WSR 98-01-144

PERMANENT RULES

GROWTH MANAGEMENT

HEARINGS BOARDS

[Filed December 19, 1997, 11:41 a.m., effective January 20, 1998]

Date of Adoption: December 16, 1997.

Purpose: To update the boards' rules of practice and procedure in order to reflect recent legislative changes and other technical and clarifying amendments.

Citation of Existing Rules Affected by this Order: Amending chapters 242-02 and 242-04 WAC.

1. The following sections of chapters 242-02 and 242-04 WAC are proposed for amendments to reflect necessary housekeeping changes. Typical changes include: Change of address, change of lead for joint board contacts, technical and editorial changes. (Eleven sections affected.)

WAC 242-02-040.

WAC 242-02-052.

WAC 242-02-072.

WAC 242-02-110.

WAC 242-02-540.

WAC 242-02-640.

WAC 242-02-832.

WAC 242-02-880.

WAC 242-04-030.

WAC 242-04-050.

WAC 242-04-100.

2. The following sections of chapter 242-02 WAC are proposed for amendments to clarify that board procedures are consistent with or reference the Administrative Procedure Act (chapter 34.05 RCW). (Four sections affected.)

WAC 242-02-130 Ex parte communication.

WAC 242-02-420 Subpoena--Issuance.

WAC 242-02-533 Motion to disqualify for cause.

WAC 242-02-670 Official notice--Material facts.

3. The following sections of chapter 242-02 WAC are proposed for amendments to reflect changes necessitated by the legislature during the 1997 session. (Ten sections affected: Nine due to ESB 6094, one due to SHB 1314.)

WAC 242-02-020 Function--Local deference.

WAC 242-02-050 Rules.

WAC 242-02-510 Notice of hearing--Setting of time and place.

WAC 242-02-522 Presiding officer--Powers and duties.

WAC 242-02-560 Settlement extensions--Continuances.

WAC 242-02-632 Burden of proof.

WAC 242-02-634 Standard of proof.

WAC 242-02-830 Final decision and order--Basis.

WAC 242-02-890 Determination of noncompliance--Compliance schedule.

WAC 242-02-060 Computation of time. (SHB 1314.)

4. To implement the provisions of ESB 6094, chapter 429, Laws of 1997, the following sections are proposed as new sections to chapter 242-02 WAC. (Ten new sections.)

WAC 242-02-290 Direct review by superior court--Procedures.

WAC 242-02-292 Direct review by superior court--Agreement of the parties.

WAC 242-02-295 Board filing with superior court--Certificate of agreement.

WAC 242-02-831 Final decision and order--Compliance, noncompliance, invalidity.

WAC 242-02-833 Invalidity--Hearing pursuant to motion to clarify, modify or rescind.

WAC 242-02-891 Compliance--Notice of hearing.

WAC 242-02-893 Compliance--Hearing.

WAC 242-02-894 Compliance--Hearing pursuant to motion--Rescinding invalidity.

WAC 242-02-896 Continued noncompliance--Recommendation to the governor.

WAC 242-02-898 Appeal of a board's final decision.

5. The following sections of chapter 242-02 WAC are proposed for repeal. (Six sections affected.)

WAC 242-02-430.

WAC 242-02-440.

WAC 242-02-450.

WAC 242-02-460.

WAC 242-02-470.

WAC 242-02-892.

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

Adopted under notice filed as WSR 97-22-070 on November 4, 1997.

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 10, amended 10, 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 0, amended 15, repealed 6.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 15, 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: January 20, 1998.

December 16, 1997

Edward G. McGuire

Board Member

Rules Coordinator

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

WAC 242-04-030 Description of organization and public meetings. (1) Each board is an independent agency of the state of Washington, composed of three members appointed by the governor. Each board elects an administrative chairperson from its members at least annually.

(2) The administrative chairpersons constitute the administrative committee of the joint boards. The administrative committee elects an administrative chairperson from its members at least annually.

(3) Regular meetings of each board will be held at its principal office or other designated location at the following times:

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

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

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

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-04-030, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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))

905 24th Way S.W. Suite B-2

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))

Central Puget Sound Growth

Management Hearings Board

Financial Center

1215 Fourth Avenue, Suite 322

Seattle, Washington 98161-1001

(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 Eastern Washington board.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-04-050, filed 1/24/97, effective 3/1/97. 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.]

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

WAC 242-04-100 Copying. No fee shall be charged for the inspection of public records. Each board shall charge a reasonable fee for providing copies of public records and for use of each board's photocopy equipment. Each board may charge a reasonable fee for electronic facsimile transmissions (FAX). The charge is the amount necessary to reimburse each board for its actual costs incident to such copying or transmission.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-04-100, filed 10/15/92, effective 10/15/92.]

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

WAC 242-02-020 Function--Local deference. (1) The function of a board is to make informed decisions on appeals arising from implementation of the Growth Management Act in a clear, consistent, timely, and impartial manner that recognizes regional diversity.

(2) The legislature requires growth management planning to occur in compliance with the goals and requirements of the act. The responsibility for managing local growth and shaping a county's or city's future rests with the local community. The boards will grant deference to counties and cities in how they plan for and manage growth.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-020, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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

(1) "Act" means chapter 36.70A RCW, and subsequent amendments.

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

(3) "Final decision" means:

(a) Any final order as provided in RCW 36.70A.300; or

(b) Any other written finding, determination or order of the board which finally determines a legal right, duty, or other legal interest of the parties in the case and which clearly states such written finding, determination or order that it is a final decision subject to appeal to superior court.

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

(((5))) (6) "Participant" means any person with standing to challenge a legislative action as set forth in RCW 36.70A.330(2).

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

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

(((7))) (9) "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))) (10) "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))) (11) "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))) (12) "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(7). 97-04-008, 242-02-040, filed 1/24/97, effective 3/1/97. 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 242-02-050 Rules. These rules shall govern the joint boards' adoption or amendment of joint rules, and all practice and procedure for hearings before a board. Where a time frame is different in these rules from those in chapter 10-08 WAC, it is because a board is required ((by the act to issue a final order within one hundred eighty days of filing a petition for review)) to act pursuant to the time frames set forth in the act.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-050, filed 10/15/92, effective 10/15/92.]

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

WAC 242-02-052 Petition for rule making. (1) Right to petition for rule making. Any person may petition the joint boards for the adoption, amendment, or repeal of any rule. Said petition shall be filed with the ((Central Puget Sound)) Eastern board's office in ((Seattle)) Yakima, Washington.

(2) Form of petition. The form of the petition for adoption, amendment, or repeal of any rule shall generally adhere to the following:

(a) A caption in the following form:

before the joint growth management hearings boards

state of washington

No.

In the matter of

the Petition of petition for rule making

(Name of Petitioner)

for Rule Making

(b) The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the name and address of the petitioning party and whether the petitioner seeks the adoption of a new rule or rules, or amendment or repeal of an existing rule or rules. The second paragraph, in case of a proposed new rule or amendment of an existing rule, shall set forth the desired rule in its entirety. Where the petition is for repeal of an existing rule, such shall be stated and the rule proposed to be repealed shall either be set forth in full or shall be referred to by board rule number. The third paragraph shall set forth concisely the reasons for the proposal of the petitioner and shall contain a statement as to the interests of the petitioner and the subject matter of the rule. Additional numbered paragraphs may be used to give full explanation of petitioner's reason for the action sought.

(c) The petition shall be dated and signed by the party named in the first paragraph or by the petitioner's attorney or other authorized representative. The original and nine copies shall be filed with the ((Central Puget Sound)) Eastern board at its office in ((Seattle)) Yakima, Washington.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-052, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-052, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-052, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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, Sunday or a legal holiday, pursuant to RCW 1.16.050, and then it is excluded and the next succeeding day which is neither a Saturday, 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(7). 97-04-008, 242-02-060, filed 1/24/97, effective 3/1/97. 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 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-072 Principal offices. The principal offices of each board are as follows:

(1) Eastern Washington Growth

Management Hearings Board

Suite 818 Larson Building

6 South 2nd Street

Yakima, Washington 98901

(509) 454-7803

(509) 454-7292 FAX

(2) Western Washington Growth

Management Hearings Board

((111 West 21st Avenue, Suite 1))

905 24th Way S.W. Suite B-2

P.O. Box 40953

Olympia, Washington 98504-0953

(360) 664-8966

(360) 664-8975 FAX

(3) ((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))

Central Puget Sound Growth

Management Hearings Board

Financial Center

1215 Fourth Avenue, Suite 322

Seattle, Washington 98161-1001

(206) 389-2625

(206) 389-2588 FAX

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-072, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-072, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-072, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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 or participant to a case before the board may ((participate)) appear 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 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))) (3) Other persons permitted by law.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-110, filed 1/24/97, effective 3/1/97. 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 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-130 Ex parte communication. No one in a board proceeding ((before a board)) shall make or attempt to make any improper ex parte communications with board members, hearing examiners, or presiding officers, regarding any issue in the proceeding that is 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)) Communications on purely procedural matters such as scheduling and logistics are permitted on an ex parte basis. Attempts by anyone to make prohibited ex parte communications shall subject such person to the ((sanctions)) provisions of WAC 242-02-120 and 242-02-720.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-130, filed 1/24/97, effective 3/1/97. Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-130, filed 10/15/92, effective 10/15/92.]

NEW SECTION

WAC 242-02-290 Direct review by superior court--Procedures. RCW 36.70A.295 provides for direct review by superior court of a petition for review filed with a board if:

(1) All parties to the board proceeding agree to direct review by superior court;

(2) The parties file a direct review agreement, signed by all parties, or their designated representatives, with the appropriate board;

(3) The direct review agreement includes agreement to proper venue; and

(4) The direct review agreement is filed with the appropriate board within ten days after the petition for review is filed, or if multiple petitions have been filed and the board has consolidated the petitions, within ten days after the board serves notice of consolidation.

[]

NEW SECTION

WAC 242-02-292 Direct review by superior court--Agreement of the parties. (1) A direct review agreement of the parties shall contain:

(a) A caption in the following form:

BEFORE THE . . . GROWTH MANAGEMENT HEARINGS BOARD

State of Washington

Petitioner, Case No.

v.

Respondent Agreement for Direct Review

by . . . County Superior Court

(b) Numbered paragraphs stating:

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

(ii) Respondent's name, mailing address and telephone number and those of the attorney or other designated representative, if any;

(iii) Intervenor's name, mailing address and telephone number and those of the attorney or other designated representative, if any;

(iv) A statement indicating agreement to seek direct review by superior court of the petition for review filed with the board, citing case name and number as assigned by the board. The statement shall include agreement to proper venue, and may include other terms;

(v) Date the petition for review was filed, or if multiple petitions were filed and consolidated, the date the board served notice of consolidation;

(vi) A statement that all parties have read the agreement for direct review by superior court, and agree to its terms, followed by the signatures of all the parties or the signatures of the attorneys or other designated representatives, if any.

(2) One copy of the filed petition for review, with the case name, number and date stamp shall be filed with the agreement for direct review by superior court.

[]

NEW SECTION

WAC 242-02-295 Board filing with superior court--Certificate of agreement. (1) Within ten days of receiving a timely, complete and signed agreement for direct review by superior court, the board shall file a certificate of agreement, signed by the presiding officer or the board, with the designated superior court and serve the parties with copies of the certificate of agreement.

(2) The following documents shall be filed with the certificate of agreement:

(a) The executed agreement for direct review by superior court;

(b) The petition for review;

(c) Any orders entered by the board;

(d) Any other documents filed with the board regarding the petition for review.

[]

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

WAC 242-02-420 Subpoena--Issuance. (1) Subpoenas shall be issued and enforced, and witness fees paid, as provided in RCW 34.05.446 and court rules.

(2) Every subpoena shall identify the party causing its issuance. Subpoenas may be issued by a board or by an attorney of record. The person issuing shall sign the subpoena. Parties desiring subpoenas to be signed by a board shall make a showing of relevance and reasonable scope of the testimony or evidence sought and shall prepare the subpoenas for issuance, send them to the board's office for signature, and, upon return, shall make arrangements for service.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-420, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-510 Notice of hearing--Setting of time and place. (1) Within ten days of the filing of a petition for review, unless a petition for review has been removed to superior court, pursuant to WAC 242-02-290 through 242-02-295, 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(7). 97-04-008, 242-02-510, filed 1/24/97, effective 3/1/97. 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 97-04-008, filed 1/24/97, effective 3/1/97)

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, 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) Limit the length of a brief or impose format restrictions;

(14) Sign and file certificates of agreement acknowledging receipt of timely, complete, executed agreements for direct review by superior court;

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

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

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-522, filed 1/24/97, effective 3/1/97. 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 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-533 Motion to disqualify for cause. (1) A motion to disqualify a board member or hearing examiner acting as the presiding officer, ((or any board member,)) for 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(7). 97-04-008, 242-02-533, filed 1/24/97, effective 3/1/97. 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 242-02-540 New or supplemental evidence. Generally, a board will review only the record developed by the city, county, or state in taking the action that is the subject of review by the board. A party by motion may request that a board allow such additional evidence as would be necessary or of substantial assistance to the board in reaching its decision, and shall state its reasons. A board may order, at any time ((prior to, during, or after the hearing order)), that new or supplemental evidence be provided.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, 242-02-540, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-540, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-560 ((Hearing)) Settlement extensions--Continuances. ((Because of the provisions of RCW 36.70A.300,)) (1) If additional time is necessary to achieve settlement of a dispute that is an issue in a petition before a board, a board may extend the one hundred eighty-day time limit for issuing a final decision and order, as provided in RCW 36.70A.300 (2)(b). A board may authorize one, or more, extensions of up to ninety days each.

(2) A request for a settlement extension must be filed with a board not later than seven days before the date scheduled for the hearing on the merits of the petition.

(3) A board may grant a request for a settlement extension if:

(a) The request was timely filed; and

(b)(i) All parties named in the caption of the petition, agree to and sign the request; or

(ii) A petitioner and respondent agree to and sign the request and the board determines that a negotiated settlement between the remaining parties could resolve significant issues in dispute.

(4) Continuances ((and extensions of time)) of hearings 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. 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(7). 97-04-008, 242-02-560, filed 1/24/97, effective 3/1/97. 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 92-21-034, filed 10/15/92, effective 10/15/92)

WAC 242-02-632 Burden of proof. (1) Except as provided in subsection (2) of this section, the burden of proof shall be on the petitioner to show that respondent's action or failure to act is not in compliance with the requirements of the act.

(2) A county or city subject to a determination of invalidity made under RCW 36.70A.302 has the burden of demonstrating that the legislation it has enacted in response to the determination of invalidity will no longer substantially interfere with the fulfillment of the goals of the act.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-632, filed 10/15/92, effective 10/15/92.]

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

WAC 242-02-634 Standard of proof. Where a petition for review alleges a lack of compliance with the Growth Management Act, a board shall find compliance unless it ((finds by a preponderance of the evidence that the respondent erroneously interpreted or applied the act)) determines that the action by the state agency, county or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of the act.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-634, filed 10/15/92, effective 10/15/92.]

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

WAC 242-02-640 Hearing--Procedures at hearing. (1) Presiding officer. All hearings shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and rule on all procedural matters, objections, and motions.

(2) Order of presentation ((of evidence)). The presiding officer shall determine the proper order of presentation ((of evidence)).

(3) Opening statements. Unless the presiding officer rules otherwise, parties may present oral opening statements setting out briefly a statement of the basic facts and issues of the case.

(4) Objections. Objection to the admission or exclusion of evidence shall state briefly the legal ground of objection.

(5) Rulings. The presiding officer, on objection or on his/her own motion, shall exclude all irrelevant or unduly repetitious evidence. All rulings upon objections to the admissibility of evidence shall be made in accordance with WAC 242-02-650.

(6) Time. The presiding officer, after consultation with the parties, shall determine the time allotted for presentation.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-640, filed 10/15/92, effective 10/15/92.]

AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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.))

(5) Notice. Parties shall be notified either before or during a hearing of the material fact(s) proposed to be officially noticed, and shall be afforded the opportunity to contest such facts and materials.

(6) Statement.

(a) 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.

(b) If official notice of a material fact is taken, it shall be clearly and precisely stated and made part of the record.

(c) 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.

(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(7). 97-04-008, 242-02-670, filed 1/24/97, effective 3/1/97. 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 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-830 ((Disposition of petition for review--))Final decision and order--Basis. (1) When the hearing on the petition for review has been held and the record reviewed by a majority of a board, a written final decision and order ((containing)) shall be issued that contains appropriate findings and conclusions, ((shall be issued)) and articulates the basis for the final decision and order.

(2) The board will not issue advisory opinions on issues not presented to the board in the petition for review's statement of the issues, as modified by any prehearing order.

(3) Except as provided in RCW 36.70A.300 (2)(b) and WAC 242-02-560, the final decision and order shall be issued by a board within one hundred eighty days of receipt of the petition for review, or if multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-830, filed 1/24/97, effective 3/1/97. 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 242-02-831 Final decision and order--Compliance, noncompliance, invalidity. (1) In its final decision and order, a board shall either:

(a) Find that the state agency, county or city is in compliance with the requirements of chapter 36.70A RCW, 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 adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW; or

(b) Find that the state agency, county or city is not in compliance with the requirements of chapter 36.70A RCW, 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 adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, in which case the board shall remand the matter to the state agency, county or city and specify a time for compliance.

(2) In its final decision and order, a board may determine that part or all of a comprehensive plan or development regulations are invalid if the board:

(a) Makes a finding of noncompliance and issues an order of remand;

(b) Includes in its final decision and order a determination, supported by findings of fact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment of the goals of the act; and

(c) Specifies the part or parts, if applicable, of the plan or regulation that are determined to be invalid and the reasons for invalidity.

(3) The effect of a determination of invalidity is as set forth in RCW 36.70A.302.

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AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-832 Reconsideration. (1) After issuance of a final decision ((under this section,)) any party may file a ((petition)) motion for reconsideration with a board in accordance with subsection (2) of this section. Such ((petition)) motion must be filed within ten days of service of the final decision. The original and three copies of the ((petition)) motion 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)) motion for reconsideration shall be based on ((any)) at least one 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; or

(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.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-832, filed 1/24/97, effective 3/1/97.]

NEW SECTION

WAC 242-02-833 Invalidity--Hearing pursuant to motion to clarify, modify or rescind. If a motion to clarify, modify or rescind a determination of invalidity order has been filed by a county or city subject to a determination of invalidity, pursuant to RCW 36.70A.302, and the jurisdiction has not enacted legislation in response to the board's remand order, a board shall schedule and conduct a hearing to address clarifying, modifying or rescinding the determination of invalidity. Within thirty days of the hearing the board shall continue, clarify, modify, or rescind the determination of invalidity. The board may rescind a determination of invalidity but find continuing noncompliance, in which case the board may establish a compliance schedule or new compliance date.

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AMENDATORY SECTION (Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

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 it.

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

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-880, filed 1/24/97, effective 3/1/97. 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 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-890 ((Postdecision hearing--))Determination of ((compliance or)) noncompliance ((with final order))--Compliance schedule. (((1))) In those cases where a board finds that a state agency, county, or city is not in compliance with the requirements of the act, 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 adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, the board shall remand the matter to the affected state agency, county, or city((, specifying)). The board's final decision and order shall specify a reasonable time not in excess of one hundred eighty days, or such longer time as determined by the board in cases of unusual scope or complexity, within which the state agency, county, or city shall comply. In its order the board may establish a compliance schedule and may require periodic reports on the progress the jurisdiction is making toward compliance.

(((2) After the compliance deadline specified in subsection (1) of this section, a board, by issuing a notice, or on the motion of a party, shall schedule a hearing for the purpose of determining compliance. The time and place of the compliance hearing shall be at the discretion of a board but shall be given the highest priority of business.

(3) Once a motion for a compliance hearing has been filed, a board shall schedule and conduct the hearing and issue a finding of compliance or noncompliance within forty-five days of the filing of the motion under subsection (2) of this section.

(4) If the board finds that the respondent is not in compliance, the board shall transmit its finding to the governor. A board may recommend to the governor that sanctions authorized by the act be imposed.))

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-890, filed 11/22/94, effective 12/23/94; 92-21-034, 242-02-890, filed 10/15/92, effective 10/15/92.]

NEW SECTION

WAC 242-02-891 Compliance--Notice of hearing. (1) After the compliance deadline specified in the final decision and order passes, or at an earlier time upon the motion of a county or city subject to a determination of invalidity under RCW 36.70A.302, a board shall issue a notice of compliance hearing setting a hearing date for the purpose of determining whether compliance has been achieved. The compliance hearing shall be given the highest priority of business.

(2) The presiding officer shall set the format of the compliance hearing in the notice of compliance hearing. At the compliance hearing the presumption of validity and burden of proof are as set forth in WAC 242-02-630 and 242-02-632. The parties to the original case, and a person with standing to challenge the legislation enacted in response to a board's final decision and order, may participate in the compliance hearing. The notice of compliance hearing shall set the scope of, and procedures for participation.

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NEW SECTION

WAC 242-02-893 Compliance--Hearing. Upon a motion of a party or participant, the board shall reconsider its final decision and order and decide, if no determination of invalidity had previously been made, whether one should now be made. The procedures at the compliance hearing shall be as set forth by the presiding officer, pursuant to WAC 242-02-891. After a compliance hearing, the board shall determine whether a state agency, county or city is in compliance with the requirements of the act as remanded in the final decision or order and any compliance schedule established by the board.

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NEW SECTION

WAC 242-02-894 Compliance--Hearing pursuant to motion--Rescinding invalidity. If a motion for a compliance hearing has been filed by a county or city subject to a determination of invalidity, pursuant to RCW 36.70A.330(1), and the jurisdiction has enacted legislation amending the invalidated plan, regulation or part thereof, a board shall schedule and conduct a hearing to address rescinding the determination of invalidity. Within forty-five days of the filing of the motion the board shall issue an order continuing, modifying, or rescinding the determination of invalidity depending upon whether the jurisdiction's legislative action has removed the basis for invalidity so that it no longer substantially interferes with the goals of the act. The board may rescind a determination of invalidity but find continuing noncompliance, in which case the board may establish a compliance schedule or new compliance date.

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NEW SECTION

WAC 242-02-896 Continued noncompliance--Recommendation to the governor. If the board finds that the county or city continues to be in noncompliance with the act, the board shall transmit its findings to the governor. A board may recommend that sanctions authorized by the act be imposed. A jurisdiction's efforts to meet a compliance schedule shall be considered by the board in making a recommendation on sanctions to the governor.

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NEW SECTION

WAC 242-02-898 Appeals of a board's final decision. (1) Any party aggrieved by a final decision of a board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of service of the final 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.

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((DECLARATORY RULINGS))

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 242-02-430 Subpoena--Form.

WAC 242-02-440 Subpoena--Service.

WAC 242-02-450 Subpoena--Proof of service.

WAC 242-02-460 Subpoena--Quash or modification.

WAC 242-02-470 Subpoena--Geographical scope.