BP BHEAD INT H

AN ACT Relating to growth management hearings boards; amending RCW 36.70A.270, 36.70A.280, 36.70A.290, 36.70A.300, 36.70A.310, 36.70A.320, 36.70A.340, 36.70A.480, and 90.58.190; recodifying RCW 36.70A.340; and repealing RCW 36.70A.330.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

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~~)) Each 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~~)) decisions be made within one hundred eighty days of board receipt of a petition. Each board may mediate disputes between counties or cities, over whether their comprehensive plans are coordinated or consistent, by using one or more of its own members, hiring staff to provide mediation, or contracting for the provision of mediation.

(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 arrange for the reasonable distribution of the rules. The administrative procedure act, chapter 34.05 RCW, shall govern the administrative rules of practice and procedure adopted by 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. 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)) has not taken an action required under this chapter by the time the action is required to have been taken; 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~~)) a county or city has not addressed relevant issues associated with an action required to be taken under this chapter; or

(c) That the comprehensive plan of a county or city adopted under this chapter is not coordinated with, or consistent with, the comprehensive plan of another county or city, as required under RCW 36.70A.100.

(2) A petition alleging that a county or city has not addressed issues associated with an action required under this chapter, or that the comprehensive plan of a county or city is not coordinated with or consistent with another comprehensive plan as required under RCW 36.70A.100, may be filed only by the state, a county or city that plans under this chapter, a person who has either appeared before the county or city regarding the matter on which a review is being requested or is certified by the governor within sixty days of filing the request with the board, or a person qualified pursuant to RCW 34.05.530. A petition alleging that a county or city has not taken an action required under this chapter, by the time such action is required to have been taken, may be filed by any person.

(3) For purposes of this section "person" means any individual, partnership, corporation, association, 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.290 and 1995 c 347 s 109 are each amended to read as follows:

(1) All requests for review to a growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board.

(2) All petitions relating to whether or not ((~~an adopted comprehensive plan, development regulation, or permanent amendment thereto, is in compliance with the goals and requirements of this chapter or chapter 90.58 or 43.21C RCW~~)) a county or city has addressed relevant issues associated with an action required under this chapter must be filed within sixty days after publication by the legislative ((~~bodies~~)) authority of the county or city. All petitions relating to whether or not comprehensive plans are coordinated or consistent, as required under RCW 36.70A.100, must be filed within sixty days after publication by the legislative authority of the county or city adopting or amending its comprehensive plan that is alleged not to be coordinated or consistent with another comprehensive plan. Petitions relating to whether a county or city has not taken an action required under this chapter by the time such action is required to have been taken may be filed at any time.

((~~(a) Except as provided in (c) of this subsection,~~)) The date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published.

((~~(b)~~)) Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto. ((~~Except as provided in (c) of this subsection, for purposes of this section~~)) The date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.

(((c) For local governments planning under RCW 36.70A.040, promptly after approval or disapproval of a local government’s shoreline master program or amendment thereto by the department of ecology as provided in RCW 90.58.090, the local government shall publish a notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology. For purposes of this section, the date of publication for the adoption or amendment of a shoreline master program is the date the local government publishes notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology.))

(3) Unless the board dismisses the petition as frivolous or finds that the person filing the petition lacks standing, the board shall, within ten days of receipt of the petition, set a time for hearing the matter.

(4) The board shall base its decision on the record developed by the city((,)) or county((~~, or the state~~)) and supplemented with additional evidence if the board determines that such additional evidence would be necessary or of substantial assistance to the board in reaching its decision.

(5) The board, shall consolidate, when appropriate, all petitions involving the review of the same comprehensive plan or the same development regulation or regulations.

Sec. 4. 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~~)) render its decision 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~~)) rendering its decision, 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~~)) either has, or has not, taken the action by the time such action is required to have been taken; 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~~)) either has, or has not, addressed relevant issues associated with an action required under this chapter, but may not consider the adequacy of the actions taken by the county or city. If the board finds that the county or city has not addressed the relevant issues, 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 and the person or persons appealing the action 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 final order also:~~

(a) Includes 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 the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.~~

~~(3) A determination of invalidity shall:~~

~~(a) Be prospective in effect and shall not extinguish rights that vested under state or local law before the date of the board's order; and~~

(b) Subject any development application that would otherwise vest after the date of the board's order 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.

(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.

~~(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~~)) attempt to resolve the dispute; or

(c) Find that the comprehensive plans either are, or are not, coordinated or consistent, as required under RCW 36.70A.100. If the board finds that the comprehensive plans are not coordinated or consistent, the board shall mediate between the affected counties or cities to resolve the lack of coordination or lack of consistency.

(2) Nothing in RCW 36.70A.250 through 36.70A.345 precludes an aggrieved party from filing a law suit seeking equitable relief against a county or city for failing to comply with the requirements of this chapter or seeking other remedies that may exist challenging the actions of a county or city taken under this chapter.

Sec. 5. RCW 36.70A.310 and 1994 c 249 s 32 are each amended to read as follows:

A request for review by the state to a growth management hearings board under RCW 36.70A.280(1) may be made only by the governor, or with the governor's consent the head of an agency, or by the commissioner of public lands as relating to state trust lands((, for the review of whether: (1) A county or city that is required or chooses to plan under RCW 36.70A.040 has failed to adopt a comprehensive plan or development regulations, or county-wide planning policies within the time limits established by this chapter; or (2) a county or city that is required or chooses to plan under this chapter has adopted a comprehensive plan, development regulations, or county-wide planning policies, that are not in compliance with the requirements of this chapter)).

Sec. 6. RCW 36.70A.320 and 1995 c 347 s 111 are each amended to read as follows:

((~~(1) Except as provided in subsection (2) of this section,~~)) Comprehensive plans and development regulations, 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 making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). 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.

~~(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~~)) render its decision.

Sec. 7. RCW 36.70A.340 and 1991 sp.s. c 32 s 26 are each amended to read as follows:

((~~Upon receipt from the board of a finding that a state agency, county, or city is in noncompliance under RCW 36.70A.330, or as a result of failure to meet the requirements of~~)) If sanctions are imposed under RCW 36.70A.210 or 36.70A.345, the governor may either:

(1) Notify and direct the director of the office of financial management to revise allotments in appropriation levels;

(2) Notify and direct the state treasurer to withhold the portion of revenues to which the county or city is entitled under one or more of the following: The motor vehicle fuel tax, as provided in chapter 82.36 RCW; the transportation improvement account, as provided in RCW 47.26.084; the urban arterial trust account, as provided in RCW 47.26.080; the rural arterial trust account, as provided in RCW 36.79.150; the sales and use tax, as provided in chapter 82.14 RCW; the liquor profit tax, as provided in RCW 66.08.190; and the liquor excise tax, as provided in RCW 82.08.170; or

(3) File a notice of noncompliance with the secretary of state and the county or city, which shall temporarily rescind the county or city's authority to collect the real estate excise tax under RCW 82.46.030 until the governor files a notice rescinding the notice of noncompliance.

Sec. 8. RCW 36.70A.480 and 1995 c 347 s 104 are each amended to read as follows:

(1) For shorelines of the state, the goals and policies of the shoreline management act as set forth in RCW 90.58.020 are added as one of the goals of this chapter as set forth in RCW 36.70A.020. The goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW shall be considered an element of the county or city's comprehensive plan. All other portions of the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations.

(2) The shoreline master program shall be adopted pursuant to the procedures of chapter 90.58 RCW, including appeals to the shorelines hearings board, rather than the procedures set forth in this chapter for the adoption of a comprehensive plan or development regulations and requests for review by a growth management hearings board.

Sec. 9. RCW 90.58.190 and 1995 c 347 s 311 are each amended to read as follows:

(1) The appeal of the department’s decision to adopt a master program or amendment pursuant to RCW 90.58.070(2) or 90.58.090(4) is governed by RCW 34.05.510 through 34.05.598.

(2)(a) ((The department's decision to approve, reject, or modify a proposed master program or amendment adopted by a local government planning under RCW 36.70A.040 shall be appealed to the growth management hearings board with jurisdiction over the local government. The appeal shall be initiated by filing a petition as provided in RCW 36.70A.250 through 36.70A.320.

(b) If the appeal to the growth management hearings board concerns shorelines, the growth management hearings board shall review the proposed master program or amendment for compliance with the requirements of this chapter and chapter 36.70A RCW, the policy of RCW 90.58.020 and the applicable guidelines, and chapter 43.21C RCW as it relates to the adoption of master programs and amendments under chapter 90.58 RCW.

(c) If the appeal to the growth management hearings board concerns a shoreline of state-wide significance, the board shall uphold the decision by the department unless the board, by clear and convincing evidence, determines that the decision of the department is inconsistent with the policy of RCW 90.58.020 and the applicable guidelines.

~~(d) The appellant has the burden of proof in all appeals to the growth management hearings board under this subsection.~~

~~(e) Any party aggrieved by a final decision of a growth management hearings board under this subsection may appeal the decision to superior court as provided in RCW 36.70A.300.~~

~~(3)(a)~~)) The department's decision to approve, reject, or modify a proposed master program or master program amendment ((~~by a local government not planning under RCW 36.70A.040~~)) shall be appealed to the shorelines hearings board by filing a petition within thirty days of the date of the department’s written notice to the local government of the department’s decision to approve, reject, or modify a proposed master program or master program amendment as provided in RCW 90.58.090(2).

(b) In an appeal relating to shorelines, the shorelines hearings board shall review the proposed master program or master program amendment and, after full consideration of the presentations of the local government and the department, shall determine the validity of the local government's master program or amendment in light of the policy of RCW 90.58.020 and the applicable guidelines.

(c) In an appeal relating to shorelines of state-wide significance, the shorelines hearings board shall uphold the decision by the department unless the board determines, by clear and convincing evidence that the decision of the department is inconsistent with the policy of RCW 90.58.020 and the applicable guidelines.

(d) Review by the shorelines hearings board shall be considered an adjudicative proceeding under chapter 34.05 RCW, the Administrative Procedure Act. The aggrieved local government shall have the burden of proof in all such reviews.

(e) Whenever possible, the review by the shorelines hearings board shall be heard within the county where the land subject to the proposed master program or master program amendment is primarily located. The department and any local government aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in chapter 34.05 RCW.

((~~(4)~~)) (3) A master program amendment shall become effective after the approval of the department or after the decision of the shorelines hearings board to uphold the master program or master program amendment, provided that the board may remand the master program or master program adjustment to the local government or the department for modification prior to the final adoption of the master program or master program amendment.

NEW SECTION. Sec. 10. RCW 36.70A.330 and 1995 c 347 s 112 & 1991 sp.s. c 32 s 14 are each repealed.

NEW SECTION. Sec. 11. The code reviser shall recodify RCW 36.70A.340 to appear immediately after RCW 36.70A.345.