HomeMy WebLinkAbout03-05-2025 - Order of Dismissal -- Olivet
Order of Dismissal
PAGE 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
THE HEARING EXAMINER OF THE CITY OF RENTON
IN RE:
James Colt; Mt. Olivet Cemetery Co. Inc.
Administrative Appeal of Notice of
Violation
Code No. CODE-24-000261
ORDER DISMISSING APPEAL AS
UNTIMELY
Mr. Colt’s appeal of a Notice of Violation (NOV) issued for CODE-24-000261 is
dismissed as untimely.
Evidence Relied Upon
1. November 13, 2024 letter to Mr. Colt from Jason Seth dated November 13, 2024
along with 28 pages of attachments.
2. December 3, 2024 email from Elizabeth Luksetich with six pages of
attachments.
3. December 6, 2024 email from Patrice Kent with 7 attachments.
Findings of Fact
1. The City of Renton (City) issue four NOVs against James Colt and Mt. Olivet
Cemetery Co. Inc. under the same file number for the same tree cutting
violations on May 7, 2024, June 12, 2024, August 13, 2024, and finally on
September 4, 2024.
2. Mr. Colt filed an appeal of one of the NOV on October 29, 2024.
Order of Dismissal
PAGE 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
3. On November 7, 2024 the City emailed a request to the examiner to have the
appeal dismissed as untimely. This request was forwarded to Mr. Colt on or
about November 13, 2024.
4. Mr. Colt’s attorney, Julie Pendleton, submitted a letter response on December 3,
2024. Ms. Pendleton explained that the appeal was only untimely due to a
miscommunication in her office as to which attorney would be handling the
appeal. Ms. Pendleton noted that Mr. Colt had asked her office to handle the
appeal on May 13, 2024 but that through no fault of Mr. Colt the appeal was
filed late.
Discussion
Mr. Colt asserts that his untimely appeal should be accepted because it was untimely
due to excusable neglect under CR 60. CR 60 is not found to apply to untimely land
use appeals.
Mr. Colt relies upon a couple CR 60 cases in which default judgments are overturned
due to the excusable neglect of counsel. Civil rules can provide guidance in resolving
procedural issues in administrative land use appeals. However it’s highly questionable
whether CR 60 by its own terms applies to the timely filing of complaints or appeals. If
its terms are met, CR 60b authorizes a court to “…relieve a party or the party’s legal
representative from a final judgment, order, or proceeding..” In this case Mr. Colt is
not requesting that he be relieved any such judgment, order or proceeding. He is asking
relief from an obligation to file a timely appeal.
Although civil rules can serve as a useful source of procedural guidance in the absence
of anything more direct, in this case the Land Use Petition Act (LUPA), Chapter 36.70C
RCW, is more directly applicable. Code enforcement decisions qualify as land use
decision under LUPA. See RCW 36.70C.020(2)(c). The filing of LUPA appeals for
land use decisions is governed by RCW 36.70C.040(2). That statute provides that a
“land use petition is barred, and the court may not grant review, unless the petition is
timely filed…” The City’s NOV appeal filing requirement reflects this language in
providing that “[a]ny request for a hearing that is not timely filed with the City..” shall
be denied. RMC 1-10-5B1.
Washington courts have consistently held that the procedural requirements of LUPA
must be strictly met before the superior court's jurisdiction may be properly invoked.
See, e.g., Durland v. San Juan County, 182 Wn.2d 55, 67, 340 P.3d 191 (2014) ("[W]e
require strict compliance with LUPA's bar against untimely or improperly served
petitions."); RST P'ship v. Chelan County, 9 Wn.App. 2d 169, 175, 442 P.3d 623 (2019)
("The petitioner must strictly meet the procedural LUPA requirements before properly
Order of Dismissal
PAGE 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
invoking a trial court's appellate jurisdiction under the act."); Citizens to Pres. Pioneer
Park, LLC v. City of Mercer Island, 106 Wn.App. 461, 467, 24 P.3d 1079 (2001) ("The
procedural requirements of the Land Use Petition Act (LUPA) have to be strictly met
before a trial court's appellate jurisdiction under the Act is properly invoked.").
LUPA case law also makes clear that its strict construction only applies to jurisdictional
requirements such as filing deadlines. “While courts have strictly construed the timing
and parties that must be served in a LUPA proceeding, the courts have not elevated
other procedural requirements to a ‘jurisdictional threshold.’” Prosser Hill Coalition v.
Spokane County, 176 Wash. App. 280 (Wash. Ct. App. 2013). This distinction further
supports the conclusion that principles of excusable neglect under CR 60 may apply to
other portions of a LUPA proceeding, but they do not apply to appeal filing deadlines
because they are jurisdictional.
Like the timing requirements for the filing of LUPA appeals, the timing requirements
for administrative appeals of NOVs are jurisdictional and must be strictly construed.
No LUPA case law has ever recognized an exception for excusable neglect or anything
similar to CR 60 grounds for relief. The only potential grounds for relief from filing
deadlines that’s been recognized under LUPA has been equitable tolling where
untimeliness is essentially attributable to misdirection from the decision-making county
or city. Nickum v. City of Bainbridge Island, 153 Wn. App. 366 (2009).
Mr. Colt filed failed to file his appeal within 15 days of the NOV under appeal as
required by RMC 1-10-5B1. Excusable neglect or any other grounds under CR 60 that
doesn’t qualify as equitable tolling is not grounds for extending the deadline. The
appeal must be dismissed as untimely.
Order
Mr. Colt’s appeal of the NOV for the above-captioned matter is dismissed as untimely
for failing to meet the appeal deadline set by RMC 1-10-5(B)(1).
ORDERED this 5th day of March 2025.
City of Renton Hearing Examiner
Order of Dismissal
PAGE 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Appeal Right
This order is a final decision and is appealable to superior court within 21 days of the
issuance of this order as governed by the Washington State Land Use Petition Act,
Chapter 36.70C RCW.
