6637-S AMH .... H5500.1 [atlas:amendment]

6637-S AMH .... H5500.1

SSB 6637 - H AMD 505

By Representative Reams

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 36.70A.270 and 1994 c 257 s 1 are each amended to read as follows:

Each growth ((~~planning~~)) management hearings board shall be governed by the following rules on conduct and procedure:

(1) Any board member may be removed for inefficiency, malfeasance, and misfeasance in office, under specific written charges filed by the governor. The governor shall transmit such written charges to the member accused and the chief justice of the supreme court. The chief justice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Removal of any member of a board by the tribunal shall disqualify such member for reappointment.

(2) Each board member shall receive reimbursement for travel expenses incurred in the discharge of his or her duties in accordance with RCW 43.03.050 and 43.03.060. If it is determined that the review boards shall operate on a full-time basis, each member shall receive an annual salary to be determined by the governor pursuant to RCW 43.03.040. If it is determined that a review board shall operate on a part-time basis, each member shall receive compensation pursuant to RCW 43.03.250, provided such amount shall not exceed the amount that would be set if they were a full-time board member. The principal office of each board shall be located by the governor within the jurisdictional boundaries of each board. The boards shall operate on either a part-time or full-time basis, as determined by the governor.

(3) Each board member shall not: (a) Be a candidate for or hold any other public office or trust; (b) engage in any occupation or business interfering with or inconsistent with his or her duty as a board member; and (c) for a period of one year after the termination of his or her board membership, act in a representative capacity before the board on any matter.

(4) A majority of each board shall constitute a quorum for making orders or decisions, adopting rules necessary for the conduct of its powers and duties, or transacting other official business, and may act even though one position of the board is vacant. One or more members may hold hearings and take testimony to be reported for action by the board when authorized by rule or order of the board. The board shall perform all the powers and duties specified in this chapter or as otherwise provided by law.

(5) The board may appoint one or more hearing examiners to assist the board in its hearing function, to make conclusions of law and findings of fact and, if requested by the board, to make recommendations to the board for decisions in cases before the board. Such hearing examiners must have demonstrated knowledge of land use planning and law. The boards shall specify in their joint rules of practice and procedure, as required by subsection (7) of this section, the procedure and criteria to be employed for designating hearing examiners as a presiding officer. Hearing examiners selected by a board shall meet the requirements of subsection (3) of this section. The findings and conclusions of the hearing examiner shall not become final until they have been formally approved by the board. This authorization to use hearing examiners does not waive the requirement of RCW 36.70A.300 that final orders be issued within one hundred eighty days of board receipt of a petition.

(6) Each board shall make findings of fact and prepare a written decision in each case decided by it, and such findings and decision shall be effective upon being signed by two or more members of the board and upon being filed at the board's principal office, and shall be open for public inspection at all reasonable times.

(7) All proceedings before the board, any of its members, or a hearing examiner appointed by the board shall be conducted in accordance with such administrative rules of practice and procedure as the boards jointly prescribe. All three boards shall jointly meet to develop and adopt joint rules of practice and procedure, including rules regarding expeditious and summary disposition of appeals. The boards shall publish such rules and decisions they render and arrange for the reasonable distribution of the rules and decisions. Except as it conflicts with provisions of this chapter, the administrative procedure act, chapter 34.05 RCW, shall govern the ((~~administrative rules of~~)) practice and procedure ((~~adopted by~~)) of the boards.

(8) A board member or hearing examiner is subject to disqualification ((~~for bias, prejudice, interest, or any other cause for which a judge is disqualified~~)) under chapter 34.05 RCW. The joint rules of practice of the boards shall establish procedures by which a party to a hearing conducted before the board may file with the board a motion to disqualify, with supporting affidavit, against a board member or hearing examiner assigned to preside at the hearing.

(9) The members of the boards shall meet jointly on at least an annual basis with the objective of sharing information that promotes the goals and purposes of this chapter.

Sec. 2. RCW 36.70A.280 and 1995 c 347 s 108 are each amended to read as follows:

(1) A growth management hearings board shall hear and determine only those petitions alleging either:

(a) That a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW; or

(b) That the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.

(2) A petition may be filed only by: (a) The state, or a county or city that plans under this chapter((,)); (b) a person who has ((~~either appeared~~)) participated orally or in writing before the county or city regarding the matter on which a review is being requested ((or)); (c) a person who is certified by the governor within sixty days of filing the request with the board((,)); or (d) a person qualified pursuant to RCW 34.05.530.

(3) For purposes of this section "person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit thereof, or public or private organization or entity of any character.

(4) When considering a possible adjustment to a growth management planning population projection prepared by the office of financial management, a board shall consider the implications of any such adjustment to the population forecast for the entire state.

The rationale for any adjustment that is adopted by a board must be documented and filed with the office of financial management within ten working days after adoption.

If adjusted by a board, a county growth management planning population projection shall only be used for the planning purposes set forth in this chapter and shall be known as a "board adjusted population projection". None of these changes shall affect the official state and county population forecasts prepared by the office of financial management, which shall continue to be used for state budget and planning purposes.

Sec. 3. RCW 36.70A.300 and 1995 c 347 s 110 are each amended to read as follows:

(1) The board shall issue a final order within one hundred eighty days of receipt of the petition for review, or, when multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated. Such a final order shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to plans, development regulations, and amendments thereto, adopted under RCW 36.70A.040 or chapter 90.58 RCW. In the final order, the board shall either: (a) Find that the state agency, county, or city is in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs; or (b) find that the state agency, county, or city is not in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, in which case the board shall remand the matter to the affected state agency, county, or city and specify a reasonable time not in excess of one hundred eighty days within which the state agency, county, or city shall comply with the requirements of this chapter.

(2) A finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand((~~, unless the board's~~)). In addition, the board may issue a determination of invalidity as part of its final order ((~~also~~)) of noncompliance which shall:

(a) Include((s)) a determination, supported by findings of fact and conclusions of law, that the continued validity of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter; and

(b) ((~~Specifies~~)) Specify the particular part or parts of the plan or regulation that are determined to be invalid, the geographic area or areas where the determination of invalidity is applicable, if appropriate, and the reasons for their invalidity.

(3) A determination of invalidity shall((:

~~(a)~~)) not take effect until at least ninety days after the determination of invalidity was made, during which period the board shall review the progress of the county or city. If, after holding a hearing on the matter, the board finds that the county or city is making substantial progress toward adopting a plan or regulations or taking other actions under this chapter, relating to the order, that would not be determined to be invalid under subsection (2) of this section, the board shall extend the ninety-day period for a reasonable period and continue its jurisdiction over the matter. If, after holding a hearing on the matter, the board finds that substantial progress is not being made, the board shall enter an order effectuating the determination of invalidity. The hearing must be held prior to the ninetieth day. Another hearing shall be held prior to the end of any extension granted by the board. Any order effectuating the determination of invalidity shall be prospective in effect and shall not extinguish rights that ((~~vested~~)) vest under state or local law before or after the date of the board's order((~~; and~~

~~(b) Subject~~)) effectuating the determination of invalidity. Any order effectuating the determination of invalidity shall not affect the validity of the comprehensive plan, development regulations, or other actions taken under this chapter, except that any ((~~development~~)) application for the division of land under chapter 58.17 RCW, in any geographic area or areas where the determination of invalidity is applicable, that would otherwise vest after the date of the board's order effectuating the determination of invalidity, shall vest to the local ordinance or resolution that ((~~both is enacted in response to the order of remand and determined by the board pursuant to RCW 36.70A.330 to comply with the requirements of this chapter~~)) the county or city adopts in response to the order effectuating the determination of invalidity after the board determines that the response would not be invalidated under subsection (2) of this section. Boundary line adjustments that do not increase the number of lots are not affected by an order effectuating a determination of invalidity. The board shall hold a hearing before removing the order effectuating its determination of invalidity.

(4) ((If the ordinance that adopts a plan or development regulation under this chapter includes a savings clause intended to revive prior policies or regulations in the event the new plan or regulations are determined to be invalid, the board shall determine under subsection (2) of this section whether the prior policies or regulations are valid during the period of remand.)) A county or city for which a determination of invalidity was made prior to the effective date of this act may petition the board for a stay of the determination of invalidity, based on a showing under the procedures of subsection (3) of this section that it is making substantial progress toward adopting a plan or development regulations, or taking other actions under this chapter, relating to the order, that would not otherwise be declared invalid under subsection (2) of this section. After holding a hearing, the board shall enter an order rescinding, staying, modifying, or continuing the prior determination of invalidity.

(5) Any party aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board. The court shall conduct an independent review of the board's legal conclusions.

NEW SECTION. Sec. 4. A new section is added to chapter 36.70A RCW to read as follows:

The court shall provide expedited review of a determination of invalidity or an order effectuating a determination of invalidity made or issued under RCW 36.70A.300. The matter must be set for hearing within sixty days of the date set for submitting the board's record, absent a showing of good cause for a different date or a stipulation of the parties.

Sec. 5. RCW 36.70A.320 and 1995 c 347 s 111 are each amended to read as follows:

(1)(a) Except as provided in subsection (2) of this section, designations, comprehensive plans ((~~and~~)), development regulations, and other actions required by this chapter, and amendments thereto, adopted under this chapter are presumed valid upon adoption. In any petition under this chapter, the board, after full consideration of the petition, shall determine whether there is compliance with the requirements of this chapter. In recognition of the broad range of discretion that may be exercised by counties and cities consistent with the requirements of this chapter, the board shall not substitute its judgment for that of a county or city regarding the exercise of such discretion. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). The board has no discretion to prioritize, balance, or rank the goals set forth in RCW 36.70A.020, all of which shall be used by counties and cities as provided in RCW 36.70A.020.

(b) The burden of proof shall be on the petitioner. The board shall find compliance unless it finds ((~~by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter~~)) that: (i) The state agency, county, or city erroneously interpreted this chapter; or (ii) the action of the state agency, county, or city is not supported by evidence that is substantial when reviewed in light of the whole record before the board.

(2) The shoreline element of a comprehensive plan and the applicable development regulations adopted by a county or city shall take effect as provided in chapter 90.58 RCW.

NEW SECTION. Sec. 6. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 7. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately."