WSR 02-06-010

PERMANENT RULES

SHORELINES HEARINGS BOARD


[ Filed February 22, 2002, 10:42 a.m. ]

Date of Adoption: February 21, 2002.

Purpose: The purpose of this rule is to clarify that the scope of review is de novo and the standard of proof is preponderance of the evidence. The rule amendments also clarify the legal criteria to be applied.

Citation of Existing Rules Affected by this Order: Amending WAC 461-08-500 and 461-08-505.

Statutory Authority for Adoption: RCW 90.58.175.

Adopted under notice filed as WSR 01-20-022 on September 24, 2001.

Changes Other than Editing from Proposed to Adopted Version: Changes clarifying that the preponderance of the evidence standard is a burden of proof standard were made. These changes were made in response to comments received. The language originally proposed stated: "The standard of review shall be preponderance of the evidence unless otherwise required by law.["] The substitute language states: "The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law." The substance of the amendment has not changed but the new language does provide more clarity.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 2, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

February 21, 2002

Robert V. Jensen

Chair

OTS-5504.1


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-500   Scope and standard of review and burden of proof.   (1) Hearings upon petitions for review shall be quasi-judicial in nature ((and)). The scope and standard of review shall be ((conducted)) de novo unless otherwise required by law. However, the board shall conduct the following types of hearings on the record compiled by the department:

(a) Petitions for review of department decisions to adopt or approve rules, regulations or guidelines pursuant to chapter 90.58 RCW; and

(b) Petitions for review to approve, reject or modify a proposed master program or master program amendment.

(2) The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law.

(3) Persons requesting review pursuant to RCW 90.58.180 (1) and (2) shall have the burden of proof in the matter. The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders.

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-500, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-505   ((Standard of review.)) Legal criteria.   (1) In deciding upon a petition for review brought pursuant to RCW 90.58.180 (1) and (2) the board shall make its decision considering the following ((standards)) legal criteria:

(a) Consistency with the requirements of chapter 43.21C RCW, the State Environmental Policy Act.

(b) From June 1, 1971, until such time as an applicable master program has become effective, whether the action of the local government unit is consistent with:

(i) The policy of RCW 90.58.020; and

(ii) The guidelines and regulations of the department; and

(iii) So far as can be ascertained the master program being developed for the area.

(c) After adoption or approval, as appropriate, by the department of an applicable master program, whether the action of the local government is consistent with the applicable master program and the provisions of chapter 90.58 RCW, and the department's implementing regulations.

(2) Evidence that is material and relevant to determination of the matter consistent with the standards set out in subsection (1) of this section, subject to these rules, shall be admitted into the record whether or not such evidence had been submitted to the local government unit.

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-505, filed 7/3/96, effective 8/3/96.]

Washington State Code Reviser's Office