S-3681.1          _______________________________________________


                            SUBSTITUTE SENATE BILL 6113



State of Washington              52nd Legislature             1992 Regular Session


By Senate Committee on Environment & Natural Resources (originally sponsored by Senators Craswell, Owen, Oke and McCaslin)


Read first time 02/07/92.Requiring reviews of final orders on permit applications under the shoreline management act to be on the record.

     AN ACT Relating to review of local permits under the shoreline management act; and amending RCW 90.58.180.




     Sec. 1.  RCW 90.58.180 and 1989 c 175 s 183 are each amended to read as follows:

     (1) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a request for the same within thirty days of the date of filing as defined in RCW 90.58.140(6).

     Concurrently with the filing of any request for review with the board as provided in this section pertaining to a final order of a local government, the requestor shall file a copy of his request with the department and the attorney general.  If it appears to the department or the attorney general that the requestor has valid reasons to seek review, either the department or the attorney general may certify the request within thirty days after its receipt to the shorelines hearings board following which the board shall then, but not otherwise, review the matter covered by the requestor:  PROVIDED, That the failure to obtain such certification shall not preclude the requestor from obtaining a review in the superior court under any right to review otherwise available to the requestor.  The department and the attorney general may intervene to protect the public interest and insure that the provisions of this chapter are complied with at any time within fifteen days from the date of the receipt by the department or the attorney general of a copy of the request for review filed pursuant to this section.  The shorelines hearings board shall initially schedule review proceedings on such requests for review without regard as to whether such requests have or have not been certified or as to whether the period for the department or the attorney general to intervene has or has not expired, unless such review is to begin within thirty days of such scheduling.  If at the end of the thirty day period for certification neither the department nor the attorney general has certified a request for review, the hearings board shall remove the request from its review schedule.

     (2) The department or the attorney general may obtain review of any final order granting a permit, or granting or denying an application for a permit issued by a local government by filing a written request with the shorelines hearings board and the appropriate local government within thirty days from the date the final order was filed as provided in RCW 90.58.140(6).

     (3) ((The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings.)) (a) Review by the shorelines hearings board shall be on the record developed by the local government and not de novo.  The local government shall maintain an official record of the proceeding which substantially conforms to the requirements for adjudicative proceedings under RCW 34.05.476.  Judicial review of such proceedings of the shorelines hearings board shall be based upon the record developed by the local government, together with written and oral argument submitted to the board, and may be had as provided in chapter 34.05 RCW.

     (b) Review on the record by the shorelines hearings board shall be limited to a determination as to whether the local government's action on the permit application was (i) in accordance with required procedures, (ii) arbitrary and capricious, or (iii) consistent with the intent of the shoreline management act and the applicable shoreline master program.

     (4) Local government may appeal to the shorelines hearings board any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval.  The board shall make a final decision within sixty days following the hearing held thereon.

     If the board determines that the rule, regulation, or guideline:

     (a) Is clearly erroneous in light of the policy of this chapter; or

     (b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or

     (c) Is arbitrary and capricious; or

     (d) Was developed without fully considering and evaluating all material submitted to the department by the local government; or

     (e) Was not adopted in accordance with required procedures;

the board shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government, a new rule, regulation, or guideline.  Unless the board makes one or more of the determinations as hereinbefore provided, the board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect.

     (5) Rules, regulations, and guidelines shall be subject to review in superior court, if authorized pursuant to RCW ((34.05.538)) 34.05.570(2):  PROVIDED, That no review shall be granted by a superior court on petition from a local government unless the local government shall first have obtained review under subsection (4) of this section is filed within three months after the date of final decision by the shorelines hearings board.