Appealability of Stop Work Orders under LUPA

A recent Division One Court of Appeals case, Heller Building, LLC v. City of Bellevue, addresses when the issuance of a "stop work order" will be considered an appealable land use decision under Washington's Land Use Petition Act (LUPA), Chapter 36.370C, RCW. In the Heller case, the City of Bellevue had issued a building permit to Heller Building for the partial demolition and rebuild of an existing nonconforming structure. During demolition, the builder discovered that the existing foundation was unsafe, so additional work--which was not contemplated in the original plans--was needed. The City determined that this change in the scope of work caused the project to no longer comply with Bellevue land use code, and issued a stop work order on February 13, 2007. However, the stop work order did not state what ordinances had been violated and what steps were needed to correct the violation. After Heller responded to the City, the City issued a letter on March 2 that more fully explained the basis for its decision to stop work on the project.The builder filed a LUPA appeal on March 23, but the City argued that LUPA's 21-day statute of limitations had already passed. The City claimed that Heller should have filed its LUPA appeal within 21 days of issuance of the stop work order, not the letter explaining the reasons for the stop work order. Generally, LUPA's statute of limitations begins to run on the date a local government issues a "land use decision," which 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. The Heller Court disagreed with the City, and found that the March 2 letter explaining the stop work order, and not the stop work order itself, was the City's final determination on the matter and thus was the "land use decision" that was appealable under LUPA. In arriving at this conclusion, the Court cited its past holdings on what constitutes a "final decision," and noted that the stop work order lacked information required by the Bellevue City Code.Compliance with LUPA's 21-day appeal period is strictly enforced by Washington Courts. Thus, knowing what constitutes an appealable decision under LUPA is critical to anyone wishing to use LUPA to get his or her "day in court." Appealability of Stop Work Orders under LUPA