Effective Date of Rule: July 1, 2009, 12:01 a.m.

     Purpose: Amend sections of the boards' rules of practice and procedures to reflect the consolidation of the administrative functions of the three boards into a single office. Amendments are needed to streamline procedures, provide accurate information to potential parties, and facilitate electronic transmittal of documents.

     Citation of Existing Rules Affected by this Order: Amending WAC 242-02-040, 242-02-052, 242-02-070, 242-02-072, 242-02-074, 242-02-075, 242-02-080, 242-02-140, 242-02-210, 242-02-230, 242-02-240, 242-02-250, 242-02-292, 242-02-320, 242-02-330, 242-02-340, 242-02-530, 242-02-534, and 242-02-834.

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

     Under RCW 34.05.350 the agency for good cause finds that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: The legislature's biennium appropriation reflects an approximate 16% reduction in the boards' budgets, with budget notes specifically contemplating the consolidation of the boards' current three offices into a single location. In order to address these budget appropriations, a consolidation is needed to realize savings through efficiency and staff reductions. The boards' rules of practices must be amended to reflect this consolidation and create needed efficiency along with clarification to potential parties.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 19, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 19, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: May 27, 2009.

James J. McNamara, Chair

Rules Committee

OTS-2440.1

AMENDATORY SECTION(Amending WSR 98-01-144, filed 12/19/97, effective 1/20/98)

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

     (1) "Act" means the Growth Management Act, 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.

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

     (6) "Office of the growth management hearings boards" means the administrative office of the three growth management hearings boards established in RCW 36.70A.250.

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

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

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

     (((9))) (10) "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.

     (((10))) (11) "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.

     (((11))) (12) "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.

     (((12))) (13) "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). 98-01-144, § 242-02-040, filed 12/19/97, effective 1/20/98; 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.]

     (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:

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 appropriate board at its office.

[Statutory Authority: RCW 36.70A.270(7). 03-15-047, § 242-02-052, filed 7/11/03, effective 8/11/03; 00-09-094, § 242-02-052, filed 4/19/00, effective 5/20/00; 98-01-144, § 242-02-052, filed 12/19/97, effective 1/20/98. 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.]

     (2) Individual board. For purposes of making orders or decisions or transacting other official administrative business for an individual board, 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. A board member who does not attend a hearing shall review a transcript or recording of the hearing before signing the decision.

[Statutory Authority: RCW 36.70A.270(7). 03-15-047, § 242-02-070, filed 7/11/03, effective 8/11/03; 97-04-008, § 242-02-070, filed 1/24/97, effective 3/1/97. Statutory Authority: RCW 36.70A.270(6). 92-21-034, § 242-02-070, filed 10/15/92, effective 10/15/92.]

          web site: www.gmhb.wa.gov/central)) (1) The administration of the three boards is consolidated in one office - the office of the growth management hearings boards:

     Office of the Growth Management Hearings Boards

     319 - 7th Avenue S.E.

     Olympia, WA 98501

     P.O. Box 40953

     Olympia, WA 98504-0953

     360-586-0260

     360-664-8975 Fax

     e-mail: eastern@ew.gmhb.wa.gov

     western@ww.gmhb.wa.gov

     central@cps.gmhb.wa.gov

     web site: www.gmhb.wa.gov

     (2) The filing of all petitions, briefings, exhibits, and other documents related to any proceeding before an individual board shall be made to the office of the growth management hearings boards, with specific indication of the appropriate board's name - Eastern, Western, or Central Puget Sound.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-072, filed 4/28/08, effective 5/29/08; 03-15-047, § 242-02-072, filed 7/11/03, effective 8/11/03; 98-01-144, § 242-02-072, filed 12/19/97, effective 1/20/98. 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.]

     (a) Eastern Washington board - on the first Wednesday of each month at 10:00 a.m. or following any scheduled hearing on that date.

     (b) Western Washington board - on the second Wednesday of each month at 11:00 a.m. or following any scheduled hearing on that date.

     (c) Central Puget Sound board - on the first Monday of each month at 10:00 a.m. or following any scheduled hearing on that date.

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

     (3) An individual board shall make available the location of such a meeting if it is not to be held at the office of the growth management hearings boards.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-074, filed 4/28/08, effective 5/29/08; 06-12-019, § 242-02-074, filed 5/26/06, effective 6/26/06; 97-04-008, § 242-02-074, filed 1/24/97, effective 3/1/97. Statutory Authority: RCW 36.70A.270(6). 92-21-034, § 242-02-074, filed 10/15/92, effective 10/15/92.]

     (a) Each member of the boards; and

     (b) Each general circulation newspaper, television or radio station which has on file with the boards a written request to be notified of special meetings.

     (2) The written notice shall state the date and time of the meeting, and shall specify the business to be transacted by the boards. The boards will not take final action on any matter that is not specified in the written notice.

     (3) Notices of special meetings shall be sent by e-mail:

     (a) ((Ten days)) One day (twenty-four hours) before the scheduled meeting; except

     (b) When a special meeting is called to consider rule changes pursuant to chapter 34.05 RCW, the notice shall be sent at least twenty days prior to the meeting; and except

     (c) In the event of an emergency requiring board action, the notice and timing requirements may be waived as provided in RCW 42.30.080.

     (4) The special meeting shall be chaired by one of the board members who called the meeting.

     (5) A special meeting may be held by telephone conference call.

     (6) Two members of each board will constitute a quorum for a special meeting.

     (7) Members of the public may attend a special meeting by appearing at any of the three board offices, or the location of the special meeting, at the date and time set for the meeting.

[Statutory Authority: RCW 36.70A.270(7). 08-21-015, § 242-02-075, filed 10/3/08, effective 11/3/08.]

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, § 242-02-080, filed 10/15/92, effective 10/15/92.]

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, § 242-02-140, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-140, filed 10/15/92, effective 10/15/92.]

     (1) A caption in the following form:

     (a) Petitioner's name, mailing address ((and)), telephone number, and electronic mail address, 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, 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 specifying the type and the basis of the petitioner's standing before the board pursuant to RCW 36.70A.280(2);

     (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 any, shall be attached to the petition for review. Petitioner shall provide the board with a copy of the entire document being appealed within thirty days of filing a petition for review, unless otherwise directed by the board.

[Statutory Authority: RCW 36.70A.270(7). 06-12-019, § 242-02-210, filed 5/26/06, effective 6/26/06; 04-21-046, § 242-02-210, filed 10/15/04, effective 11/15/04; 97-04-008, § 242-02-210, filed 1/24/97, effective 3/1/97. 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.]

     (2) A board may dismiss a case for failure to substantially comply with subsection (1) of this section.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-230, filed 4/28/08, effective 5/29/08; 06-12-019, § 242-02-230, filed 5/26/06, effective 6/26/06; 04-21-046, § 242-02-230, filed 10/15/04, effective 11/15/04. Statutory Authority: RCW 36.70A.270(6). 92-21-034, § 242-02-230, filed 10/15/92, effective 10/15/92.]

     (2) Filing of any documents with a board by electronic mail or telefacsimile transmission is at the risk of the sender and shall not be deemed complete unless the following procedures are strictly observed:

     (a) An electronic mail or telefacsimile document will only be stamped "received" by the board between the hours of 8:00 a.m. and 5:00 p.m. excluding Saturdays, Sundays, and legal holidays. Any transmission not completed before 5:00 p.m. will be stamped received on the following business day. The date and time indicated by the board's telefacsimile machine or receiving computer shall be presumptive evidence of the date and time of receipt of transmission.

     (b) The original document and four copies ((must)) shall be mailed and postmarked or otherwise transmitted to the board on or before the date of sending the telefacsimile transmission or electronic mail.

     (c) Documents over fifteen pages in length may not be filed by telefacsimile without prior approval of the presiding officer.

     (3) A telefacsimile or electronic mail copy shall constitute an original solely for the purpose of establishing the date a document was filed.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-240, filed 4/28/08, effective 5/29/08; 04-21-046, § 242-02-240, filed 10/15/04, effective 11/15/04. Statutory Authority: RCW 36.70A.270(6). 94-07-033, § 242-02-240, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-240, filed 10/15/92, effective 10/15/92.]

     (2) The respondent, at its option, may file an answer to the petition for review. The respondent shall file the original and four 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.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-250, filed 4/28/08, effective 5/29/08; 04-21-046, § 242-02-250, filed 10/15/04, effective 11/15/04; 97-04-008, § 242-02-250, filed 1/24/97, effective 3/1/97. 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.]

     (a) A caption in the following form:

BEFORE THE . . . GROWTH MANAGEMENT
HEARINGS BOARD
STATE OF WASHINGTON

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

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

     (iii) Intervenor's name, mailing address ((and)), telephone number, and electronic mail address, 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.

[Statutory Authority: RCW 36.70A.270(7). 98-01-144, § 242-02-292, filed 12/19/97, effective 1/20/98.]

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-320, filed 4/28/08, effective 5/29/08; 04-21-046, § 242-02-320, filed 10/15/04, effective 11/15/04. Statutory Authority: RCW 36.70A.270(6). 94-07-033, § 242-02-320, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-320, filed 10/15/92, effective 10/15/92.]

     (2) All facsimile and electronic mail transmissions are sent at the risk of the sender and only pursuant to the procedures specified in WAC 242-02-240.

     (3) This section shall not extend any applicable time for appeal to a board nor extend the time for providing notice of appeal to any named party.

[Statutory Authority: RCW 36.70A.270(6). 94-07-033, § 242-02-330, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-330, filed 10/15/92, effective 10/15/92.]

     (1) An acknowledgement of service;

     (2) A certificate that the person signing the certificate did on the date of the certificate serve the papers upon each party or the party's attorney or other authorized representative of record in the proceeding by delivering a copy thereof in person to the named individuals;

     (3) A certificate that the person signing the certificate did on the date of the certificate serve the papers upon all parties of record in the case by:

     (a) Mailing a copy, properly addressed with postage prepaid, to each party or that party's attorney or other authorized representative; or

     (b) Transmitting a copy by electronic mail or telefacsimile ((device)), and on the same day mailing a copy to each party in the case or that party's attorney, or other authorized representative; or

     (c) Depositing a copy, properly addressed with charges prepaid, with a commercial parcel delivery company or courier service.

[Statutory Authority: RCW 36.70A.270(7). 04-21-046, § 242-02-340, filed 10/15/04, effective 11/15/04. Statutory Authority: RCW 36.70A.270(6). 94-07-033, § 242-02-340, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-340, filed 10/15/92, effective 10/15/92.]

     (2) All motions shall be properly captioned and signed by the moving party or that party's attorney or other authorized representative.

     (3) The motion shall specify the amount of time required for argument, whether appearance by telecommunication is requested, and the names ((and)), telephone numbers, and electronic mail addresses of all parties served with the motion.

     (4) Dispositive motions on a limited record, similar to a motion for summary judgment in superior court or a motion on the merits in the appellate courts, are permitted. Time frames for making and responding to such a motion shall be established by the presiding officer.

     (5) Motions to disqualify a hearing examiner acting as the presiding officer, or a board member, for bias, prejudice, interest or other cause, with supporting affidavit(s), may be filed with a board.

     (6) Any party may bring a motion for the board to decide a challenge to compliance with the notice and public participation requirements of the act raised in the petition for review, provided that the evidence relevant to the challenge is limited. If such a motion is timely brought, the presiding officer or the board shall determine whether to decide the notice and public participation issue(s) on motion or whether to continue those issues to the hearing on the merits.

[Statutory Authority: RCW 36.70A.270(7). 08-10-029, § 242-02-530, filed 4/28/08, effective 5/29/08; 06-12-019, § 242-02-530, filed 5/26/06, effective 6/26/06. Statutory Authority: RCW 36.70A.270(6). 94-23-112, § 242-02-530, filed 11/22/94, effective 12/23/94; 94-07-033, § 242-02-530, filed 3/9/94, effective 4/9/94; 92-21-034, § 242-02-530, filed 10/15/92, effective 10/15/92.]

     (2) The response shall specify the amount of time required for argument, whether appearance by telecommunication is requested, and the names ((and)), telephone numbers, and electronic mail addresses of all parties served with the response.

[Statutory Authority: RCW 36.70A.270(6). 92-21-034, § 242-02-534, filed 10/15/92, effective 10/15/92.]

[Statutory Authority: RCW 36.70A.270(7). 03-15-047, § 242-02-834, filed 7/11/03, effective 8/11/03; 00-09-094, § 242-02-834, filed 4/19/00, effective 5/20/00; 97-04-008, § 242-02-834, filed 1/24/97, effective 3/1/97.]

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