WSR 97-04-008

PERMANENT RULES

GROWTH MANAGEMENT

HEARINGS BOARDS

[Filed January 24, 1997, 11:02 a.m., effective March 1, 1997]

Date of Adoption: January 23, 1997.

Purpose: In order to reflect recent legislative changes (1995 and 1996) and board experience, the boards need to amend their rules of practice and procedure.

Citation of Existing Rules Affected by this Order: Repealing WAC 242-02-554 and 242-02-850 through 242-02-870; amending WAC 242-04-050, 242-02-010, 242-02-030, 242-02-040, 242-02-060, 242-02-070, 242-02-074, 242-02-110, 242-02-130, 242-02-210, 242-02-220, 242-02-250, 242-02-260, 242-02-270, 242-02-310, 242-02-510, 242-02-520, 242-02-521, 242-02-532, 242-02-533, 242-02-550, 242-02-560, 242-02-570, 242-02-650, 242-02-660, 242-02-670, 242-02-710, 242-02-830, 242-02-880 and 242-02-892; new sections WAC 242-02-52001, 242-02-52002, 242-02-832 and 242-02-834; and withdrawing WAC 242-02-240, 242-02-634, and 242-02-890.

Statutory Authority for Adoption: RCW 36.70A.270(7).

Adopted under notice filed as WSR 97-01-066 on December 13, 1996.

Changes Other than Editing from Proposed to Adopted Version: Three sections withdrawn (WAC 242-02-240, 242-02-634, and 242-02-890). No changes other than minor editing changes from proposed to final.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 1, amended 11, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 3, amended 22, repealed 6.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 4, amended 30, repealed 6.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.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: March 1, 1997.

January 23, 1997

E. G. McGuire

Board Member

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-010 Organization. Three growth management hearings boards were established pursuant to chapter 36.70A RCW. Each board is an independent quasi-judicial agency of the state of Washington with three members appointed by the governor who are qualified by experience or training in matters pertaining to land use planning. These rules were developed and adopted jointly by all three boards pursuant to RCW 36.70A.270(((6))) (7). They should be read in conjunction with the act and the Administrative Procedure Act, chapter 34.05 RCW.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-010, filed 11/22/94, effective 12/23/94; 92-21-034, 242-02-010, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-030 Jurisdiction. This section is intended to be general and informational only, and failure to list matters over which a board has jurisdiction at law shall not constitute any waiver of or withdrawal from such jurisdiction.

(1) Geographic jurisdiction. Each board shall hear only those matters pertaining to the cities and counties located within its jurisdictional boundaries. The boundaries are as follows:

(a) The Eastern Washington board includes all counties and the cities now or subsequently located within these counties that are required or choose to plan under RCW 36.70A.040 and are located east of the crest of the Cascade mountains;

(b) The Central Puget Sound board includes and is limited to King, Pierce, Snohomish and Kitsap counties, and the cities now or subsequently located within those counties; and

(c) The Western Washington board includes all counties and the cities now or subsequently located within those counties that are required or choose to plan under RCW 36.70A.040 and are located west of the crest of the Cascade mountains and are not included in the Central Puget Sound board boundaries;

(d) Skamania County, should it be required or choose to plan under RCW 36.70A.040, may elect to be included within the jurisdictional boundaries of the Western or Eastern Washington boards.

(2) Subject matter jurisdiction. Each board shall hear and determine petitions alleging that a state agency, county, or city is not in compliance with the requirements of the act, or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to plans, development regulations, and amendments ((thereto)) adopted under the act or chapter 90.58 RCW; or, petitions from cities or the governor relating to an adopted county-wide planning policy; or, that the twenty-year growth management planning projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.

(3) Jurisdictional issues. Any party to a proceeding before a board may, by motion, challenge the jurisdiction of that board in any petition for review. A board may, upon its own motion, raise such an issue.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-030, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-040 Definitions. As used in this title, the following terms shall have the following meaning:

(1) "Act" means chapter ((17, Laws of 1990 1st ex. sess. and chapter 32, Laws of 1991 sp. sess.)) 36.70A RCW, and subsequent amendments.

(2) "Board" means the Eastern Washington, Western Washington or Central Puget Sound growth management hearings board.

(3) "Hearing examiner" means an authorized agent of a board who has a demonstrated knowledge of land use planning and law, appointed to assist the board in the performance of its hearing function as delegated by the board as provided by the act.

(4) "Joint boards" means the three independent boards meeting or acting jointly.

(5) "Party" means any person named in the caption of a case before a board.

(6) "Person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit, or public or private organization or entity of any character.

(7) "Petitioner" means a person who appeals any matter or who brings a petition for rule making to the board. A petitioner is a party to a case before the board.

(8) "Presiding officer" means any member of a board, or a hearing examiner, who is assigned to conduct a conference or hearing as directed by a board. The presiding officer shall be designated pursuant to WAC 242-02-521 and have authority as provided by WAC 242-02-522.

(9) "Publication" means:

(a) For a city, the date the city publishes the ordinance or summary of the ordinance adopting a comprehensive plan, development regulations or subsequent amendment, as is required to be published, or the date the city publishes notice that the shoreline master program or amendment has been approved or disapproved by the department of ecology;

(b) For a county, the date the county publishes the notice that it has adopted a comprehensive plan, development regulations or other enactments, or subsequent amendments pursuant to RCW 36.70A.290(2), or the date the county publishes notice that the shoreline master program or amendment has been approved or disapproved by the department of ecology.

(10) "Respondent" means a person who is named as a responding party in any petition for review before a board.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-040, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-040, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-040, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-060 Computation of time. The time within which any act shall be done, as provided by these rules, shall be computed by excluding the first day and including the last, unless the last day is a ((Saturday, a)) Sunday((,)) or a legal holiday, and then it is excluded and the next succeeding day which is neither a ((Saturday, a)) Sunday((,)) nor a legal holiday is included. When the period of time prescribed or allowed is less than seven days, intermediate ((Saturdays,)) Sundays((,)) and holidays shall be excluded in the computation.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-060, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-070 Quorum. (1) Joint boards. For the purpose of adopting, amending or repealing these rules, at least two members of each board must concur.

(2) Individual board. For purposes of making orders or decisions or transacting other official business, two members of a board shall constitute a quorum and may act even though one position on the board is vacant. One member or designated hearing examiner may hold hearings and take testimony. The findings of such member or hearing examiner shall not become final until approved by a majority of the board in accordance with WAC 242-02-840. A board member who does not attend a hearing shall review a transcript or recording of the hearing before signing the decision. In instances of a tie vote, the procedures described in WAC 242-02-870 shall apply.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-070, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-074 Regular meetings. (1) Regular meetings of each board will be held at its principal office or designated location at the following times:

(a) Eastern Washington board - ((every Tuesday)) on the first Wednesday of each month at ((10:30)) 10:00 a.m.

(b) Western Washington board - ((every)) on the second Wednesday of each month at ((10:30)) 11:00 a.m.

(c) Central Puget Sound board ((at 10:00 a.m.)) - on the second Thursday of each month at 10:00 a.m.

(2) The joint boards shall meet annually at a time and location to be announced.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-074, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-110 Appearance and practice before a board--Who may appear. Practice before a board in hearings shall be open to the following persons who have met the standing requirements of chapter 36.70A RCW:

(1) A party to a case before the board may participate personally or, if the party is a corporation, organization, informal association, or other artificial person, by a duly authorized representative;

(2) Whether or not participating individually, any person may be advised and represented at one's own expense by an attorney or((, if permitted by provision of law,)) other representative;

(3) Attorneys at law practicing before the board must be duly qualified and entitled to practice in the courts of the state of Washington; and

(4) Other persons permitted by law.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-110, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-110, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-130 Ex parte communication. No one in a proceeding before a board shall make or attempt to make any improper ex parte communications with board members, hearing examiners, or presiding officers prohibited by the Administrative Procedure Act, RCW 34.05.455. An ex parte communication is direct or indirect contact with board members or staff by only one party without notice and opportunity for all other parties to participate. To avoid the occurrence of any improper ex parte communications, written communication with the opposing parties copied or a telephone conference call to the board with all parties on-line are strongly suggested. Questions on purely procedural matters such as scheduling and logistics are permitted on an ex parte basis. Attempts by anyone to make ((such)) prohibited ex parte communications shall subject such person to the sanctions of WAC 242-02-120 and 242-02-720.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-130, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-210 Petition for review--Forms--Contents. A petition for review shall substantially contain:

(1) A caption in the following form:

before the . . . . growth management hearings board

state of washington

Petitioner,

Case No.

v.

petition for review

Respondent.

(2) Numbered paragraphs stating:

(a) Petitioner's name, mailing address and telephone number and those of the attorney or other authorized representative, if any;

(b) Date of the challenged order, determination, publication, or other action or, in the case of an alleged failure to act ((from which the appeal is)), the date by which the action was required to be taken;

(c) A detailed statement of the issues presented for resolution by the board that specifies the provision of the act or other statute allegedly being violated and, if applicable, the provision of the document that is being appealed;

(d) A statement ((indicating)) specifying the type and the basis of the petitioner's standing before the board pursuant to RCW 36.70A.280(2). Petitioners shall distinguish between participant standing under the act, governor certified standing, standing pursuant to the Administrative Procedure Act, and standing pursuant to the State Environmental Policy Act, as the case may be;

(e) The estimated length of the hearing;

(f) The relief sought, including the specific nature and extent;

(g) A statement that the petitioner has read the petition for review and believes the contents to be true, followed by the petitioner's signature or signature of the attorney(s) or other authorized representative(s), if any.

(3) One copy of the applicable provisions of the document being appealed, if ((applicable, may)) any, shall be attached to the petition for review.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-210, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-210, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-210, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-220 Petition for review--Time for filing. (1) A petition relating to whether or not an adopted comprehensive plan, development regulation, shoreline master program or subsequent amendments, is in compliance with the goals and requirements of the act or chapter 90.58 or 43.21C RCW shall be filed with a board within sixty days from the date of publication by the legislative body of the county or city as specified by RCW 36.70A.290(2).

(2) A petition relating to an adopted county-wide planning policy shall be filed within sixty days of its adoption as specified in RCW 36.70A.210(6).

(3) A petition alleging that the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted can be filed at any time.

(4) For all other matters, a petition must be filed with a board within sixty days of the final written decision, order, determination, publication, or action being entered.

(5) A petition relating to the failure of a state agency, city or county to take an action by a deadline specified in the act may be brought at any time after the deadline for action has passed.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-220, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-220, filed 3/9/94, effective 4/9/94; 93-11-068, 242-02-220, filed 5/17/93, effective 6/17/93; 92-21-034, 242-02-220, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-250 Notice of appearance((,)) and answer ((and petition for cross review)). (1) The respondent shall file a notice of appearance with the board and serve a copy on the petitioner and all other parties promptly after having been served with a petition for review. The notice of appearance shall be dated, signed and contain the respondent's address and telephone and FAX numbers.

(2) The respondent, at its option, may file an answer to the petition for review. The respondent shall file the original and three copies with the board and serve a copy on the petitioner. Answers shall be filed no later than twenty days from the date of service of the petition for review. Answers shall be verified in the same manner as the petition for review.

(((3) A respondent may file a petition for cross review. The respondent shall file the original and three copies with the board and serve a copy on all other parties within thirty days after the service of the petition for review or any amendment to the petition. The petition for cross review shall conform in all respects to the requirements for a petition for review.))

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-250, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-250, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-260 Amendments to petitions for review((,)) and answers ((and petitions for cross review)). (1) A petition for review((,)) or answer ((or petition for cross review)) may be amended as a matter of right until thirty days after its date of filing.

(2) Thereafter any amendments shall be requested in writing by motion, and will be made only after approval by a board or presiding officer. Amendments shall not be freely granted and may be denied upon a showing by the adverse party of unreasonable and unavoidable hardship, or ((unless)) by a board's finding that granting the same would adversely impact a board's ability to meet the time requirements of RCW 36.70A.300 for issuing a final order. The board may, upon motion of a party or upon its own motion, require a more complete statement of the nature of the claim or defense or any other matter stated in a pleading.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-260, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-270 Intervention. (1) Any person ((whose interest may be substantially affected by a proceeding before a board)) at any time may by motion request status as an intervenor in ((the)) a case.

(2) In determining whether a person qualifies as an intervenor, the presiding officer shall apply any applicable provisions of law and may consider the applicable superior court civil rules (CR) of this state. The granting of intervention must be in the interests of justice and shall not impair the orderly and prompt conduct of the proceedings.

(3) If the person qualifies for intervention, the presiding officer may impose conditions upon the intervenor's participation in proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:

(a) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest as demonstrated by the motion;

(b) Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

(c) Requiring two or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceedings.

(4) The presiding officer shall timely grant or deny each motion and specify conditions, if any.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-270, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-270, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-310 Service of papers. (1) Parties filing pleadings, ((documents)) briefs, exhibits and other documents or papers with a board shall also promptly serve copies upon all other parties.

(2) Service upon a party's attorney or other authorized representative shall be considered valid service for all purposes upon the party represented.

(3) Final decisions ((or orders)) of the board shall be served upon the parties ((or)) and their attorney or representative of record, if any.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-310, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-310, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-510 Notice of hearing--Setting of time and place. (1) Within ten days of the filing of a petition for review, a board or presiding officer will schedule a hearing date and notify the parties of the date.

(2) The board or presiding officer will thereafter schedule a place for the hearing.

(3) A written notice of the date and location of the hearing shall be sent to all parties not less than twenty days prior to the hearing date.

(4) The notice shall identify the appeal to be heard, the names of the parties to the appeal and their attorneys or other authorized representatives, if any, and shall specify the time and place of hearing. The notice shall include the information specified in RCW 34.05.434 and if the hearing is to be conducted by teleconference call the notice shall so state.

(5) The notice shall state that if a limited-English-speaking or hearing impaired party or witness needs an interpreter, a qualified interpreter will be appointed and that there will be no cost to the party or witness. The notice shall include a form for a party to indicate if an interpreter is needed and identification of the primary language, or if a participant is hearing impaired.

(6) The notice may also include an order fixing the prehearing date and/or deadlines as provided in these rules.

(7) Defects in notice may be waived if the waiver is knowing and voluntary.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-510, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-510, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-520 Record. (((1))) Within thirty days of service of a petition for review, the respondent shall file with the board and serve a copy on ((petitioner(s))) the parties of an index of all material used in taking the action which is the subject of the petition for review. The index shall contain sufficient identifying information to enable unique documents to be distinguished. In addition, the written or tape recorded record of the legislative proceedings where action was taken shall be available to the ((petitioner)) parties for inspection.

(((2) Unless otherwise directed by the board or presiding officer, within fifty days of the filing of the petition for review, each of the parties shall identify those documents listed in the index which the party intends to use as an exhibit. The documents identified in this stage shall be labeled "preliminary list of exhibits." The preliminary list of exhibits shall be filed with the board and a copy served on all parties. In complying with the requirements of this subsection, parties shall not simply designate every document but shall carefully review the index, and designate only those documents that are reasonably necessary for a full and fair determination of the issues presented.

(3) The board or the presiding officer shall establish a deadline for identifying and filing a final list of exhibits with the board and serving a copy on all other parties. A copy of any document listed on the final list of exhibits shall be served on the opposing party or parties by the time specified by the board or presiding officer. One copy of each document shall also be filed with the presiding officer to be used as an "original" exhibit. Prior to the beginning of a hearing, each of the parties shall also provide the board with three copies (four copies if a hearing examiner is the presiding officer) of each document being offered as an exhibit.

(4) Copies of designated documents from the index that have been certified or stipulated to be true and accurate may be admitted into evidence before a board in lieu of the original document.))

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-520, filed 10/15/92, effective 10/15/92.]

NEW SECTION

WAC 242-02-52001 Exhibit lists. (1) Unless otherwise directed by the board or presiding officer, within fifty days of the filing of the petition for review, each of the parties shall identify those documents listed in the index which the party intends to use as an exhibit. The documents identified in this stage shall be labeled "preliminary list of exhibits." The preliminary list of exhibits shall be filed with the board and a copy served on all parties. In complying with the requirements of this subsection, parties shall not simply designate every document but shall carefully review the index, and designate only those documents that are reasonably necessary for a full and fair determination of the issues presented.

(2) The board or the presiding officer may establish a deadline for identifying and filing a final list of exhibits with the board and serving a copy on all other parties. The board or presiding officer may elect not to require the filing of final exhibit lists and instead, require that a copy of any document cited in a brief shall be served on the opposing party or parties by the time specified by the board or presiding officer and an original and three copies of the exhibits be filed with the board.

(3) A presiding officer may order the use of a stipulated exhibit list in lieu of or in addition to preliminary and/or final exhibit lists.

(4) Copies of designated documents from the index that have been certified or stipulated to be true and accurate may be admitted into evidence before a board in lieu of the original document.

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NEW SECTION

WAC 242-02-52002 Documentary evidence. (1) All rulings upon objections to the admissibility of evidence shall be made in accordance with the provisions of the Administrative Procedure Act and WAC 242-02-650.

(2) Where applicable, the presiding officer may order:

(a) That all documentary evidence which is to be offered during the hearing be submitted to the board and to other parties sufficiently in advance to permit study and preparation of cross-examination and rebuttal evidence;

(b) That documentary evidence not submitted as required in (a) of this subsection not be received in evidence in the absence of a clear showing that the offering party had good cause for the failure to produce the evidence sooner, unless it is submitted for impeachment or rebuttal purposes;

(c) That all documents so presented and examined be deemed authentic unless written objection is filed within fourteen days after receipt. A party will be permitted to challenge such authenticity at a later time only upon a clear showing of good cause for failure to have filed such written objection.

(3) The presiding officer may limit the documentary evidence to that identified on a preliminary, stipulated and/or final list of exhibits and/or to those exhibits cited in a brief. A party may submit additional documentary evidence at the time of hearing only upon a showing of good cause.

(4) When only portions of a document are to be relied upon, the offering party shall adequately identify and prepare the pertinent excerpts and shall supply copies of such excerpts to the presiding officer and to the other parties. However, the whole of the original document shall be made available for examination and for use by all parties to the proceeding.

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AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-521 Designation of presiding officer. A board shall designate the presiding officer for each case at the time it issues its notice of hearing pursuant to WAC 242-02-510. In the event the presiding officer subsequently changes, the board shall promptly notify the parties.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-521, filed 11/22/94, effective 12/23/94.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-522 Presiding officer--Powers and duties. It shall be the duty of the presiding officer to conduct conferences or hearings as directed by a board in an impartial and orderly manner. The presiding officer shall have the authority, subject to the other provisions of the act or these rules to:

(1) Inspect the petition for review to determine whether, on its face, compliance with the jurisdictional and standing requirements of the act is shown, and if compliance is not shown, to recommend an action or to refer the issue to the full board for resolution;

(2) Take appropriate action with respect to the qualifications of the parties or the parties' attorney(s) or other authorized representative(s) to appear before a board;

(3) Administer oaths and affirmations if witnesses are permitted to testify;

(4) Issue subpoenas as provided in RCW 34.05.446;

(5) Rule on all procedural matters, objections and motions unless a board determination is required;

(6) Rule on all evidentiary matters including offers of proof;

(7) When applicable, question witnesses called by the parties in an impartial manner as needed to develop any facts deemed necessary to fairly and adequately decide the issue;

(8) Issue orders joining other parties, on motion of any party, when it appears that such other parties may have an interest in, or may be affected by the case;

(9) Consolidate cases for hearing when such consolidation will expedite disposition and avoid duplication of testimony and when consolidation will not unduly prejudice the rights of any party;

(10) Hold conferences for the settlement or amplification of the issues;

(11) Regulate the course of the case prior to ((and)), during and after the hearing;

(12) Encourage the parties to stipulate to the admissibility of documents in advance of a hearing and to rule on issues concerning the content of the record;

(13) Waive any requirement of these rules unless a party shows that it would be prejudiced by such a waiver; and

(14) Take any other action necessary and authorized by these rules ((or)), the act, or the Administrative Procedure Act, chapter 34.05 RCW.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-522, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-522, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-532 Motions--Time for filing and hearing. (1) A motion can be filed at any time unless otherwise specified in these rules or by a board or presiding officer.

(2) After prehearing or other order. If a prehearing order or other order has been entered establishing a deadline for filing motions, no written motion may be filed after the date specified in the order without written permission of the board or presiding officer.

(3) A board or presiding officer, after taking into consideration when the motion was received and the complexity of the issues raised, may, in its discretion, schedule a hearing for argument of a motion at the time of a prehearing conference or at a separate hearing time, or may defer consideration of the motion until commencement of the hearing on the petition for review. A board or presiding officer may also limit argument on a motion to briefs.

(4) A motion, other than a dispositive motion or a motion to supplement the record, is deemed denied unless the board takes action within twenty days of filing of the motion.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-532, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-533 Motion to disqualify for cause. (1) A motion to disqualify a hearing examiner acting as the presiding officer, or any board member, for ((bias, prejudice, interest or other cause)) any reason provided under chapter 34.05 RCW, with supporting affidavit(s), must be filed at least seven days before the board holds a prehearing conference, or if facts establishing grounds for disqualification are subsequently discovered, promptly after discovery of such facts.

(2) The board shall promptly rule upon such a motion.

(3) If a motion for disqualification is granted and a presiding officer was disqualified as a result, the remaining board members shall promptly designate a new presiding officer.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-533, filed 11/22/94, effective 12/23/94.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-550 Prehearing conference. A prehearing conference is optional at the discretion of the presiding officer. The purpose of a prehearing conference is to:

(1) Determine the feasibility of and encourage settlement of the matter or any portion thereof;

(2) Obtain a stipulation of relevant facts including a board's jurisdiction and the party's standing in the matter;

(3) Obtain agreement as to the issues of law and fact presented and their simplification, limitation, or resolution;

(4) ((Determine the authenticity and admissibility of exhibits;

(5))) Determine the qualifications of expert witnesses, if they are permitted to testify;

(((6))) (5) Receive any motions concerning qualification of individual board members to hear the matter;

(((7))) (6) Obtain information as to the number of expert and/or lay witnesses expected to be called by the parties and their names, addresses and telephone numbers((, if the board has previously authorized supplemental or additional evidence to be presented at the hearing));

(((8))) (7) Set subsequent deadlines, if and when appropriate, for filing final exhibit and witness lists, filing motions, and completing discovery; establish a briefing schedule, limit the length of briefs; and decide other matters related to the conduct of the hearing;

(((9))) (8) Determine the approximate time necessary for the presentation of evidence and/or argument of the respective parties; and

(((10))) (9) Obtain all other information which may aid in the prompt disposition of the matter.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-550, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-550, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-560 Hearing--Continuances. Because of the provisions of RCW 36.70A.300, continuances and extensions of time will be granted only on a board's initiative or upon timely request of a party setting forth in detail the reasons for such a request and a date by which such reason will no longer apply. ((In the latter instance,)) The board will continue or extend the matter only upon a finding of good cause and in order to prevent manifest injustice. Unless specifically authorized by law, neither a board nor the parties before it may extend the one hundred eighty-day limit specified in RCW 36.70A.300 for issuing a final decision and order.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-560, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-570 Briefs. (1) A petitioner, or a moving party when a motion has been filed, shall submit a brief on each legal issue it expects a board to determine. Failure by such a party to brief an issue shall constitute abandonment of the unbriefed issue. Briefs shall enumerate and set forth the legal issue(s) as specified in the prehearing order if one has been entered.

(2) The original and three copies of briefs and exhibits not previously filed with the board in the pending case and that are cited in the brief shall be filed with a board at least five business days prior to the hearing unless otherwise provided by a board or presiding officer. When briefs and exhibits are filed, a copy shall also be served on ((all other parties)) each party, unless otherwise directed by a board or presiding officer. A board or presiding officer may permit or require the filing of additional briefs.

(3) Clarity and brevity are expected to assist a board in meeting its statutorily imposed time limits. A presiding officer may limit the length of a brief and impose format restrictions.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-570, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-570, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-650 Rules of evidence--Admissibility criteria. (1) All relevant evidence, including hearsay evidence, is admissible if, in the opinion of the presiding officer, the offered evidence is the kind of evidence upon which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state. The presiding officer shall exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(2) A board's experience, technical knowledge, competency, and specialized knowledge may be used in evaluation of evidence.

(3) If not inconsistent with subsection (1) of this section, the presiding officer ((may)) shall refer to, but shall not be bound by, the Washington rules of evidence.

(4) Documentary evidence may be submitted in the form of copies or excerpts, or by incorporation by reference.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-650, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-660 Official notice--Matters of law. A board or presiding officer may officially notice:

(1) Federal law. The Constitution; congressional acts, resolutions, records, journals, and committee reports; decisions of federal courts and administrative agencies; executive orders and proclamations; and all rules, orders, and notices published in the Federal Register.

(2) Washington state law. The Constitution of the state of Washington; decisions of the state courts; acts, resolutions, records, journals, and committee reports of the legislature((, resolutions, records, journals, and committee reports)); decisions of administrative agencies of the state of Washington; executive orders and proclamations by the governor; ((and)) all rules, orders, and notices filed with the code reviser; and codes or standards that have been adopted by an agency of this state or by a nationally recognized organization or association.

(3) Laws of other states. The constitutions of other states; decisions of state courts; acts, resolutions, records, journals and committee reports of other state legislatures; decisions of other states administrative agencies; executive orders and proclamations issued by a governor of another state; and codes or standards that have been adopted by an agency of another state.

(4) Counties and cities. Ordinances ((and)), resolutions, and motions enacted by cities, counties, or other municipal subdivisions of the state of Washington.

(((4) Governmental organization. Organization, territorial limitations, officers, departments and general administration of the government of the state of Washington, the United States, the several states, federally recognized Indian tribes, and foreign nations.))

(5) Federally recognized Indian tribes, Constitutions, ordinances, resolutions and motions enacted by federally recognized Indian tribes.

(6) Growth management hearings boards. Orders and decisions of any board.

(((6))) (7) Joint boards. Rules of practice and procedure.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-660, filed 11/22/94, effective 12/23/94; 92-21-034, 242-02-660, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-670 Official notice--Material facts. In the absence of conflicting evidence, a board or presiding officer, upon request made before or during a hearing, may officially notice:

(1) Business customs. General customs and practices followed in the transaction of business.

(2) Notorious facts. Facts so generally and widely known to all well-informed persons as not to be subject to reasonable dispute or specific facts which are capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including, but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer, department, or agency.

(3) Technical or scientific facts. Technical or scientific facts within a board's specialized knowledge.

(4) Request. Any party may request, orally or in writing, that official notice be taken of a material fact. The board or presiding officer may take official notice of a material fact on its own initiative. If official notice of a material fact is taken, it shall be clearly and precisely stated and made part of the record.

(((4))) (5) Statement. Where a decision of a board rests in whole or in part upon official notice of a material fact, such fact shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the presiding officer may consult any source of pertinent information, whether or not furnished by any party and whether or not admissible under the rules of evidence.

(((5))) (6) Objection to taking of official notice. Any party may object to a request that official notice of a material fact be taken, when the request is made.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-670, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-710 Failure to attend--Default or dismissal--Setting aside. (1) When a party to a proceeding has, after proper notice, failed to attend a hearing or any other matter before a board or presiding officer, a motion for default or dismissal may be sought by any party to the case or raised by a board ((or presiding officer)) upon its own motion or by a presiding officer. Any order granting the motion shall include a statement of the grounds for the order and shall be served upon all parties to the case.

(2) Within seven days after service of the default order or dismissal under subsection (1) of this section, the party against whom the order was entered may file a written objection requesting that the order be vacated and stating the specific grounds relied upon. The board may, for good cause, set aside an order of dismissal or default.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-710, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-830 Disposition of petition for review--Final decision and order. (((1))) When the hearing on the petition for review has been ((heard)) held and the record reviewed by a majority of a board, a written final decision and order containing appropriate findings and conclusions, ((that is concurred in by at least two members, may)) shall be issued.

(((2) After issuance of a final decision under this section, any party may file a petition for reconsideration with a board. Such petition must be filed within ten days of service of the final decision. The original and three copies of the petition for reconsideration shall be filed with the board. At the same time, copies shall be served on all parties of record. A board may require other parties to supply an answer which shall be served in a like manner.

(3) The filing of a petition for reconsideration shall suspend the final decision of a board until the petition is denied or a modified decision is entered by the board.

(4) In response to a petition for reconsideration, the board may deny the petition, modify its decision, or reopen the hearing. A petition is deemed denied unless the board takes action within twenty days of filing of the petition or answer where a board has required other parties to provide such an answer pursuant to subsection (2) of this section.

(5) A decision in response to the petition for reconsideration shall constitute a final decision and order for purposes of judicial review. Copies of the final decision and order shall be served by the board on each party or the party's attorney or other authorized representative of record.))

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-830, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-830, filed 10/15/92, effective 10/15/92.]

NEW SECTION

WAC 242-02-832 Reconsideration. (1) After issuance of a final decision under this section, any party may file a petition for reconsideration with a board in accordance with subsection (2) of this section. Such petition must be filed within ten days of service of the final decision. The original and three copies of the petition for reconsideration shall be filed with the board. At the same time, copies shall be served on all parties of record. A board may require other parties to supply an answer which shall be served in a like manner.

(2) A petition for reconsideration shall be based on any of the following grounds:

(a) Errors of procedure or misinterpretation of fact or law, material to the party seeking reconsideration;

(b) Irregularity in the hearing before the board by which such party was prevented from having a fair hearing;

(c) Clerical mistakes in the final decision and order.

(3) In response to a petition for reconsideration, the board may deny the petition, modify its decision, or reopen the hearing. A petition is deemed denied unless the board takes action within twenty days of filing of the petition or answer where a board has required other parties to provide such an answer pursuant to subsection (1) of this section.

(4) A decision in response to the petition for reconsideration shall constitute a final decision and order for purposes of judicial review. Copies of the final decision and order shall be served by the board on each party or the party's attorney or other authorized representative of record.

[]

NEW SECTION

WAC 242-02-834 Publication of final decision and orders. Copies of all final decisions and orders are available from the board that entered the decision and order. Code Publishing Company, POB 51164, Seattle, WA 98115-1164 is the official publisher of all final decisions and orders entered by the boards. In addition, final decisions and orders are available from CD Law, 1000 2nd Ave., Ste. # 1610, Seattle, WA 98104 and Law BBS, Washington St. Bar Association, 2001 Sixth Ave., Ste. 500, Seattle, WA 98121-2599.

[]

AMENDATORY SECTION (Amending WSR 94-07-033, filed 3/9/94, effective 4/9/94)

WAC 242-02-880 Disposition of petition for review--Transcripts. The following shall be the policy of each board with regard to transcription of the record:

(1) A board, in its discretion, may at any time cause a transcript to be printed. Any person may obtain a copy upon payment of the reasonable costs thereof.

(2) In any case when a board shall not cause the transcript to be printed, it shall be the obligation of the party wishing a transcript, or portions of it, to assume the cost of producing ((the same)) it.

(3) When an appeal is taken from any final decision and order of a board to ((the Superior Court of Thurston County)) a reviewing court, the appealing party is responsible for ordering and paying for the transcript of the hearing.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-880, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-880, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-892 Appeals of a board's final decision ((and order)). (1) Any party aggrieved by a final decision of a board may appeal the decision to ((Thurston County)) superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of ((issuance)) service of the final ((order)) decision of the board.

(2) A board shall follow the procedures established in RCW 34.05.518 in the event that direct appellate review is sought.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-892, filed 10/15/92, effective 10/15/92.]

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 242-02-554 Prehearing conference--Documentary evidence.

WAC 242-02-820 Disposition of petition for review.

WAC 242-02-840 Disposition of petition for review--Initial decision and order.

WAC 242-02-850 Disposition of initial decision--Exceptions.

WAC 242-02-860 Disposition of petition for review--Finality of initial decision and order.

WAC 242-02-870 Disposition of petition for review--Final decision and order--Exceptions filed.

AMENDATORY SECTION (Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-04-050 Communications with each board or the joint boards. (1) All communications with a board, including but not limited to the submission of materials pertaining to its operations and/or administration or enforcement of chapter 42.17 RCW and these rules, requests for copies of each board's decisions and other matters, shall be addressed to the appropriate board's office as follows:

(a) Eastern Washington Growth

Management Hearings Board

Suite 818 Larson Building

6 South 2nd Street

Yakima, Washington 98901

(509) 454-7803

(509) 454-7292 FAX

(b) Western Washington Growth

Management Hearings Board

111 West 21st Avenue, Suite 1

P.O. Box 40953

Olympia, Washington 98504-0953

(360) 664-8966

(360) 664-8975 FAX

(c) Central Puget Sound Growth

Management Hearings Board

2329 One Union Square

600 University Street

Seattle, Washington 98101-1129

(206) 389-2625

(206) 389-2588 FAX

(2) All communications with the joint boards, except a petition for rule making pursuant to WAC 242-02-052, shall be addressed in care of the ((Western)) Eastern Washington board.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-04-050, filed 11/22/94, effective 12/23/94; 94-07-033, 242-04-050, filed 3/9/94, effective 4/9/94; 92-21-034, 242-04-050, filed 10/15/92, effective 10/15/92.]

Legislature Code Reviser

Register

Washington State Code Reviser's Office