WSR 08-09-037

GROWTH MANAGEMENT

HEARINGS BOARDS

[ RL-08-001 and RL-08-002 -- Filed April 9, 2008, 1:16 p.m. ]


Eastern Washington, Western Washington, and Central Puget Sound

STATE OF WASHINGTON



In the matter of the petition for rule making of Futurewise (RL-08-001) and concerned residents on waste disposal (RL-08-002).

I. BACKGROUND: Pursuant to RCW 34.05.330(1) and WAC 242-02-052(1), on February 8, 2008,1 the Growth Management Hearings Boards (GMHBs) - Eastern Washington, Western Washington, and Central Puget Sound - received two petitions for rule making: Futurewise rule-making petition No. RL-08-001 and concerned residents on waste disposal (CROWD) rule-making petition No. RL-08-002.

Both Futurewise and CROWD petitioned the GMHBs to amend the boards' rules of practice and procedure, WAC 242-02-040 Definitions, by adding a new subsection as follows: "Standing" means a right to petition for board review of any issues within the board's jurisdiction, without regard to injury or any other factor not specifically included in RCW 36.70A.280 (2) and (4).

Pursuant to RCW 34.05.330(1) and WAC 242-02-054, on March 17, 2008, a special meeting was held telephonically to determine whether to deny the petitions or to initiate rule making.2 All of the current members of the GMHBs were present; James McNamara, Rules Committee Chair, presiding.3 Petitioners were also present; with Keith Scully for Futurewise and Kathy George for CROWD.

II. DISCUSSION: The boards have not uniformly interpreted standing in regards to claims based on the State Environmental Policy Act (SEPA), chapter 43.21C RCW, as it relates to plans, development regulations, or amendments thereto adopted under RCW 36.70A.040 or chapter 90.58 RCW. SEPA claims; with only the Central Puget Sound board requiring that in order for a party to raise a SEPA issue before the board it must demonstrate both injury-in-fact and zone of interest (the Trepanier test). For the Western and Eastern boards, in order to raise a SEPA issue the party must demonstrate that they have standing to file a petition pursuant to RCW 36.70A.280(2).

At the special meeting, each of the petitioners was permitted an opportunity to summarize their concerns which pertained to the conflict amongst the boards in regard to the application of standing to claims alleging violations of SEPA. The GMHBs deliberated on the proposals and, with a vote of seven to one, the GMHBs adopted motions to deny both of the petitions on March 17, 2008.4

The proposed amendment to the rules is believed by board members to be outside its jurisdiction, such change not being procedural. RCW 36.70A.270(7). Further, the boards recognize that they are autonomous and may interpret the statute differently. The boards further find that the adoption of the language offered by the petitioners appears to amend or contradict statutory definitions found in the Growth Management Act (GMA). The boards find that this disagreement concerning SEPA standing under the GMA would be better resolved through the other available avenues, to wit, an appeal to the governor, the state legislature, through clarifying legislation, or before the courts.

III. ORDER: Based upon review of the petitions for rule making, chapter 36.70A RCW, the GMA, chapter 34.05 RCW, Administrative Procedure Act, and chapter 242-02 WAC, boards' rules of practice and procedure, the GMHBs enter the following ORDER:


The petition for rule making filed by Futurewise - RL-08-001, requesting that the joint boards initiate rule making to amend WAC 242-02-040, is denied.
The petition for rule making filed by CROWD - RL-08-002, requesting that the joint boards initiate rule making to amend WAC 242-02-040, is denied.

Either petitioner may seek an alternative ruling on SEPA standing for GMA issues from the courts as provided by RCW 34.05.510 - [34.05].598, by appealing this denial to the governor as provided by RCW 34.05.330(3), or by the legislature.


So ORDERED this 7th day of April, 2008.


GROWTH MANAGEMENT HEARINGS BOARDS

EASTERN, WESTERN, AND CENTRAL PUGET SOUND


James McNamara, Chair - Rules Committee
Western Washington Growth Management Hearings Board
Dennis Dellwo, Rules Committee
Eastern Washington Growth Management Hearings Board
Edward McGuire, Rules Committee
Central Puget Sound Growth Management Hearings Board

1 The GMHB received an e-mail of the petitions on February 8, 2008; hard copies of the petitions were received on February 11, 2008.

2 The notice of the special meeting was published on the growth management hearings boards home page, was well as, on each individual board's web site. Petitioners were served with copies of the notice and it was filed with the code reviser for publication in the Washington State Register (WSR 08-05) on March 5, 2008.

3 The current board members are: Western Board - Holly Gadbaw and James McNamara; Eastern Board - Dennis Dellwo, John Roskelley, and Joyce Mulliken; Central Puget Sound Board - Edward McGuire, Margaret Pageler, and David Earling.

4 Each petition was voted on separately, with the GMHB voting 7 to 1 in favor of denying in regards to each petition.

Washington State Code Reviser's Office