, 2007. Clerk's Papers (CP) at 215. The following day, the County mailed notice of the hearing examiner's decision and a copy of the land use permit to interested parties and neighboring property owners, including Mellish. The permit stated that “[p]ursuant to RCW 36.70C, the applicant or any aggrieved party may appeal this final decision to Jefferson County Superior Court within twenty-one (21) calendar days of the date of issuance of this land use decision.” Id. at 220.

¶ 3 On June 28, Mellish filed a motion for reconsideration with the hearing examiner. He did not, however, notify Frog Mountain that he had filed the motion.¹ The hearing examiner denied Mellish's motion on July 20, and the County mailed notice of that decision to Mellish and Frog Mountain on the day following.

¶ 4 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 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 hearing examiner's original decision. Mellish and the County, though on opposite sides of the underlying lawsuit, opposed Frog Mountain's motion, contending that the time limit for filing the lawsuit ran from the date Mellish's motion for reconsideration was denied. The superior court agreed with Mellish, and the County and 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.

¶ 5 Frog Mountain appealed to the Court of Appeals, assigning error only to the denial of its motion to dismiss. The Court of Appeals reversed the trial court, holding that the hearing examiner's original decision was the “final determination” that triggered the time limit for filing a land use petition and that Mellish's motion for reconsideration did not, therefore, toll the filing deadline. Mellish moved for reconsideration, arguing that Division Two's decision conflicted with a decision of Division One of the Court of Appeals in Skinner v. Civil Service Commission, 146 Wash.App. 171, 188 P.3d 550 (2008), aff'd, 168 Wash.2d 845, 232 P.3d 558 (2010), a case cited by Division Two in its opinion. The Court of Appeals withdrew its earlier opinion and published a new opinion, omitting any reference to Skinner. Mellish v. Frog Mountain Pet Care, 154 Wash.App. 395, 225 P.3d 439 (2010). Mellish then filed a petition for review.

¶ 6 Before we could consider the petition for review, the legislature amended LUPA to clarify that, when a timely motion for reconsideration of a local land use decision is filed, the date of the land use decision triggering the 21–day time limit for filing a land use petition in superior court is the date the local jurisdiction's decision on a motion for reconsideration is entered. H.B. Rep. on H.B. 2740, at 3, 61st Leg., Reg. Sess. (Wash. 2010); Laws of 2010, ch. 59, § 1. We directed the parties to file supplemental briefs on the applicability and effect of the new legislation. After receiving their briefs, we granted review. Mellish v. Frog Mountain Pet Care, 169 Wash.2d 1006, 234 P.3d 1172 (2010). Attorney Harold Hartinger, who had filed an amicus brief in support of Mellish's petition for review, filed an additional amicus brief in support of Mellish's position on the merits.

II

¶ 7 “ ‘In reviewing an administrative decision, an appellate court stands in the same position as the superior court.’ ” Habitat Watch v. Skagit County, 155 Wash.2d 397, 405–06, 120 P.3d 56 (2005) (quoting Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000)). Conclusions of law are reviewed de novo. Id. at 406, 120 P.3d 56.

III

¶ 8 As noted above, we are confronted with the question of whether Mellish's land use petition was timely. LUPA states that “[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served.” RCW 36.70C.040(2). A petition is timely “if it is filed and served on all parties ... within twenty-one days of the issuance of the land use decision.” RCW 36.70C.040(3). A “ ‘[l]and 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).² Mellish contends that his petition was timely because it was filed within 21 days of the hearing examiner's decision denying his motion for reconsideration. Thus, the question before us is whether the examiner's decision on the reconsideration motion was “a final determination.”

¶ 9 As we have observed above, the legislature resolved this problem, at least for future cases, when it passed House Bill 2740. The definition of “ ‘[l]and use decision’ ” in RCW 36.70C.020(2)(c) 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.

Mellish contends that this provision may not be applied retroactively. Before determining whether this contention is correct, we believe it is appropriate to decide whether the Court of Appeals correctly applied the statute in its preamendment form.

A. Was the Jefferson County hearing examiner's decision to deny Mellish's reconsideration motion the “final determination” that triggered the 21–day filing deadline?

¶ 10 Significantly, this court has held that a timely motion for reconsideration tolls the time limit for filing an appeal in superior court. Skinner, 168 Wash.2d 845, 232 P.3d 558. In Skinner, we focused on a police officer's attempt to obtain judicial review of a civil service commissioner's decision affirming his discharge. The pertinent statute governing an appeal of a civil service commissioner's decision to superior court provided, in pertinent part, that “ ‘[s]uch appeal shall be taken by serving the commission, within thirty days after the entry of such judgment or order, a written notice of appeal.’ ” Id. at 851, 232 P.3d 558 (quoting RCW 41.12.090). Although the police officer did not file his notice of appeal in the superior court within 30 days of the civil service commission's original decision, he did file it within 30 days of the commission's denial of his motion for reconsideration. Faced with these facts, the superior court dismissed the appeal as untimely. The Court of Appeals reversed that court, holding that the 30–day time limit did not begin to run until entry of the commission's order denying reconsideration. Skinner, 146 Wash.App. at 176, 188 P.3d 550. This court granted review of that decision and affirmed the Court of Appeals.

¶ 11 In reaching our decision, we observed that the statutory language required an appeal within 30 days of “ ‘such judgment or order ... concurred in by the commission or a majority thereof.’ ” Skinner, 168 Wash.2d at 851, 232 P.3d 558 (quoting RCW 41.12.090). We said that this language was broad enough to encompass the commission's original decision as well as its subsequent decision denying the officer's motion for reconsideration. Thus, we concluded that the plain language of the statute did not compel the conclusion that the 30–day period for filing a notice of appeal began to run after the commission's original decision. We discussed the practical problems that a contrary conclusion would entail:

Because there is no requirement that the Commission rule on the motion for reconsideration within 30 days of its initial decision, the aggrieved party may not learn until after 30 days from the initial decision whether to appeal and/or what judgment to appeal. The natural result would be for parties to automatically file an appeal in superior court pending a decision by the...