161 Wash. App. 770
Wash. Ct. App.2011Background
- Vogels challenge a land use decision reclassifying Meadow Hills Drive in Crested Hills from public to private as untimely under LUPA's 21-day limit.
- City staff issued memoranda (June 10 and June 17, 2008) discussing processing Bauder’s request as a minor amendment, not memorializing final terms.
- Public records thereafter show July 9, 2008 final, public-records finalization of the private-road substitution; July 10 permit likewise reflects a private street and no public hearing.
- Vogels filed a LUPA petition on July 29 alleging the decision to substitute a private road was taken and memorialized in a final form.
- Superior Court dismissed as untimely, holding the decision was publicly known on June 10, 2008, triggering the 21-day clock.
- Court holds issuance occurred July 9, 2008 when the final public record memorialized the decision, making the petition timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is a land use decision issued under LUPA? | Vogels argue issuance occurred upon final public memorialization, not mere references. | Bauder contends issuance was when staff memorandum indicated procedural choice and not final terms. | Issuance occurs when the final land use decision is memorialized in public record |
| Whether memoranda discussing procedure can memorialize the decision under LUPA | Memoranda are insufficient memorialization of final terms. | Memoranda could reflect the decision and trigger issuance. | Memoranda about process cannot memorialize a final land use decision |
| Whether the final land use decision occurred on June 10, 2008 or July 9, 2008 | Final issuance occurred July 9, 2008, when the public record finalized the decision. | Issue occurred on June 10, 2008 due to staff memoranda. | Final issuance occurred July 9, 2008; petition timely |
Key Cases Cited
- Habitat Watch v. Skagit County, 155 Wn.2d 397 (2005) (defines issuance when not by written/ordinance, by memorialization in public record)
- Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440 (2002) (final decision requires nothing left open; defines 'final decision' concept)
- Chelan County v. Nykreim, 146 Wn.2d 904 (2002) (recognizes scope of LUPA and ministerial decisions within its review)