WSR 13-11-110

EXPEDITED RULES

ENVIRONMENTAL AND

LAND USE HEARINGS OFFICE
(Shorelines Hearings Board)

[ Filed May 21, 2013, 9:32 a.m. ]

Title of Rule and Other Identifying Information: Amendments to shorelines hearings board (SHB) procedural rules WAC 461-08-305, 461-08-315, 461-08-320, 461-08-325, 461-08-330, 461-08-340, 461-08-345, and 461-08-500.

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 Kay Brown, Environmental and Land Use Hearings Office, P.O. Box 40903, Olympia, WA 98504-0903 , AND RECEIVED BY July 22, 2103 [2013].

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of these changes are to:

(1) Comply with SSB 5192, RCW 90.58.090, 90.58.140, 90.58.180, 90.58.190, which made changes to notice and appeal provisions for amendments to local shoreline master programs, and the starting dates for timelines pertaining to appeals of permit decisions to the SHB. These changes were codified at RCW 90.58.090, 90.58.140, 90.58.180, and 90.58.190.

(2) Update the name of the agency, its address, and telephone number.

(3) Correct a citation to the agency's public records rules.

(4) Update references to information on the agency's web site.

Reasons Supporting Proposal: Changes identified in (1) above are necessary to implement SSB 5192, chapter 277, Laws of 2011, and are specifically dictated by that statute. The other changes (Nos. (2)-(4)) provide updated information to the public regarding the agency's name, contact information, cite to public record's rules, and web site.

Statutory Authority for Adoption: RCW 90.58.175, 90.58.090, 90.58.140, 90.58.180, 90.58.190.

Statute Being Implemented: RCW 90.58.090, 90.58.140, 90.58.180, 90.58.190.

Name of Proponent: Environmental and land use hearing[s] office and shorelines hearings board, governmental.

Name of Agency Personnel Responsible for Drafting: Kay Brown, Environmental and Land Use Hearings Office, (360) 664-9160; Implementation and Enforcement: Kathleen D. Mix, Environmental and Land Use Hearings Office, (360) 664-9160.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Changes identified in (1) above are necessary to implement SSB 5192, chapter 277, Laws of 2011, and are specifically dictated by that statute. The other changes (Nos. (2)-(4)) provide updated information to the public regarding the agency's name, contact information, cite to public record's rules, and web site.

May 21, 2013

Kathleen D. Mix

Agency Director

OTS-5467.1


AMENDATORY SECTION(Amending WSR 10-18-021, filed 8/23/10, effective 9/23/10)

WAC 461-08-305   Definitions.   The following terms apply throughout this chapter and, unless the context clearly requires otherwise, have the following meanings:

(1) "Agency" means any state governmental entity.

(2) "Adjudicative proceeding" means a proceeding involving an opportunity for hearing before the board as defined in chapter 34.05 RCW. The terms "appeal," "adjudicative proceeding" and "case" are used interchangeably in this chapter.

(3) "Board" means the shorelines hearings board, a quasi-judicial body created pursuant to chapter 90.58 RCW and described in WAC 461-08-315.

(4) "Date of ((receipt" means:

(a) Five business days after the date of mailing; or

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt; however, may not exceed forty-five days from the date of mailing)) filing" as used in this chapter and RCW 90.58.140(6) has different meanings depending upon the type of local government decision that is being appealed.

(a) "Date of filing" of a local government's approval or denial of a substantial development permit, or local government's denial of a variance or conditional use permit, is the date of actual receipt by the department of the local government's decision.

(b) "Date of filing" of a local government's approval of a conditional use permit or variance is the date that the department transmits its final decision or order to local government.

(c) For substantial development permits filed simultaneously with approvals of conditional use permits or variances, the "date of filing" is the date that the department transmits its final decision or order on the variance or conditional use permit to local government.

(5) "Department" refers to and means the department of ecology.

(6) "Filing" of a document means actual receipt by the board during regular office hours. Any document filed with the board shall contain an affirmation that copies were served on the appropriate agency, local government and parties. Filing by facsimile is permitted of documents ten pages or less if the original document is concurrently mailed or submitted to a commercial delivery service. Electronic filing of documents, other than the appeal document itself, may be authorized by the presiding officer after consultation with the parties regarding format and authentication.

(7) "Local government" means any county, incorporated city or town which contains within its boundaries any lands or water subject to chapter 90.58 RCW.

(8) "Party" means:

(a) A person to whom any local government or agency decision is specifically directed; or

(b) A person named as a party to the appeal, or allowed to intervene or joined as a party by the board.

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

(10) "Petition for review" is a document that when properly filed with the board initiates an adjudicative proceeding before the board.

(11) "Presiding officer" means any member of the board or an administrative appeals judge who is assigned to conduct a conference or hearing by the chairperson or the vice-chairperson.

(12) "Service" of a document means delivery of the document to the other parties to the appeal. Service may be made in any of the following ways:

(a) Personally, in accordance with the laws of the state, with a return of service or affidavit of service completed.

(b) First-class, registered or certified mail. Service is complete upon deposit in the United States mail properly stamped and addressed.

(c) Facsimile transmission with mailing or submission to a commercial delivery service of copies on the same day. Service by facsimile is regarded as complete by production of the confirmation of transmission and evidence of mailing or submission to a delivery service of the copies.

(d) Commercial delivery service. Service by commercial delivery service is regarded as complete upon delivery to the delivery company with charges prepaid.

(e) Electronic service. Electronic service of documents, other than the appeal document itself, is authorized if the parties agree to electronic service or if authorized by the presiding officer.

[Statutory Authority: RCW 43.21B.170, 90.58.175, 2010 c 84, 2010 c 130, 2010 c 210, and 2010 c 285. 10-18-021, 461-08-305, filed 8/23/10, effective 9/23/10. Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-305, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-305, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-315   Board membership, function and jurisdiction.   (1) Members. The board is made up of six members. Three members are also members of the pollution control hearings board and are appointed by the governor. A fourth member is appointed by the association of Washington cities and a fifth member is appointed by the association of county commissioners. The sixth member is the commissioner of public lands or the commissioner's designee.

(2) Function and jurisdiction. This board is a quasi-judicial body with powers of de novo review authorized by chapter 90.58 RCW to adjudicate or determine the following matters:

(a) Appeals from any person aggrieved by the granting, denying or rescinding of a permit issued or penalties incurred pursuant to chapter 90.58 RCW;

(b) Appeals of department rules, regulations or guidelines; and

(c) Appeals from department decisions to approve((,)) or reject ((or modify)) a proposed master program or program amendment of local governments which are not planning under RCW 36.70A.040.

(3) This section is intended to be general and informational only and failure herein to list matters over which the board has jurisdiction shall not constitute a waiver or withdrawal of that jurisdiction.

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-315, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 02-06-008, filed 2/22/02, effective 3/25/02)

WAC 461-08-320   Office hours, telephone number, telefacsimile number and address of the board.   (1) The administrative business of the board, except rule making, is performed by the environmental and land use hearings office. To the extent necessary for rule making, the appeals board holds regular meetings at 10:00 a.m. on the second Tuesday of each month at the address set forth below.

(2) The board is organized within the Environmental and Land Use Hearings Office, ((4224 - 6th Avenue SE, Building No. 2 Rowe Six, Lacey,)) 1111 Israel Road S.W., Tumwater, Washington. The mailing address is:


Shorelines Hearings Board

((4224 6th Avenue S.E., Building No. 2, Rowe Six))

P.O. Box 40903

((Lacey)) Olympia, WA 98504-0903


(3) The telephone number of the board is (((360) 459-6327)) 360-664-9160. The telefacsimile number is (((360) 438-7699)) 360-586-2253.

(4) The office hours of the environmental and land use hearings office are 8:00 a.m. to 5:00 p.m., Monday through Friday, except for legal holidays.

[Statutory Authority: RCW 90.58.175. 02-06-008, 461-08-320, filed 2/22/02, effective 3/25/02; 96-15-002, 461-08-320, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 07-03-074, filed 1/17/07, effective 2/17/07)

WAC 461-08-325   Public information about practice before the board and public records.   (1) Questions about board procedures may be directed to the environmental and land use hearings office by mail or, during regular office hours, by telephone or by telefacsimile.

(2) Case files of appeals pending before the board, past written opinions of the board and other public records maintained by the board under chapter ((198-12)) 198-14 WAC are available for public inspection and copying during regular office hours at the environmental hearings office. The form for requests for public records is set forth in WAC ((198-12-140)) 198-14-050. Any person seeking to make copies of such public records may copy the documents at the environmental and land use hearings office for a reasonable charge per page.

(3) The environmental and land use hearings office maintains a web site with information on the shorelines hearings board, including information about the board members, the board hearings calendar, past decisions of the board, a ((handbook)) brief description of the appeal process with helpful information for practice before the board, a set of frequently asked questions, sample forms, and links to the board's rules of ((practice)) procedure and other pertinent statutes and rules. This web site may be accessed via the internet at ((http://www.eho.wa.gov)) http://www.eluho.wa.gov.

[Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-325, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-325, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 09-21-032, filed 10/13/09, effective 11/13/09)

WAC 461-08-330   Board decision making on appeals.   The number of board members required to make a decision on a case differs depending on the type of case.

(1) Short-board appeals. Pursuant to RCW 90.58.185, petitions for review that involve a single-family residence or an appurtenance to a single-family residence, including a dock or pier for a single-family residence, and petitions for review involving a penalty of fifteen thousand dollars or less, may be heard by a panel of three board members. The chair of the hearings board may also designate other cases for review by a short-board appeal panel. In designating these cases, the chair shall consider factors such as the complexity and precedential nature of the case and the efficiency and cost-effectiveness of using a short board versus a full board. A short-board appeal panel must have at least one but not more than two members of the pollution control hearings board. Two members of the panel must agree to issue a final decision. The decision of the panel is the final decision of the full board.

(2) Full-board appeals. All other appeals are full-board appeals. Four members of the board constitute a quorum for making a decision and may act even if the other two members are unavailable or have not yet been appointed.

(3) Administrative appeals judges. For both full-board and short-board cases, the chairperson may appoint an administrative appeals judge from the environmental and land use hearings office to be the presiding officer.

[Statutory Authority: RCW 90.58.175, chapter 34.05 RCW. 09-21-032, 461-08-330, filed 10/13/09, effective 11/13/09. Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-330, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-330, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 10-18-021, filed 8/23/10, effective 9/23/10)

WAC 461-08-340   Where to file a petition for review and number of copies.   (1) An adjudicative proceeding before the board is initiated by filing a petition for review with the board at the environmental and land use hearings office. The board shall acknowledge filing of the petition for review by a stamp and the board's stamp on the petition is prima facie evidence of the date of filing. The board may thereafter require that additional copies be filed.

(2) Deadlines for filing a petition for review. Different deadlines for filing a petition for review apply depending upon the type of shoreline decision or government action taken, and whether local government or the department makes the final decision.

(a) Any person aggrieved by a local government's decision granting, denying or rescinding a shoreline substantial development, or its denial of a shoreline conditional use or variance must file a petition for review with the board within twenty-one days of the "date of ((receipt by the applicant of a written notice from the department that the department has received the local government's shoreline decision)) filing" as defined in WAC 461-08-305 (4)(a).

(b) If local government approves a shoreline conditional use or variance permit, that action will be reviewed by the department, which will make the final decision on the conditional use or variance permit. Any person aggrieved by the department's decision to approve, approve with conditions or deny a conditional use or variance permit must file a petition for review with the board within twenty-one days of the "date of ((receipt by the local government or applicant of the department's decision)) filing" as defined in WAC 461-08-305 (4)(b).

(c) When a local government simultaneously transmits to the department its decision on a shoreline substantial development with its approval of a shoreline conditional use permit and/or variance, a petition for review of the shoreline substantial development decision must be filed no later than twenty-one days from the "date of ((receipt by the local government or applicant of the department's decision on the conditional use or variance permit)) filing" as defined in WAC 461-08-305 (4)(c).

(d) A petition for review by a person who has incurred a penalty assessment must be filed with the board within thirty days of the date of receipt of the penalty.

(e) A petition for review by any person aggrieved by the department's final decision to approve, or reject a proposed master program, or master program amendment, by a local government that is not planning under the Growth Management Act, RCW 36.70A.040, must be filed with the board within thirty days of the date ((of the department's written notice to the local government of its final decision)) that the department publishes notice of its final decision under RCW 90.58.090(8).

(f) A petition for review of any rules, regulations, or guidelines adopted or approved by the department pursuant to chapter 90.58 RCW must be filed with the board within thirty days of the date of adoption or approval.

[Statutory Authority: RCW 43.21B.170, 90.58.175, 2010 c 84, 2010 c 130, 2010 c 210, and 2010 c 285. 10-18-021, 461-08-340, filed 8/23/10, effective 9/23/10. Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-340, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-340, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 10-18-021, filed 8/23/10, effective 9/23/10)

WAC 461-08-345   Deadline for filing petition for review of permitting decisions by the department or attorney general.   The department or the attorney general may, pursuant to RCW 90.58.180(2), obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition for review with the board and the appropriate local government within twenty-one days from the date ((of receipt of)) the final decision was filed as provided in RCW 90.58.140(6).

[Statutory Authority: RCW 43.21B.170, 90.58.175, 2010 c 84, 2010 c 130, 2010 c 210, and 2010 c 285. 10-18-021, 461-08-345, filed 8/23/10, effective 9/23/10. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-345, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 02-06-010, filed 2/22/02, effective 3/25/02)

WAC 461-08-500   Scope and standard of review and burden of proof.   (1) Hearings upon petitions for review shall be quasi-judicial in nature. The scope and standard of review shall be de novo unless otherwise required by law. However, the board shall conduct the following types of hearings on the record compiled by the department:

(a) Petitions for review of department decisions to adopt or approve rules, regulations or guidelines pursuant to chapter 90.58 RCW; and

(b) Petitions for review to approve((,)) or reject ((or modify)) a proposed master program or master program amendment.

(2) The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law.

(3) Persons requesting review pursuant to RCW 90.58.180 (1) and (2) shall have the burden of proof in the matter. The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders.

[Statutory Authority: RCW 90.58.175. 02-06-010, 461-08-500, filed 2/22/02, effective 3/25/02; 96-15-002, 461-08-500, filed 7/3/96, effective 8/3/96.]