Thursday, June 30, 2011

New Land Use Petition Act ("LUPA") Decisions

Our appeals courts issued a pair of opinions on LUPA in the past few months, each clarifying the rules for appeal of land use decisions.

In Vogel v. City of Richland the Division 3 Court of Appeals held that the final land use decision reclassifying a street as private, rather than public, was issued, for purposes of 21-day limitations period applicable under LUPA, on date that first public record was made finalizing change. In this case, the public record was the permit approving the entrance gate detail, which rendered the road private. The fact that the public was aware of the approval by way of internal city documents generally referring to the decision, but lacking in specifics, at an earlier date did not start the limitations period running earlier.

In Brotherton v. Jefferson County the Division 2 Court of Appeals held that the denial of the landowners' request for a waiver from state and local sewage system regulations was a land use decision, and therefore deadline for appealing final decision of local land use authorities contained in LUPA applied to the landowners' request for judicial review. The Jefferson County Board of Health's denial of the landowners' waiver request was the County's final determination on the enforcement of ordinances regulating the use of real property and was, therefore, a “land use decision” within the meaning of LUPA.

Each of these decisions hones a different edge of the LUPA cutting tool. Together, they reaffirm what all good land use practitioners already know: each communication from a governmental authority with regard to a property or its development is worthy of close scrutiny in order to determine whether it is a decision subject to LUPA's brief and unforgiving 21-day appeal period.

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