WSR 09-15-165

EXPEDITED RULES

GROWTH MANAGEMENT

HEARINGS BOARDS

[ Filed July 21, 2009, 12:21 p.m. ]

     Title of Rule and Other Identifying Information: Chapter 242-02 WAC, Practice and procedures, WAC 242-02-052, 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, and 242-02-534.

NOTICE

     THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Julie Ainsworth-Taylor, Rules Coordinator, Office of the Growth Management Hearings Boards, P.O. Box 40953, Olympia, WA 98504-0953, e-mail Juliet@cps.gmhb.wa.gov , AND RECEIVED BY no later than 5 p.m. on October 5, 2009.


     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Purpose of these amendments is to permanently amend certain sections of chapter 242-02 WAC which relate to an emergency rule-making order published in WSR 09-13-017. These amended sections reflect the consolidation of the administrative functions of the three growth management hearings boards into a single office. Amendments are needed to provide accurate, clarifying information and facilitate efficiency of document filing based on this consolidation.

     (1) Add language related to the office of the growth management hearings boards.

     (2) Clarifying form and size of documents.

     (3) Require electronic mail addresses be included in documents filed with the boards.

     (4) Allow for the filing and/or service of papers, including petitions for review, to be made by electronic mail.

     Reasons Supporting Proposal: These amendments implement the requirements or reductions in appropriations enacted with the recently adopted budget for upcoming fiscal year. The legislature's biennium appropriate [appropriations] reflects an approximate 16% reduction in the boards' budget, with budget notes specifically contemplating the consolidation of the boards into a single location. The boards' rules of practice and procedures must be amended to reflect this consolidation and create needed efficiency along with clarification for potential parties and the public. Amendments are needed to update procedures related to administrative decisions and meetings (regular and special) of the growth management hearings boards. (Exempt from CR-101 requirement based on RCW 34.05.310 (4)(g)(i), (d); filed as CR-105 based on RCW 34.05.353 (a) and (c)).

     Statutory Authority for Adoption: RCW 36.70.270(7).

     Statute Being Implemented: Chapter 36.70A RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Growth management hearings boards (Eastern, Western, and Central Puget Sound), governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Julie Ainsworth-Taylor, P.O. Box 40953, Olympia, WA 98504-0953, (425) 441-8250.

July 2009

James J. McNamara

Chair, Rules Committee


AMENDATORY SECTION(Amending WSR 03-15-047, filed 7/11/03, effective 8/11/03)

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 ((Western Washington)) joint boards in care of the office of growth management hearings boards.

     (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 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.]


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

WAC 242-02-080   Form and size of documents.   Documents, other than exhibits, shall be ((typewritten or printed, properly captioned, signed by the appropriate person submitting the same, shall include his/her address and telephone number, and shall be on 8-1/2 x 11 inch paper. Each board uses IBM compatible software. A board may request submission of a disk from a party, if appropriate)) provided in the manner indicated in a board's prehearing order.

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


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

WAC 242-02-140   Signing of pleadings, motions, and legal memoranda.   Every pleading, motion and legal memorandum of a party shall be dated and signed by the party, or the party's attorney or other authorized representative and include an address ((and)), telephone and fax numbers, and electronic mail address.

[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.]


AMENDATORY SECTION(Amending WSR 06-12-019, filed 5/26/06, effective 6/26/06)

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.

Respondent.

 PETITION FOR REVIEW

     (2) Numbered paragraphs stating:

     (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.]


AMENDATORY SECTION(Amending WSR 08-10-029, filed 4/28/08, effective 5/29/08)

WAC 242-02-230   Petition for review -- Service and filing.   (1) At least one copy of the petition for review shall be filed with the board by electronic mail, as provided in WAC 242-02-240, unless a petitioner does not have the technological capacity to do so. The original and four copies of the petition for review shall be filed with a board personally, or by first class, certified, or registered mail. Filings may also be made with a board by ((electronic mail or)) telefacsimile transmission as provided in WAC 242-02-240. A copy of the petition for review shall be personally served upon all other named parties or deposited in the mail and postmarked on or before the date filed with the board. When a county is a party, the county auditor shall be served in noncharter counties and the agent designated by the legislative authority in charter counties. The mayor, city manager, or city clerk shall be served when a city is a party. When the state of Washington is a party, the office of the attorney general shall be served at its main office in Olympia unless service upon the state is otherwise provided by law. Proof of service may be filed with the board pursuant to WAC 242-02-340.

     (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.]


AMENDATORY SECTION(Amending WSR 08-10-029, filed 4/28/08, effective 5/29/08)

WAC 242-02-240   Date of filing -- Facsimile and electronic mail.   (1) The date of filing shall be the date of actual receipt by a board at ((its)) the office of the growth management hearings boards. The date stamp placed on the petition shall be presumptive evidence of the date of receipt.

     (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.]


AMENDATORY SECTION(Amending WSR 08-10-029, filed 4/28/08, effective 5/29/08)

WAC 242-02-250   Notice of appearance and answer.   (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, telephone and fax numbers, and ((e-mail)) electronic mail address.

     (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.]


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

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,

          v.

     Respondent

           Case No.

Agreement for Direct Review

by . . . County Superior Court

     (b) Numbered paragraphs stating:

     (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.]


AMENDATORY SECTION(Amending WSR 08-10-029, filed 4/28/08, effective 5/29/08)

WAC 242-02-320   Method of service.   Service of papers, specified in WAC 242-02-310(1), shall be made by electronic mail unless the party does not have the technological capacity to do so. Service may also be made personally ((or)), by first class, registered or certified mail, or by telefacsimile transmission. ((The board may be served)) If service is by electronic mail ((filings, provided that)) or telefacsimile, an original and four copies ((are)) shall be properly addressed to a board, deposited in the mail, and postmarked no later than the same day. Exhibits shall not be served electronically but shall be deemed timely filed if included in the mailed copies.

[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.]


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

WAC 242-02-330   Service of papers -- When complete.   (1) Papers required to be filed with a board shall be deemed filed upon actual receipt during office hours at the board's office.

     (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.]


AMENDATORY SECTION(Amending WSR 04-21-046, filed 10/15/04, effective 11/15/04)

WAC 242-02-340   Proof of service -- Certificate.   Where proof of service is required by this chapter, by statute, or upon a board's request, filing the original document with the board and serving copies upon all attorneys or other authorized representatives of record and upon parties not represented together with one of the following documents shall constitute proof of service:

     (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.]


AMENDATORY SECTION(Amending WSR 08-10-029, filed 4/28/08, effective 5/29/08)

WAC 242-02-530   Motions -- Requirements.   (1) A motion is an application for an order or ruling. Every motion shall be in writing, unless made during a hearing; shall state with particularity the grounds; and shall set forth the relief or order sought. An original and four copies of the motion shall be filed with a board and a copy served on each opposing party or that party's attorney or other authorized representative.

     (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.]


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

WAC 242-02-534   Response to motions.   (1) A party served with a motion shall have ten days from the date of ((receipt)) service of the motion to respond to it, unless otherwise directed by the presiding officer. A response to the motion shall be filed with a board and a copy served on the opposing party/parties.

     (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.]

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