LUPA’s Filing and Service Requirements are No Joke

LUPA is the “land use petition act”, which is the short title for the statute (RCW 36.70C) which governs judicial review of land use decisions. In 1995, the Washington State Legislature adopted LUPA to provide direct judicial review of land use decisions. Before LUPA, people affected by a land use decision had to file a writ of certiorari. The procedural pitfalls for proper filing of a writ resulted in dismissal of many writs. Another complication with writs was figuring out what the proper standard of review should be applied. LUPA provides a much simpler and faster avenue for appeals of land use decisions.

Land use decisions are defined in the statute and include the highest and final decision on many quasi judicial and administrative decisions involving land use. These decisions could include issuance of a building permit or other permits along with administrative decisions like issuance of a stop work order. Whether a decision qualifies as a “land use decision” is often argued during LUPA appeals and is the substance of judicial dismissal for lack of jurisdiction.

In my view, the most important jurisdictional issues to get right for LUPA appeals are, when and how to file and serve a LUPA petition. These are nuts and bolts type hurdles that are significant because if the filing and service of a LUPA petition is done incorrectly it results in dismissal per RCW 36.70C.040. A LUPA petition must be filed within 21 days of the issuance of a land use decision. This requirement sounds simple but many petitions are dismissed for failure to timely file the petition. For instance, the date of issuance of a land use decision is not always obvious which can provide some anxiety when it comes to calculating the 21 days.  Another situation that can arise is lack of notice that a land use decision is issued.

Washington courts have not fully resolved this notice issue so, arguing lack of notice may still result in dismissal if one files their LUPA appeal after the 21 day time frame.  Next, the LUPA appeal must be served on every party named in the statute and the local jurisdiction which issued the decision. Again, this also appears straight forward. Service on a local jurisdiction must be upon the county auditor or during the normal office hours, upon the deputy auditor.  Petitions served later than normal office hours for the county auditor have been dismissed.  Dismissal of petitions have also occurred when every party named in the statue is not served.

Dismissal of a LUPA petition for failing to timely file and properly serve a petition is a harsh penalty but, with some care and diligence dismissal can be avoided.

Simi Jain, Attorney