AN ACT
Relating to implementing the recommendations of the governor's task force on
regulatory reform on integrating growth management planning and environmental
review; amending RCW 36.70A.130, 36.70A.140, 36.70A.280, 36.70A.300,
36.70A.320, 36.70A.330, 34.05.514, 43.21C.031, 43.21C.075, 43.21C.080,
43.21C.110, 43.21C.900, 90.58.020, 90.58.030, 90.58.050, 90.58.060, 90.58.080,
90.58.090, 90.58.100, 90.58.120, 90.58.140, 90.58.180, 90.58.190, 34.05.461,
36.70A.440, 36.70A.065, 36.70A.065, 43.21C.033, 35.63.130, 35A.63.170,
36.70.970, 58.17.090, 58.17.092, 58.17.100, 58.17.330, 7.16.360, and 58.17.180;
reenacting and amending RCW 36.70A.030 and 36.70A.290; adding new sections to
chapter 36.70A RCW; adding a new section to chapter 43.21C RCW; adding a new
section to chapter 64.40 RCW; adding new sections to chapter 43.131 RCW; adding
a new section to chapter 4.84 RCW; adding new chapters to Title 36 RCW; adding
a new chapter to Title 90 RCW; adding a new chapter to Title 82 RCW; creating
new sections; recodifying RCW 36.70A.065 and 36.70A.440; repealing RCW
90.58.145, 90.62.010, 90.62.020, 90.62.030, 90.62.040, 90.62.050, 90.62.060,
90.62.070, 90.62.080, 90.62.090, 90.62.100, 90.62.110, 90.62.120, 90.62.130,
90.62.900, 90.62.901, 90.62.904, 90.62.905, 90.62.906, 90.62.907, and
90.62.908; providing effective dates; providing expiration dates; and declaring
an emergency.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
TABLE
OF CONTENTS Page #
PART I
- GROWTH MANAGEMENT ACT................................................. 2
PART II
- STATE ENVIRONMENTAL POLICY ACT....................................... 16
PART
III - SHORELINE MANAGEMENT ACT............................................ 30
PART IV
- LOCAL PERMIT PROCESS................................................. 55
PART V
- DEVELOPMENT AGREEMENTS................................................ 79
PART VI
- STATE PERMIT COORDINATION............................................ 82
PART
VII - APPEALS............................................................. 92
PART
VIII - STUDY.............................................................. 102
PART IX
- MISCELLANEOUS........................................................ 105
NEW
SECTION. Sec. 1. The
legislature recognizes by this act that the growth management act is a
fundamental building block of regulatory reform. The state and local
governments have invested considerable resources in an act that should serve as
the integrating framework for all other land-use related laws. The growth
management act provides the means to effectively combine certainty for
development decisions, reasonable environmental protection, long-range planning
for cost-effective infrastructure, and orderly growth and development.
PART I
- GROWTH MANAGEMENT ACT
NEW
SECTION. Sec. 101. The
legislature finds that during project review, a county or city planning under
RCW 36.70A.040 is likely to discover the need to make various improvements in
comprehensive plans and development regulations. There is no current
requirement or process for applicants, citizens, or agency staff to ensure that
these improvements are considered in the plan review process. The legislature
also finds that in the past environmental review and permitting of proposed
projects have been used to reopen and make land use planning decisions that
should have been made through the comprehensive planning process, in part
because agency staff and hearing examiners have not been able to ensure
consideration of all issues in the local planning process. The legislature
further finds that, while plans and regulations should be improved and refined
over time, it is unfair to penalize applicants that have submitted permit
applications that meet current requirements. It is the intent of the
legislature in enacting section 102 of this act to establish a means by which
cities and counties will docket suggested plan or development regulation
amendments and ensure their consideration during the planning process.
NEW
SECTION. Sec. 102. A new
section is added to chapter 36.70A RCW to read as follows:
(1)
Project review, which shall be conducted pursuant to the provisions of chapter
36.-- RCW (the new chapter created in section 431 of this act), shall be used
to make individual project decisions, not land use planning decisions. If,
during project review, a county or city planning under RCW 36.70A.040
identifies deficiencies in plans or regulations:
(a)
The permitting process shall not be used as a comprehensive planning process;
(b)
Project review shall continue; and
(c)
The identified deficiencies shall be docketed for possible future plan or
development regulation amendments.
(2)
Each county and city planning under RCW 36.70A.040 shall include in its
development regulations a procedure for any interested person, including
applicants, citizens, hearing examiners, and staff of other agencies, to
suggest plan or development regulation amendments. The suggested amendments
shall be docketed and considered on at least an annual basis, consistent with
the provisions of RCW 36.70A.130.
(3)
For purposes of this section, a deficiency in a comprehensive plan or
development regulation refers to the absence of required or potentially
desirable contents of a comprehensive plan or development regulation. It does
not refer to whether a development regulation addresses a project's probable
specific adverse environmental impacts which the permitting agency could
mitigate in the normal project review process.
(4)
For purposes of this section, docketing refers to compiling and maintaining a
list of suggested changes to the comprehensive plan or development regulations
in a manner that will ensure such suggested changes will be considered by the
county or city and will be available for review by the public.
Sec.
103. RCW
36.70A.030 and 1994 c 307 s 2 and 1994 c 257 s 5 are each reenacted and amended
to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Adopt a comprehensive land use plan" means to enact a new
comprehensive land use plan or to update an existing comprehensive land use
plan.
(2)
"Agricultural land" means land primarily devoted to the commercial
production of horticultural, viticultural, floricultural, dairy, apiary,
vegetable, or animal products or of berries, grain, hay, straw, turf, seed,
Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through
84.33.140, finfish in upland hatcheries, or livestock, and that has long-term
commercial significance for agricultural production.
(3)
"City" means any city or town, including a code city.
(4)
"Comprehensive land use plan," "comprehensive plan," or
"plan" means a generalized coordinated land use policy statement of
the governing body of a county or city that is adopted pursuant to this
chapter.
(5)
"Critical areas" include the following areas and ecosystems: (a)
Wetlands; (b) areas with a critical recharging effect on aquifers used for
potable water; (c) fish and wildlife habitat conservation areas; (d) frequently
flooded areas; and (e) geologically hazardous areas.
(6)
"Department" means the department of community, trade, and economic
development.
(7) ((For
purposes of RCW 36.70A.065 and 36.70A.440, "development permit
application" means any application for a development proposal for a use
that could be permitted under a plan adopted pursuant to this chapter and is
consistent with the underlying land use and zoning, including but not limited
to building permits, subdivisions, binding site plans, planned unit
developments, conditional uses or other applications pertaining to land uses,
but shall not include rezones, proposed amendments to comprehensive plans or
the adoption or amendment of development regulations.
(8)))
"Development regulations" means ((any)) the controls
placed on development or land use activities by a county or city, including,
but not limited to, zoning ordinances, critical areas ordinances, shoreline
master programs, official controls, planned unit development ordinances,
subdivision ordinances, and binding site plan ordinances together with any
amendments thereto. A development regulation does not include a decision to
approve a project permit application, as defined in section 402 of this act,
even though the decision may be expressed in a resolution or ordinance of the
legislative body of the county or city.
(((9)))
(8) "Forest land" means land primarily devoted to growing
trees for long-term commercial timber production on land that can be
economically and practically managed for such production, including Christmas
trees subject to the excise tax imposed under RCW 84.33.100 through 84.33.140,
and that has long-term commercial significance. In determining whether forest
land is primarily devoted to growing trees for long-term commercial timber
production on land that can be economically and practically managed for such
production, the following factors shall be considered: (a) The proximity of
the land to urban, suburban, and rural settlements; (b) surrounding parcel size
and the compatibility and intensity of adjacent and nearby land uses; (c)
long-term local economic conditions that affect the ability to manage for
timber production; and (d) the availability of public facilities and services
conducive to conversion of forest land to other uses.
(((10)))
(9) "Geologically hazardous areas" means areas that because
of their susceptibility to erosion, sliding, earthquake, or other geological
events, are not suited to the siting of commercial, residential, or industrial
development consistent with public health or safety concerns.
(((11)))
(10) "Long-term commercial significance" includes the growing
capacity, productivity, and soil composition of the land for long-term
commercial production, in consideration with the land's proximity to population
areas, and the possibility of more intense uses of the land.
(((12)))
(11) "Minerals" include gravel, sand, and valuable metallic
substances.
(((13)))
(12) "Public facilities" include streets, roads, highways,
sidewalks, street and road lighting systems, traffic signals, domestic water
systems, storm and sanitary sewer systems, parks and recreational facilities,
and schools.
(((14)))
(13) "Public services" include fire protection and
suppression, law enforcement, public health, education, recreation,
environmental protection, and other governmental services.
(((15)))
(14) "Urban growth" refers to growth that makes intensive use
of land for the location of buildings, structures, and impermeable surfaces to
such a degree as to be incompatible with the primary use of such land for the
production of food, other agricultural products, or fiber, or the extraction of
mineral resources. When allowed to spread over wide areas, urban growth
typically requires urban governmental services. "Characterized by urban
growth" refers to land having urban growth located on it, or to land
located in relationship to an area with urban growth on it as to be appropriate
for urban growth.
(((16)))
(15) "Urban growth areas" means those areas designated by a
county pursuant to RCW 36.70A.110.
(((17)))
(16) "Urban governmental services" include those governmental
services historically and typically delivered by cities, and include storm and
sanitary sewer systems, domestic water systems, street cleaning services, fire
and police protection services, public transit services, and other public
utilities associated with urban areas and normally not associated with nonurban
areas.
(((18)))
(17) "Wetland" or "wetlands" means areas that are
inundated or saturated by surface water or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and similar
areas. Wetlands do not include those artificial wetlands intentionally created
from nonwetland sites, including, but not limited to, irrigation and drainage
ditches, grass-lined swales, canals, detention facilities, wastewater treatment
facilities, farm ponds, and landscape amenities. ((However,)) Wetlands
may include those artificial wetlands intentionally created from nonwetland
areas created to mitigate conversion of wetlands((, if permitted by the
county or city)).
NEW
SECTION. Sec. 104. A new
section is added to chapter 36.70A RCW 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 rather than the procedures set forth in this chapter for the
adoption of a comprehensive plan or development regulations.
NEW
SECTION. Sec. 105. A new
section is added to chapter 36.70A RCW to read as follows:
(1) In
designating and protecting critical areas under this chapter, counties and
cities shall include the best available science in developing policies and
development regulations to protect the functions and values of critical areas.
In addition, counties and cities shall give special consideration to
conservation or protection measures necessary to preserve or enhance anadromous
fisheries.
(2) If
it determines that advice from scientific or other experts is necessary or will
be of substantial assistance in reaching its decision, a growth management
hearings board may retain scientific or other expert advice to assist in
reviewing a petition under RCW 36.70A.290 that involves critical areas.
Sec.
106. RCW
36.70A.130 and 1990 1st ex.s. c 17 s 13 are each amended to read as follows:
(1)
Each comprehensive land use plan and development regulations shall be subject
to continuing evaluation and review by the county or city that adopted them.
Any
amendment or revision to a comprehensive land use plan shall conform to this
chapter, and any change to development regulations shall be consistent with and
implement the comprehensive plan.
(2)(a)
Each county and city shall establish and broadly disseminate to the public a
public participation program identifying procedures whereby proposed
amendments or revisions of the comprehensive plan are considered by the
governing body of the county or city no more frequently than once every year except
that amendments may be considered more frequently under the following
circumstances:
(i)
The initial adoption of a subarea plan; and
(ii)
The adoption or amendment of a shoreline master program under the procedures
set forth in chapter 90.58 RCW.
(b)
All proposals shall be considered by the governing body concurrently so the
cumulative effect of the various proposals can be ascertained. However, after
appropriate public participation a county or city may adopt amendments or
revisions to its comprehensive plan that conform with this chapter whenever an
emergency exists or to resolve an appeal of a comprehensive plan filed with
a growth management hearings board or with the court.
(3)
Each county that designates urban growth areas under RCW 36.70A.110 shall
review, at least every ten years, its designated urban growth area or areas,
and the densities permitted within both the incorporated and unincorporated
portions of each urban growth area. In conjunction with this review by the
county, each city located within an urban growth area shall review the
densities permitted within its boundaries, and the extent to which the urban
growth occurring within the county has located within each city and the
unincorporated portions of the urban growth areas. The county comprehensive
plan designating urban growth areas, and the densities permitted in the urban
growth areas by the comprehensive plans of the county and each city located
within the urban growth areas, shall be revised to accommodate the urban growth
projected to occur in the county for the succeeding twenty-year period.
Sec.
107. RCW
36.70A.140 and 1990 1st ex.s. c 17 s 14 are each amended to read as follows:
Each
county and city that is required or chooses to plan under RCW 36.70A.040 shall
establish and broadly disseminate to the public a public participation
program identifying procedures providing for early and continuous public
participation in the development and amendment of comprehensive land use plans
and development regulations implementing such plans. The procedures shall
provide for broad dissemination of proposals and alternatives, opportunity for
written comments, public meetings after effective notice, provision for open
discussion, communication programs, information services, and consideration of
and response to public comments. In enacting legislation in response to the
board's decision pursuant to RCW 36.70A.300 declaring part or all of a
comprehensive plan or development regulation invalid, the county or city shall
provide for public participation that is appropriate and effective under the
circumstances presented by the board's order. Errors in exact compliance
with the established program and procedures shall not render the
comprehensive land use plan or development regulations invalid if the spirit of
the program and procedures is observed.
Sec.
108. RCW
36.70A.280 and 1994 c 249 s 31 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 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.
(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.
109. RCW
36.70A.290 and 1994 c 257 s 2 and 1994 c 249 s 26 are each reenacted and 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 must be filed within sixty days after publication by the legislative bodies
of the county or city.
(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, 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.
110. RCW
36.70A.300 and 1991 sp.s. c 32 s 11 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 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 ((Thurston county)) superior court as provided in RCW
34.05.514 or 36.01.050 within thirty days of the final order of the board.
Sec.
111. RCW
36.70A.320 and 1991 sp.s. c 32 s 13 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.
Sec.
112. RCW
36.70A.330 and 1991 sp.s. c 32 s 14 are each amended to read as follows:
(1)
After the time set for complying with the requirements of this chapter under
RCW 36.70A.300(1)(b) has expired, or at an earlier time upon the motion of a
county or city subject to a determination of invalidity under RCW 36.70A.300,
the board((, on its own motion or motion of the petitioner,)) shall set
a hearing for the purpose of determining whether the state agency, county, or
city is in compliance with the requirements of this chapter.
(2)
The board shall conduct a hearing and issue a finding of compliance or
noncompliance with the requirements of this chapter. A person with standing
to challenge the legislation enacted in response to the board's final order may
participate in the hearing along with the petitioner and the state agency,
city, or county. A hearing under this subsection shall be given the
highest priority of business to be conducted by the board, and a finding shall
be issued within forty-five days of the filing of the motion under subsection
(1) of this section with the board.
(3) If
the board finds that the state agency, county, or city is not in compliance,
the board shall transmit its finding to the governor. The board may recommend
to the governor that the sanctions authorized by this chapter be imposed.
(4)
The board shall also reconsider its final order and decide:
(a)
If a determination of invalidity has been made, whether such a determination
should be rescinded or modified under the standards in RCW 36.70A.300(2); or
(b)
If no determination of invalidity has been made, whether one now should be made
under the standards in RCW 36.70A.300(2).
The
board shall schedule additional hearings as appropriate pursuant to subsections
(1) and (2) of this section.
Sec.
113. RCW
34.05.514 and 1994 c 257 s 23 are each amended to read as follows:
(1) Except
as provided in subsection (2) of this section ((and RCW 36.70A.300(3))),
proceedings for review under this chapter shall be instituted by filing a
petition in the superior court, at the petitioner's option, for (a) Thurston
county, (b) the county of the petitioner's residence or principal place of
business, or (c) in any county where the property owned by the petitioner and
affected by the contested decision is located.
(2)
For proceedings involving institutions of higher education, the petition shall
be filed either in the county in which the principal office of the institution
involved is located or in the county of a branch campus if the action involves
such branch.
NEW
SECTION. Sec. 114. (1) The
legislature finds that:
(a) As
of the effective date of this section, twenty-nine counties and two hundred
eight cities are conducting comprehensive planning under the growth management
act, chapter 36.70A RCW, which together comprise over ninety percent of the
state's population;
(b)
Comprehensive plans for many of the jurisdictions were due by July 1, 1994, and
the remaining jurisdictions must complete plans under due dates ranging from
October 1994 to September 1997;
(c)
Concurrently with these comprehensive planning activities, local governments
must conduct several other planning requirements under the growth management
act, such as the adoption of capital facilities plans, urban growth areas, and
development regulations;
(d)
Local governments must also comply with the state environmental policy act,
chapter 43.21C RCW, in the development of comprehensive plans and development
regulations;
(e)
The combined activities of comprehensive planning and the state environmental
policy act present a serious fiscal burden upon local governments; and
(f)
Detailed environmental analysis integrated with comprehensive plans, subarea
plans, and development regulations will facilitate planning for and managing
growth, allow greater protection of the environment, and benefit both the
general public and private property owners.
(2) In
order to provide financial assistance to cities and counties planning under
chapter 36.70A RCW and to improve the usefulness of plans and integrated
environmental analyses, the legislature has created the fund described in
section 115 of this act.
NEW
SECTION. Sec. 115. A new
section is added to chapter 36.70A RCW to read as follows:
The
growth management planning and environmental review fund is hereby established
in the state treasury. Moneys may be placed in the fund from the proceeds of
bond sales, tax revenues, budget transfers, federal appropriations, gifts, or
any other lawful source. Moneys in the fund may be spent only after appropriation.
Moneys in the fund shall be used to make grants to local governments for the
purposes set forth in section 202 of this act, RCW 43.21C.031, or section 116
of this act.
NEW
SECTION. Sec. 116. A new
section is added to chapter 36.70A RCW to read as follows:
(1)
The department of community, trade, and economic development shall provide
management services for the fund created by section 115 of this act. The
department by rule shall establish procedures for fund management.
(2) A
grant may be awarded to a county or city that is required to or has chosen to
plan under RCW 36.70A.040 and that is qualified pursuant to this section. The
grant shall be provided to assist a county or city in paying for the cost of
preparing a detailed environmental impact statement that is integrated with a
comprehensive plan or subarea plan and development regulations.
(3) In
order to qualify for a grant, a county or city shall:
(a)
Demonstrate that it will prepare an environmental analysis pursuant to chapter
43.21C RCW that is integrated with a comprehensive plan or subarea plan and
development regulations;
(b)
Address environmental impacts and consequences, alternatives, and mitigation
measures in sufficient detail to allow the analysis to be adopted in whole or
in part by subsequent applicants for development permits within the geographic
area analyzed in the plan;
(c)
Include mechanisms in the plan to monitor the consequences of growth as it
occurs in the plan area and provide ongoing data to update the plan and
environmental analysis;
(d) Be
making substantial progress towards compliance with the requirements of this
chapter. A county or city that is more than six months out of compliance with
a requirement of this chapter is deemed not to be making substantial progress
towards compliance; and
(e)
Provide local funding, which may include financial participation by the private
sector.
(4) In
awarding grants, the department shall give preference to proposals that include
one or more of the following elements:
(a)
Financial participation by the private sector, or a public/private partnering
approach;
(b)
Comprehensive and subarea plan proposals that are designed to identify and
monitor system capacities for elements of the built environment, and to the
extent appropriate, of the natural environment;
(c)
Programs to improve the efficiency and effectiveness of the permitting process
by greater reliance on integrated plans;
(d)
Programs for effective citizen and neighborhood involvement that contribute to
greater certainty that planning decisions will be implemented; and
(e)
Plans that identify environmental impacts and establish mitigation measures
that provide effective means to satisfy concurrency requirements and establish
project consistency with the plans.
(5) If
the local funding includes funding provided by other state functional planning
programs, including open space planning and watershed or basin planning, the
functional plan shall be integrated into and be consistent with the
comprehensive plan.
PART II -
STATE ENVIRONMENTAL POLICY ACT
NEW
SECTION. Sec. 201. (1) The
legislature finds in adopting section 202 of this act that:
(a)
Comprehensive plans and development regulations adopted by counties, cities,
and towns under chapter 36.70A RCW and environmental laws and rules adopted by
the state and federal government have addressed a wide range of environmental
subjects and impacts. These plans, regulations, rules, and laws often provide
environmental analysis and mitigation measures for project actions without the
need for an environmental impact statement or further project mitigation.
(b)
Existing plans, regulations, rules, or laws provide environmental analysis and
measures that avoid or otherwise mitigate the probable specific adverse
environmental impacts of proposed projects should be integrated with, and
should not be duplicated by, environmental review under chapter 43.21C RCW.
(c)
Proposed projects should continue to receive environmental review, which should
be conducted in a manner that is integrated with and does not duplicate other
requirements. Project-level environmental review should be used to: (i)
Review and document consistency with comprehensive plans and development
regulations; (ii) provide prompt and coordinated review by government agencies
and the public on compliance with applicable environmental laws and plans,
including mitigation for specific project impacts that have not been considered
and addressed at the plan or development regulation level; and (iii) ensure
accountability by local government to applicants and the public for requiring
and implementing mitigation measures.
(d)
When a project permit application is filed, an agency should analyze the
proposal's environmental impacts, as required by applicable regulations and the
environmental review process required by this chapter, in one project review
process. The project review process should include land use, environmental,
public, and governmental review, as provided by the applicable regulations and
the rules adopted under this chapter, so that documents prepared under
different requirements can be reviewed together by the public and other
agencies. This project review will provide an agency with the information
necessary to make a decision on the proposed project.
(e)
Through this project review process: (i) If the applicable regulations require
studies that adequately analyze all of the project's specific probable adverse
environmental impacts, additional studies under this chapter will not be
necessary on those impacts; (ii) if the applicable regulations require measures
that adequately address such environmental impacts, additional measures would
likewise not be required under this chapter; and (iii) if the applicable
regulations do not adequately analyze or address a proposal's specific probable
adverse environmental impacts, this chapter provides the authority and
procedures for additional review.
(2)
The legislature intends that a primary role of environmental review under
chapter 43.21C RCW is to focus on the gaps and overlaps that may exist in
applicable laws and requirements related to a proposed action. The review of
project actions conducted by counties, cities, and towns planning under RCW
36.70A.040 should integrate environmental review with project review. Chapter
43.21C RCW should not be used as a substitute for other land use planning and
environmental requirements.
NEW
SECTION. Sec. 202. A new
section is added to chapter 43.21C RCW to read as follows:
(1) If
the requirements of subsection (2) of this section are satisfied, a county,
city, or town reviewing a project action may determine that the requirements
for environmental analysis, protection, and mitigation measures in the county,
city, or town's development regulations and comprehensive plans adopted under
chapter 36.70A RCW, and in other applicable local, state, or federal laws and
rules provide adequate analysis of and mitigation for the specific adverse
environmental impacts of the project action to which the requirements apply.
(2) A
county, city, or town may make the determination provided for in subsection (1)
of this section if:
(a) In
the course of project review, including any required environmental analysis,
the local government considers the specific probable adverse environmental
impacts of the proposed action and determines that these specific impacts are
adequately addressed by the development regulations or other applicable
requirements of the comprehensive plan, subarea plan element of the
comprehensive plan, or other local, state, or federal rules or laws; and
(b)
The local government bases or conditions its approval on compliance with these
requirements or mitigation measures.
(3) If
a county, city, or town's comprehensive plans, subarea plans, and development
regulations adequately address a project's probable specific adverse
environmental impacts, as determined under subsections (1) and (2) of this
section, the county, city, or town shall not impose additional mitigation under
this chapter during project review. Project review shall be integrated with
environmental analysis under this chapter.
(4) A
comprehensive plan, subarea plan, or development regulation shall be considered
to adequately address an impact if the county, city, or town, through the
planning and environmental review process under chapter 36.70A RCW and this
chapter, has identified the specific adverse environmental impacts and:
(a)
The impacts have been avoided or otherwise mitigated; or
(b)
The legislative body of the county, city, or town has designated as acceptable
certain levels of service, land use designations, development standards, or
other land use planning required or allowed by chapter 36.70A RCW.
(5) In
deciding whether a specific adverse environmental impact has been addressed by
an existing rule or law of another agency with jurisdiction with environmental
expertise with regard to a specific environmental impact, the county, city, or
town shall consult orally or in writing with that agency and may expressly
defer to that agency. In making this deferral, the county, city, or town shall
base or condition its project approval on compliance with these other existing
rules or laws.
(6)
Nothing in this section limits the authority of an agency in its review or
mitigation of a project to adopt or otherwise rely on environmental analyses
and requirements under other laws, as provided by this chapter.
(7)
This section shall apply only to a county, city, or town planning under RCW
36.70A.040.
Sec.
203. RCW
43.21C.031 and 1983 c 117 s 1 are each amended to read as follows:
(1)
An environmental impact statement (the detailed statement required by RCW
43.21C.030(2)(c)) shall be prepared on proposals for legislation and other major
actions having a probable significant, adverse environmental impact. The
environmental impact statement may be combined with the recommendation or
report on the proposal or issued as a separate document. The substantive
decisions or recommendations shall be clearly identifiable in the combined
document. Actions categorically exempt under RCW 43.21C.110(1)(a) do not
require environmental review or the preparation of an environmental impact
statement under this chapter. In a county, city, or town planning under RCW
36.70A.040, a planned action, as provided for in subsection (2) of this
section, does not require a threshold determination or the preparation of an
environmental impact statement under this chapter, but is subject to
environmental review and mitigation as provided in this chapter.
An
environmental impact statement is required to analyze only those probable
adverse environmental impacts which are significant. Beneficial environmental
impacts may be discussed. The responsible official shall consult with agencies
and the public to identify such impacts and limit the scope of an environmental
impact statement. The subjects listed in RCW 43.21C.030(2)(c) need not be
treated as separate sections of an environmental impact statement. Discussions
of significant short-term and long-term environmental impacts, significant
irrevocable commitments of natural resources, significant alternatives
including mitigation measures, and significant environmental impacts which
cannot be mitigated should be consolidated or included, as applicable, in those
sections of an environmental impact statement where the responsible official
decides they logically belong.
(2)(a)
For purposes of this section, a planned action means one or more types of
project action that:
(i)
Are designated planned actions by an ordinance or resolution adopted by a
county, city, or town planning under RCW 36.70A.040;
(ii)
Have had the significant impacts adequately addressed in an environmental
impact statement prepared in conjunction with (A) a comprehensive plan or
subarea plan adopted under chapter 36.70A RCW, or (B) a fully contained
community, a master planned resort, a master planned development, or a phased
project;
(iii)
Are subsequent or implementing projects for the proposals listed in (a)(ii) of
this subsection;
(iv)
Are located within an urban growth area, as defined in RCW 36.70A.030;
(v)
Are not essential public facilities, as defined in RCW 36.70A.200; and
(vi)
Are consistent with a comprehensive plan adopted under chapter 36.70A RCW.
(b)
A county, city, or town shall limit planned actions to certain types of
development or to specific geographical areas that are less extensive than the
jurisdictional boundaries of the county, city, or town and may limit a planned
action to a time period identified in the environmental impact statement or the
ordinance or resolution adopted under this subsection.
Sec.
204. RCW
43.21C.075 and 1994 c 253 s 4 are each amended to read as follows:
(1)
Because a major purpose of this chapter is to combine environmental
considerations with public decisions, any appeal brought under this chapter
shall be linked to a specific governmental action. The State Environmental
Policy Act provides a basis for challenging whether governmental action is in
compliance with the substantive and procedural provisions of this chapter. The
State Environmental Policy Act is not intended to create a cause of action
unrelated to a specific governmental action.
(2)
Unless otherwise provided by this section:
(a)
Appeals under this chapter shall be of the governmental action together with
its accompanying environmental determinations.
(b)
Appeals of environmental determinations made (or lacking) under this chapter
shall be commenced within the time required to appeal the governmental action
which is subject to environmental review.
(3) If
an agency has a procedure for appeals of agency environmental determinations
made under this chapter, such procedure:
(a)
Shall not allow more than one agency appeal proceeding on a procedural
determination (the adequacy of a determination of significance/nonsignificance
or of a final environmental impact statement)((, consistent with any state
statutory requirements for appeals to local legislative bodies)). The
appeal proceeding on a determination of significance((/nonsignificance))
may occur before the agency's final decision on a proposed action. The
appeal proceeding on a determination of nonsignificance may occur before the
agency's final decision on a proposed action only if the appeal is heard at a
proceeding where the hearing body or officer will render a final recommendation
or decision on the proposed underlying governmental action. Such ((an))
appeals shall also be allowed for a determination of
significance/nonsignificance which may be issued by the agency after
supplemental review;
(b)
Shall consolidate an appeal of procedural issues and of substantive
determinations made under this chapter (such as a decision to require
particular mitigation measures or to deny a proposal) with a hearing or
appeal on the underlying governmental action by providing for a single
simultaneous ((appeal of an)) hearing before one hearing officer or
body to consider the agency decision on a proposal and any environmental
determinations made under this chapter, with the exception of the ((threshold
determination)) appeal, if any, of a determination of significance
as provided in (a) of this subsection or an appeal to the local legislative
authority under RCW 43.21C.060 or other applicable state statutes;
(c)
Shall provide for the preparation of a record for use in any subsequent appeal
proceedings, and shall provide for any subsequent appeal proceedings to be
conducted on the record, consistent with other applicable law. An adequate
record consists of findings and conclusions, testimony under oath, and taped or
written transcript. An electronically recorded transcript will suffice for
purposes of review under this subsection; and
(d)
Shall provide that procedural determinations made by the responsible official
shall be entitled to substantial weight.
(4) If
a person aggrieved by an agency action has the right to judicial appeal and if
an agency has an appeal procedure, such person shall, prior to seeking any judicial
review, use such agency procedure if any such procedure is available,
unless expressly provided otherwise by state statute.
(5) ((RCW
43.21C.080 establishes an optional "notice of action" procedure
which, if used, imposes a time period for appealing decisions under this
chapter.)) Some statutes and ordinances contain time periods for
challenging governmental actions which are subject to review under this
chapter, such as various local land use approvals (the "underlying
governmental action"). RCW 43.21C.080 establishes an optional
"notice of action" procedure which, if used, imposes a time period
for appealing decisions under this chapter. This ((section)) subsection
does not modify any such time periods. ((This section governs when a
judicial appeal must be brought under this chapter where a "notice of
action" is used, and/or where there is another time period which is
required by statute or ordinance for challenging the underlying governmental
action.)) In this subsection, the term "appeal" refers to a
judicial appeal only.
(a) If
there is a time period for appealing the underlying governmental action,
appeals under this chapter shall be commenced within ((thirty days)) such
time period. The agency shall give official notice stating the date and place
for commencing an appeal. ((If there is an agency proceeding under
subsection (3) of this section, the appellant shall, prior to commencing a
judicial appeal, submit to the responsible official a notice of intent to
commence a judicial appeal. This notice of intent shall be given within the
time period for commencing a judicial appeal on the underlying governmental
action.))
(b) If
there is no time period for appealing the underlying governmental action, and a
notice of action under RCW 43.21C.080 ((may be used. If a notice of action))
is used, ((judicial)) appeals shall be commenced within the time period
specified by RCW 43.21C.080((, unless there is a time period for appealing
the underlying governmental action in which case (a) of this subsection shall
apply.
(c)
Notwithstanding RCW 43.21C.080(1), if there is a time period for appealing the
underlying governmental action, a notice of action may be published within such
time period)).
(6)(a)
Judicial review under subsection (5) of this section of an appeal
decision made by an agency under ((RCW 43.21C.075(5))) subsection (3)
of this section shall be on the record, consistent with other applicable
law.
(b) A
taped or written transcript may be used. If a taped transcript is to be
reviewed, a record shall identify the location on the taped transcript of
testimony and evidence to be reviewed. Parties are encouraged to designate
only those portions of the testimony necessary to present the issues raised on
review, but if a party alleges that a finding of fact is not supported by
evidence, the party should include in the record all evidence relevant to the
disputed finding. Any other party may designate additional portions of the
taped transcript relating to issues raised on review. A party may provide a
written transcript of portions of the testimony at the party's own expense or
apply to that court for an order requiring the party seeking review to pay for
additional portions of the written transcript.
(c)
Judicial review under this chapter shall without exception be of the
governmental action together with its accompanying environmental
determinations.
(7)
Jurisdiction over the review of determinations under this chapter in an appeal
before an agency or superior court shall upon consent of the parties be
transferred in whole or part to the shorelines hearings board. The shorelines
hearings board shall hear the matter and sign the final order expeditiously.
The superior court shall certify the final order of the shorelines hearings
board and said certified final order may only be appealed to an appellate
court. In the case of an appeal under this chapter regarding a project or
other matter that is also the subject of an appeal to the shorelines hearings
board under chapter 90.58 RCW, the shorelines hearings board shall have sole
jurisdiction over both the appeal under this section and the appeal under
chapter 90.58 RCW, shall consider them together, and shall issue a final order within
one hundred eighty days as provided in RCW 90.58.180.
(8) For
purposes of this section and RCW 43.21C.080, the words "action",
"decision", and "determination" mean substantive agency
action including any accompanying procedural determinations under this chapter
(except where the word "action" means "appeal" in RCW 43.21C.080(2)
((and (3)))). The word "action" in this section and RCW
43.21C.080 does not mean a procedural determination by itself made under this
chapter. The word "determination" includes any environmental
document required by this chapter and state or local implementing rules. The
word "agency" refers to any state or local unit of government. Except
as provided in subsection (5) of this section, the word "appeal"
refers to administrative, legislative, or judicial appeals.
(9)
The court in its discretion may award reasonable attorney's fees of up to one
thousand dollars in the aggregate to the prevailing party, including a
governmental agency, on issues arising out of this chapter if the court makes
specific findings that the legal position of a party is frivolous and without
reasonable basis.
Sec.
205. RCW
43.21C.080 and 1977 ex.s. c 278 s 1 are each amended to read as follows:
(1)
Notice of any action taken by a governmental agency may be publicized by the
acting governmental agency, the applicant for, or the proponent of such action,
in substantially the form as set forth in ((subsection (3) of this section
and in the following manner)) rules adopted under RCW 43.21C.110:
(a) By
publishing notice on the same day of each week for two consecutive weeks in a
legal newspaper of general circulation in the area where the property which is
the subject of the action is located;
(b) By
filing notice of such action with the department of ecology at its main office
in Olympia prior to the date of the last newspaper publication; and
(c)
Except for those actions which are of a nonproject nature, by one of the
following methods which shall be accomplished prior to the date of ((last))
first newspaper publication;
(i)
Mailing to the latest recorded real property owners, as shown by the records of
the county treasurer, who share a common boundary line with the property upon
which the project is proposed through United States mail, first class, postage
prepaid.
(ii)
Posting of the notice in a conspicuous manner on the property upon which the
project is to be constructed.
(2)(a)
Except as otherwise provided in RCW 43.21C.075(5)(a), any action to set
aside, enjoin, review, or otherwise challenge any such governmental action or
subsequent governmental action for which notice is given as provided in
subsection (1) of this section on grounds of noncompliance with the provisions
of this chapter shall be commenced within ((thirty)) twenty-one
days from the date of last newspaper publication of the notice pursuant to
subsection (1) of this section, or be barred((: PROVIDED, HOWEVER, That the
time period within which an action shall be commenced shall be ninety days (i)
for projects to be performed by a governmental agency or to be performed under
government contract, or (ii) for thermal power plant projects: PROVIDED
FURTHER, That)).
(b)
Any subsequent governmental action on the proposal for which notice has
been given as provided in subsection (1) of this section shall not be set
aside, enjoined, reviewed, or otherwise challenged on grounds of noncompliance
with the provisions of RCW 43.21C.030(2)(a) through (h) unless there has been a
substantial change in the proposal between the time of the first governmental
action and the subsequent governmental action that is likely to have adverse
environmental impacts beyond the range of impacts previously analyzed, or
unless the action now being considered was identified in an earlier detailed
statement or declaration of nonsignificance as being one which would require
further environmental evaluation.
(((b)
Any action to challenge a subsequent governmental action based upon any
provisions of this chapter shall be commenced within thirty days from the date
of last newspaper publication of the subsequent governmental action except (i)
for projects to be performed by a governmental agency or to be performed under
governmental contract, or (ii) for thermal power plant projects which shall be
challenged within ninety days from the date of last newspaper publication of
the subsequent governmental action, or be barred.
(3)
The form for such notice of action shall be issued by the department of ecology
and shall be made available by the governmental agency taking an action subject
to being publicized pursuant to this section, by the county auditor, and/or the
city clerk to the project applicant or proposer. The form of such notice shall
be substantially as follows:
NOTICE OF ACTION BY
. . . . . . . . . . . . . . . .
(Government agency or entity)
Pursuant
to the provisions of chapter 43.21C RCW, notice is hereby given that:
The
. . . . . . . . . (Government agency or
entity) did on . . . . . . (date), take the action
described below.
Any
action to set aside, enjoin, review, or otherwise challenge such action on the
grounds of noncompliance with the provisions of chapter 43.21C RCW (State
Environmental Policy Act) shall be commenced within . . . . days
or be barred.
The
action taken by . . . . . . . . .
(Government agency or entity), notice of which is hereby given, was as follows:
(1)
. . . . . . . . . (Here insert
description of action taken such as: Adoption Ordinance No.
. . . .; Issued Building Permit; Approved preliminary (or final)
plat, etc.)
(2)
. . . . . . . . . (Here insert brief
description of the complete project or proposal.)
(3) Said action pertained to property commonly known as:
..................................................................................
..................................................................................
..................................................................................
..................................................................................
(Sufficient
description to locate property, but complete legal description not required)
(4)
Pertinent documents may be examined during regular business hours at the office
of: . . . . . . located at:
..................................................................................
(Location,
including room number)
..................................................................................
(Name of
government agency, proponent, or applicant giving notice)
Filed by .........................................................................
(Signature
of individual and capacity in which such individual is signing)))
Sec.
206. RCW
43.21C.110 and 1983 c 117 s 7 are each amended to read as follows:
It shall
be the duty and function of the department of ecology((, which may utilize
proposed rules developed by the environmental policy commission)):
(1) To
adopt and amend thereafter rules of interpretation and implementation of this
chapter (((the state environmental policy act of 1971))), subject to the
requirements of chapter 34.05 RCW, for the purpose of providing uniform rules
and guidelines to all branches of government including state agencies,
political subdivisions, public and municipal corporations, and counties. The
proposed rules shall be subject to full public hearings requirements associated
with rule promulgation. Suggestions for modifications of the proposed rules
shall be considered on their merits, and the department shall have the
authority and responsibility for full and appropriate independent promulgation
and adoption of rules, assuring consistency with this chapter as amended and
with the preservation of protections afforded by this chapter. The rule making
powers authorized in this section shall include, but shall not be limited to,
the following phases of interpretation and implementation of this chapter (((the
state environmental policy act of 1971))):
(a)
Categories of governmental actions which are not to be considered as potential
major actions significantly affecting the quality of the environment, including
categories pertaining to applications for water right permits pursuant to
chapters 90.03 and 90.44 RCW. The types of actions included as categorical
exemptions in the rules shall be limited to those types which are not major
actions significantly affecting the quality of the environment. The rules
shall provide for certain circumstances where actions which potentially are
categorically exempt require environmental review. An action that is
categorically exempt under the rules adopted by the department may not be
conditioned or denied under this chapter.
(b)
Rules for criteria and procedures applicable to the determination of when an
act of a branch of government is a major action significantly affecting the
quality of the environment for which a detailed statement is required to be
prepared pursuant to RCW 43.21C.030.
(c)
Rules and procedures applicable to the preparation of detailed statements and
other environmental documents, including but not limited to rules for timing of
environmental review, obtaining comments, data and other information, and
providing for and determining areas of public participation which shall include
the scope and review of draft environmental impact statements.
(d)
Scope of coverage and contents of detailed statements assuring that such
statements are simple, uniform, and as short as practicable; statements are
required to analyze only reasonable alternatives and probable adverse environmental
impacts which are significant, and may analyze beneficial impacts.
(e)
Rules and procedures for public notification of actions taken and documents
prepared.
(f)
Definition of terms relevant to the implementation of this chapter including
the establishment of a list of elements of the environment. Analysis of
environmental considerations under RCW 43.21C.030(2) may be required only for
those subjects listed as elements of the environment (or portions thereof).
The list of elements of the environment shall consist of the
"natural" and "built" environment. The elements of the
built environment shall consist of public services and utilities (such as
water, sewer, schools, fire and police protection), transportation, environmental
health (such as explosive materials and toxic waste), and land and shoreline
use (including housing, and a description of the relationships with land use
and shoreline plans and designations, including population).
(g)
Rules for determining the obligations and powers under this chapter of two or
more branches of government involved in the same project significantly
affecting the quality of the environment.
(h)
Methods to assure adequate public awareness of the preparation and issuance of
detailed statements required by RCW 43.21C.030(2)(c).
(i) To
prepare rules for projects setting forth the time limits within which the
governmental entity responsible for the action shall comply with the provisions
of this chapter.
(j)
Rules for utilization of a detailed statement for more than one action and
rules improving environmental analysis of nonproject proposals and encouraging
better interagency coordination and integration between this chapter and other
environmental laws.
(k)
Rules relating to actions which shall be exempt from the provisions of this
chapter in situations of emergency.
(l)
Rules relating to the use of environmental documents in planning and decision
making and the implementation of the substantive policies and requirements of
this chapter, including procedures for appeals under this chapter.
(m)
Rules and procedures that provide for the integration of environmental review
with project review as provided in section 202 of this act. The rules and
procedures shall be jointly developed with the department of community, trade,
and economic development and shall be applicable to the preparation of
environmental documents for actions in counties, cities, and towns planning
under RCW 36.70A.040. The rules and procedures shall also include criteria to
analyze the consistency of project actions, including planned actions under RCW
43.21C.031(2), with development regulations adopted under chapter 36.70A RCW,
or in the absence of applicable development regulations, the appropriate
elements of a comprehensive plan or subarea plan adopted under chapter 36.70A
RCW. Ordinances or procedures adopted by a county, city, or town to implement
the provisions of section 202 of this act prior to the effective date of rules
adopted under this subsection (1)(m) shall continue to be effective until the
adoption of any new or revised ordinances or procedures that may be required.
If any revisions are required as a result of rules adopted under this
subsection (1)(m), those revisions shall be made within the time limits
specified in RCW 43.21C.120.
(2) In
exercising its powers, functions, and duties under this section, the department
may:
(a)
Consult with the state agencies and with representatives of science, industry,
agriculture, labor, conservation organizations, state and local governments and
other groups, as it deems advisable; and
(b)
Utilize, to the fullest extent possible, the services, facilities, and
information (including statistical information) of public and private agencies,
organizations, and individuals, in order to avoid duplication of effort and
expense, overlap, or conflict with similar activities authorized by law and
performed by established agencies.
(3)
Rules adopted pursuant to this section shall be subject to the review
procedures of chapter 34.05 RCW ((34.05.538 and 34.05.240)).
Sec.
207. RCW
43.21C.900 and 1971 ex.s. c 109 s 7 are each amended to read as follows:
This
chapter shall be known and may be cited as the "State Environmental Policy
Act ((of 1971))" or "SEPA".
PART III
- SHORELINE MANAGEMENT ACT
Sec.
301. RCW
90.58.020 and 1992 c 105 s 1 are each amended to read as follows:
The
legislature finds that the shorelines of the state are among the most valuable
and fragile of its natural resources and that there is great concern throughout
the state relating to their utilization, protection, restoration, and
preservation. In addition it finds that ever increasing pressures of additional
uses are being placed on the shorelines necessitating increased coordination in
the management and development of the shorelines of the state. The legislature
further finds that much of the shorelines of the state and the uplands adjacent
thereto are in private ownership; that unrestricted construction on the
privately owned or publicly owned shorelines of the state is not in the best
public interest; and therefore, coordinated planning is necessary in order to
protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent
with the public interest. There is, therefor, a clear and urgent demand for a
planned, rational, and concerted effort, jointly performed by federal, state,
and local governments, to prevent the inherent harm in an uncoordinated and
piecemeal development of the state's shorelines.
It is
the policy of the state to provide for the management of the shorelines of the
state by planning for and fostering all reasonable and appropriate uses. This
policy is designed to insure the development of these shorelines in a manner
which, while allowing for limited reduction of rights of the public in the
navigable waters, will promote and enhance the public interest. This policy
contemplates protecting against adverse effects to the public health, the land
and its vegetation and wildlife, and the waters of the state and their aquatic
life, while protecting generally public rights of navigation and corollary
rights incidental thereto.
The
legislature declares that the interest of all of the people shall be paramount
in the management of shorelines of state-wide significance. The department, in
adopting guidelines for shorelines of state-wide significance, and local
government, in developing master programs for shorelines of state-wide
significance, shall give preference to uses in the following order of
preference which:
(1)
Recognize and protect the state-wide interest over local interest;
(2)
Preserve the natural character of the shoreline;
(3)
Result in long term over short term benefit;
(4)
Protect the resources and ecology of the shoreline;
(5)
Increase public access to publicly owned areas of the shorelines;
(6)
Increase recreational opportunities for the public in the shoreline;
(7)
Provide for any other element as defined in RCW 90.58.100 deemed appropriate or
necessary.
In the
implementation of this policy the public's opportunity to enjoy the physical
and aesthetic qualities of natural shorelines of the state shall be preserved
to the greatest extent feasible consistent with the overall best interest of
the state and the people generally. To this end uses shall be preferred which
are consistent with control of pollution and prevention of damage to the
natural environment, or are unique to or dependent upon use of the state's
shoreline. Alterations of the natural condition of the shorelines of the
state, in those limited instances when authorized, shall be given priority for
single family residences and their appurtenant structures, ports, shoreline
recreational uses including but not limited to parks, marinas, piers, and other
improvements facilitating public access to shorelines of the state, industrial
and commercial developments which are particularly dependent on their location
on or use of the shorelines of the state and other development that will
provide an opportunity for substantial numbers of the people to enjoy the
shorelines of the state. Alterations of the natural condition of the
shorelines and ((wetlands)) shorelands of the state shall be
recognized by the department. Shorelines and ((wetlands)) shorelands
of the state shall be appropriately classified and these classifications shall
be revised when circumstances warrant regardless of whether the change in
circumstances occurs through man-made causes or natural causes. Any areas
resulting from alterations of the natural condition of the shorelines and ((wetlands))
shorelands of the state no longer meeting the definition of "shorelines
of the state" shall not be subject to the provisions of chapter 90.58 RCW.
Permitted
uses in the shorelines of the state shall be designed and conducted in a manner
to minimize, insofar as practical, any resultant damage to the ecology and environment
of the shoreline area and any interference with the public's use of the water.
Sec.
302. RCW
90.58.030 and 1987 c 474 s 1 are each amended to read as follows:
As
used in this chapter, unless the context otherwise requires, the following
definitions and concepts apply:
(1)
Administration:
(a)
"Department" means the department of ecology;
(b)
"Director" means the director of the department of ecology;
(c)
"Local government" means any county, incorporated city, or town which
contains within its boundaries any lands or waters subject to this chapter;
(d)
"Person" means an individual, partnership, corporation, association,
organization, cooperative, public or municipal corporation, or agency of the
state or local governmental unit however designated;
(e)
"Hearing board" means the shoreline hearings board established by
this chapter.
(2)
Geographical:
(a)
"Extreme low tide" means the lowest line on the land reached by a
receding tide;
(b)
"Ordinary high water mark" on all lakes, streams, and tidal water is
that mark that will be found by examining the bed and banks and ascertaining
where the presence and action of waters are so common and usual, and so long
continued in all ordinary years, as to mark upon the soil a character distinct
from that of the abutting upland, in respect to vegetation as that condition
exists on June 1, 1971, as it may naturally change thereafter, or as it may
change thereafter in accordance with permits issued by a local government or
the department: PROVIDED, That in any area where the ordinary high water mark
cannot be found, the ordinary high water mark adjoining salt water shall be the
line of mean higher high tide and the ordinary high water mark adjoining fresh
water shall be the line of mean high water;
(c)
"Shorelines of the state" are the total of all "shorelines"
and "shorelines of state-wide significance" within the state;
(d)
"Shorelines" means all of the water areas of the state, including
reservoirs, and their associated ((wetlands)) shorelands,
together with the lands underlying them; except (i) shorelines of state-wide
significance; (ii) shorelines on segments of streams upstream of a point where
the mean annual flow is twenty cubic feet per second or less and the wetlands
associated with such upstream segments; and (iii) shorelines on lakes less than
twenty acres in size and wetlands associated with such small lakes;
(e)
"Shorelines of state-wide significance" means the following
shorelines of the state:
(i)
The area between the ordinary high water mark and the western boundary of the
state from Cape Disappointment on the south to Cape Flattery on the north,
including harbors, bays, estuaries, and inlets;
(ii) Those
areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca
between the ordinary high water mark and the line of extreme low tide as
follows:
(A)
Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,
(B)
Birch Bay‑-from Point Whitehorn to Birch Point,
(C)
Hood Canal‑-from Tala Point to Foulweather Bluff,
(D)
Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and
(E)
Padilla Bay‑-from March Point to William Point;
(iii)
Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt
waters north to the Canadian line and lying seaward from the line of extreme
low tide;
(iv)
Those lakes, whether natural, artificial, or a combination thereof, with a
surface acreage of one thousand acres or more measured at the ordinary high
water mark;
(v)
Those natural rivers or segments thereof as follows:
(A)
Any west of the crest of the Cascade range downstream of a point where the mean
annual flow is measured at one thousand cubic feet per second or more,
(B)
Any east of the crest of the Cascade range downstream of a point where the
annual flow is measured at two hundred cubic feet per second or more, or those
portions of rivers east of the crest of the Cascade range downstream from the
first three hundred square miles of drainage area, whichever is longer;
(vi)
Those ((wetlands)) shorelands associated with (i), (ii), (iv),
and (v) of this subsection (2)(e);
(f)
"((Wetlands)) Shorelands" or "((wetland)) shoreland
areas" means those lands extending landward for two hundred feet in all
directions as measured on a horizontal plane from the ordinary high water mark;
floodways and contiguous floodplain areas landward two hundred feet from such
floodways; and all ((marshes, bogs, swamps,)) wetlands and river
deltas associated with the streams, lakes, and tidal waters which are subject
to the provisions of this chapter; the same to be designated as to location by
the department of ecology((: PROVIDED, That)). Any county or
city may determine that portion of a one-hundred-year-flood plain to be
included in its master program as long as such portion includes, as a minimum,
the floodway and the adjacent land extending landward two hundred feet
therefrom;
(g)
"Floodway" means those portions of the area of a river valley lying
streamward from the outer limits of a watercourse upon which flood waters are
carried during periods of flooding that occur with reasonable regularity,
although not necessarily annually, said floodway being identified, under normal
condition, by changes in surface soil conditions or changes in types or quality
of vegetative ground cover condition. The floodway shall not include those
lands that can reasonably be expected to be protected from flood waters by
flood control devices maintained by or maintained under license from the
federal government, the state, or a political subdivision of the state;
(h)
"Wetlands" means areas that are inundated or saturated by surface
water or ground water at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar areas. Wetlands do not include
those artificial wetlands intentionally created from nonwetland sites,
including, but not limited to, irrigation and drainage ditches, grass-lined
swales, canals, detention facilities, wastewater treatment facilities, farm
ponds, and landscape amenities. Wetlands may include those artificial wetlands
intentionally created from nonwetland areas to mitigate the conversion of
wetlands.
(3)
Procedural terms:
(a)
"Guidelines" means those standards adopted to implement the policy of
this chapter for regulation of use of the shorelines of the state prior to
adoption of master programs. Such standards shall also provide criteria to
local governments and the department in developing master programs;
(b)
"Master program" shall mean the comprehensive use plan for a
described area, and the use regulations together with maps, diagrams, charts,
or other descriptive material and text, a statement of desired goals, and
standards developed in accordance with the policies enunciated in RCW
90.58.020;
(c)
"State master program" is the cumulative total of all master programs
approved or adopted by the department of ecology;
(d)
"Development" means a use consisting of the construction or exterior
alteration of structures; dredging; drilling; dumping; filling; removal of any
sand, gravel, or minerals; bulkheading; driving of piling; placing of
obstructions; or any project of a permanent or temporary nature which interferes
with the normal public use of the surface of the waters overlying lands subject
to this chapter at any state of water level;
(e)
"Substantial development" shall mean any development of which the
total cost or fair market value exceeds two thousand five hundred dollars, or
any development which materially interferes with the normal public use of the
water or shorelines of the state; except that the following shall not be
considered substantial developments for the purpose of this chapter:
(i)
Normal maintenance or repair of existing structures or developments, including
damage by accident, fire, or elements;
(ii)
Construction of the normal protective bulkhead common to single family
residences;
(iii)
Emergency construction necessary to protect property from damage by the
elements;
(iv)
Construction and practices normal or necessary for farming, irrigation, and
ranching activities, including agricultural service roads and utilities on ((wetlands))
shorelands, and the construction and maintenance of irrigation
structures including but not limited to head gates, pumping facilities, and
irrigation channels((: PROVIDED, That)). A feedlot of any size,
all processing plants, other activities of a commercial nature, alteration of
the contour of the ((wetlands)) shorelands by leveling or filling
other than that which results from normal cultivation, shall not be considered
normal or necessary farming or ranching activities. A feedlot shall be an
enclosure or facility used or capable of being used for feeding livestock hay,
grain, silage, or other livestock feed, but shall not include land for growing
crops or vegetation for livestock feeding and/or grazing, nor shall it include
normal livestock wintering operations;
(v)
Construction or modification of navigational aids such as channel markers and
anchor buoys;
(vi)
Construction on ((wetlands)) shorelands by an owner, lessee, or
contract purchaser of a single family residence for his own use or for the use
of his family, which residence does not exceed a height of thirty-five feet
above average grade level and which meets all requirements of the state agency
or local government having jurisdiction thereof, other than requirements
imposed pursuant to this chapter;
(vii)
Construction of a dock, including a community dock, designed for pleasure craft
only, for the private noncommercial use of the owner, lessee, or contract
purchaser of single and multiple family residences, the cost of which does not
exceed two thousand five hundred dollars;
(viii)
Operation, maintenance, or construction of canals, waterways, drains,
reservoirs, or other facilities that now exist or are hereafter created or
developed as a part of an irrigation system for the primary purpose of making
use of system waters, including return flow and artificially stored ground
water for the irrigation of lands;
(ix)
The marking of property lines or corners on state owned lands, when such
marking does not significantly interfere with normal public use of the surface
of the water;
(x)
Operation and maintenance of any system of dikes, ditches, drains, or other
facilities existing on September 8, 1975, which were created, developed, or
utilized primarily as a part of an agricultural drainage or diking system((;
(xi)
Any action commenced prior to December 31, 1982, pertaining to (A) the
restoration of interim transportation services as may be necessary as a
consequence of the destruction of the Hood Canal bridge, including, but not
limited to, improvements to highways, development of park and ride facilities,
and development of ferry terminal facilities until a new or reconstructed Hood
Canal bridge is open to traffic; and (B) the reconstruction of a permanent
bridge at the site of the original Hood Canal bridge)).
Sec.
303. RCW
90.58.050 and 1971 ex.s. c 286 s 5 are each amended to read as follows:
This
chapter establishes a cooperative program of shoreline management between local
government and the state. Local government shall have the primary
responsibility for initiating the planning required by this chapter and
administering the regulatory program consistent with the policy and
provisions of this chapter. The department shall act primarily in a
supportive and review capacity with ((primary)) an emphasis on
providing assistance to local government and on insuring compliance with
the policy and provisions of this chapter.
Sec.
304. RCW
90.58.060 and 1971 ex.s. c 286 s 6 are each amended to read as follows:
(1) ((Within
one hundred twenty days from June 1, 1971,)) The department shall ((submit
to local governments proposed)) periodically review and adopt
guidelines consistent with RCW 90.58.020, containing the elements specified
in RCW 90.58.100 for:
(a)
Development of master programs for regulation of the uses of shorelines; and
(b)
Development of master programs for regulation of the uses of shorelines of
state-wide significance.
(2) Before
adopting or amending guidelines under this section, the department shall
provide an opportunity for public review and comment as follows:
(a)
The department shall mail copies of the proposal to all cities, counties, and
federally recognized Indian tribes, and to any other person who has requested a
copy, and shall publish the proposed guidelines in the Washington state
register. Comments shall be submitted in writing to the department within
sixty days from ((receipt of such proposed guidelines, local governments
shall submit to the department in writing proposed changes, if any, and
comments upon the proposed guidelines.
(3)
Thereafter and within one hundred twenty days from the submission of such
proposed guidelines to local governments, the department, after review and
consideration of the comments and suggestions submitted to it, shall resubmit
final proposed guidelines.
(4)
Within sixty days thereafter public hearings shall be held by)) the
date the proposal has been published in the register.
(b)
The department ((in Olympia and Spokane, at which interested public and
private parties shall have the opportunity)) shall hold at least four
public hearings on the proposal in different locations throughout the state to
provide a reasonable opportunity for residents in all parts of the state to
present statements and views on the proposed guidelines. Notice of ((such))
the hearings shall be published at least once in each of the three weeks
immediately preceding the hearing in one or more newspapers of general
circulation in each county of the state. If an amendment to the guidelines
addresses an issue limited to one geographic area, the number and location of
hearings may be adjusted consistent with the intent of this subsection to
assure all parties a reasonable opportunity to comment on the proposed
amendment. The department shall accept written comments on the proposal during
the sixty-day public comment period and for seven days after the final public
hearing.
(c)
At the conclusion of the public comment period, the department shall review the
comments received and modify the proposal consistent with the provisions of
this chapter. The proposal shall then be published for adoption pursuant to
the provisions of chapter 34.05 RCW.
(((5)
Within ninety days following such public hearings, the department at a public
hearing to be held in Olympia shall adopt guidelines.)) (3) The
department may propose amendments to the guidelines not more than once each
year. At least once every five years the department shall conduct a review of
the guidelines pursuant to the procedures outlined in subsection (2) of this
section.
Sec.
305. RCW
90.58.080 and 1974 ex.s. c 61 s 1 are each amended to read as follows:
Local
governments ((are directed with regard to shorelines of the state within
their various jurisdictions as follows:
(1)
To complete within eighteen months after June 1, 1971, a comprehensive
inventory of such shorelines. Such inventory shall include but not be limited
to the general ownership patterns of the lands located therein in terms of
public and private ownership, a survey of the general natural characteristics
thereof, present uses conducted therein and initial projected uses thereof;
(2)
To)) shall develop or amend, within
twenty-four months after the adoption of guidelines as provided in RCW
90.58.060, a master program for regulation of uses of the shorelines of the
state consistent with the required elements of the guidelines adopted by
the department.
Sec.
306. RCW
90.58.090 and 1971 ex.s. c 286 s 9 are each amended to read as follows:
(1)
A master program((s or segments thereof)), segment of a master
program, or an amendment to a master program shall become effective when ((adopted
or)) approved by the department ((as appropriate)). Within the time
period provided in RCW 90.58.080, each local government shall have submitted a
master program, either totally or by segments, for all shorelines of the state
within its jurisdiction to the department for review and approval.
(2)
Upon receipt of a proposed master program or amendment, the department shall:
(a)
Provide notice to and opportunity for written comment by all interested parties
of record as a part of the local government review process for the proposal and
to all persons, groups, and agencies that have requested in writing notice of
proposed master programs or amendments generally or for a specific area,
subject matter, or issue. The comment period shall be at least thirty days,
unless the department determines that the level of complexity or controversy
involved supports a shorter period;
(b)
In the department's discretion, conduct a public hearing during the thirty-day
comment period in the jurisdiction proposing the master program or amendment;
(c)
Within fifteen days after the close of public comment, request the local
government to review the issues identified by the public, interested parties,
groups, and agencies and provide a written response as to how the proposal addresses
the identified issues;
(d)
Within thirty days after receipt of the local government response pursuant to
(c) of this subsection, make written findings and conclusions regarding the
consistency of the proposal with the policy of RCW 90.58.020 and the applicable
guidelines, provide a response to the issues identified in (c) of this
subsection, and either approve the proposal as submitted, recommend specific
changes necessary to make the proposal approvable, or deny approval of the
proposal in those instances where no alteration of the proposal appears likely
to be consistent with the policy of RCW 90.58.020 and the applicable
guidelines. The written findings and conclusions shall be provided to the
local government, all interested persons, parties, groups, and agencies of
record on the proposal;
(e)
If the department recommends changes to the proposed master program or
amendment, within thirty days after the department mails the written findings
and conclusions to the local government, the local government may:
(i)
Agree to the proposed changes. The receipt by the department of the written
notice of agreement constitutes final action by the department approving the
amendment; or
(ii)
Submit an alternative proposal. If, in the opinion of the department, the
alternative is consistent with the purpose and intent of the changes originally
submitted by the department and with this chapter it shall approve the changes
and provide written notice to all recipients of the written findings and
conclusions. If the department determines the proposal is not consistent with
the purpose and intent of the changes proposed by the department, the
department may resubmit the proposal for public and agency review pursuant to
this section or reject the proposal.
(((1)
As to those segments of the master program relating to shorelines, they shall
be approved by))
(3)
The department shall approve the segment of a master program relating to
shorelines unless it determines that the submitted segments are not
consistent with the policy of RCW 90.58.020 and the applicable guidelines. ((If
approval is denied, the department shall state within ninety days from the date
of submission in detail the precise facts upon which that decision is based,
and shall submit to the local government suggested modifications to the program
to make it consistent with said policy and guidelines. The local government
shall have ninety days after it receives recommendations from the department to
make modifications designed to eliminate the inconsistencies and to resubmit
the program to the department for approval. Any resubmitted program shall take
effect when and in such form and content as is approved by the department.
(2)
As to)) (4) The department shall approve those segments
of the master program relating to shorelines of state-wide significance ((the
department shall have full authority following review and evaluation of the
submission by local government to develop and adopt an alternative to the local
government's proposal if in the department's opinion the program submitted does
not)) only after determining the program provides the optimum
implementation of the policy of this chapter to satisfy the state-wide
interest. ((If the submission by local government is not approved, the
department shall suggest modifications to the local government within ninety
days from receipt of the submission. The local government shall have ninety
days after it receives said modifications to consider the same and resubmit a
master program to the department. Thereafter, the department shall adopt the
resubmitted program or, if the department determines that said program does not
provide for optimum implementation, it may develop and adopt an alternative as
hereinbefore provided.)) If the department does not approve a segment of
a local government master program relating to a shoreline of state-wide
significance, the department may develop and by rule adopt an alternative to
the local government’s proposal.
(((3)))
(5) In the event a local government has not complied with the
requirements of RCW 90.58.070 it may thereafter upon written notice to the
department elect to adopt a master program for the shorelines within its
jurisdiction, in which event it shall comply with the provisions established by
this chapter for the adoption of a master program for such shorelines.
Upon
approval of such master program by the department it shall supersede such
master program as may have been adopted by the department for such shorelines.
(6)
A master program or amendment to a master program takes effect when and in such
form as approved or adopted by the department. The department shall maintain a
record of each master program, the action taken on any proposal for adoption or
amendment of the master program, and any appeal of the department's action.
The department's approved document of record constitutes the official master
program.
Sec.
307. RCW
90.58.100 and 1992 c 105 s 2 are each amended to read as follows:
(1)
The master programs provided for in this chapter, when adopted ((and)) or
approved by the department((, as appropriate,)) shall constitute use
regulations for the various shorelines of the state. In preparing the master
programs, and any amendments thereto, the department and local governments
shall to the extent feasible:
(a)
Utilize a systematic interdisciplinary approach which will insure the
integrated use of the natural and social sciences and the environmental design
arts;
(b)
Consult with and obtain the comments of any federal, state, regional, or local
agency having any special expertise with respect to any environmental impact;
(c)
Consider all plans, studies, surveys, inventories, and systems of
classification made or being made by federal, state, regional, or local
agencies, by private individuals, or by organizations dealing with pertinent
shorelines of the state;
(d)
Conduct or support such further research, studies, surveys, and interviews as
are deemed necessary;
(e)
Utilize all available information regarding hydrology, geography, topography,
ecology, economics, and other pertinent data;
(f)
Employ, when feasible, all appropriate, modern scientific data processing and
computer techniques to store, index, analyze, and manage the information
gathered.
(2)
The master programs shall include, when appropriate, the following:
(a) An
economic development element for the location and design of industries,
transportation facilities, port facilities, tourist facilities, commerce and
other developments that are particularly dependent on their location on or use
of the shorelines of the state;
(b) A
public access element making provision for public access to publicly owned
areas;
(c) A
recreational element for the preservation and enlargement of recreational
opportunities, including but not limited to parks, tidelands, beaches, and
recreational areas;
(d) A
circulation element consisting of the general location and extent of existing
and proposed major thoroughfares, transportation routes, terminals, and other
public utilities and facilities, all correlated with the shoreline use element;
(e) A
use element which considers the proposed general distribution and general
location and extent of the use on shorelines and adjacent land areas for
housing, business, industry, transportation, agriculture, natural resources,
recreation, education, public buildings and grounds, and other categories of
public and private uses of the land;
(f) A
conservation element for the preservation of natural resources, including but
not limited to scenic vistas, aesthetics, and vital estuarine areas for
fisheries and wildlife protection;
(g) An
historic, cultural, scientific, and educational element for the protection and
restoration of buildings, sites, and areas having historic, cultural,
scientific, or educational values;
(h) An
element that gives consideration to the state-wide interest in the prevention
and minimization of flood damages; and
(i)
Any other element deemed appropriate or necessary to effectuate the policy of
this chapter.
(3)
The master programs shall include such map or maps, descriptive text, diagrams
and charts, or other descriptive material as are necessary to provide for ease
of understanding.
(4)
Master programs will reflect that state-owned shorelines of the state are
particularly adapted to providing wilderness beaches, ecological study areas,
and other recreational activities for the public and will give appropriate
special consideration to same.
(5)
Each master program shall contain provisions to allow for the varying of the
application of use regulations of the program, including provisions for permits
for conditional uses and variances, to insure that strict implementation of a
program will not create unnecessary hardships or thwart the policy enumerated
in RCW 90.58.020. Any such varying shall be allowed only if extraordinary
circumstances are shown and the public interest suffers no substantial
detrimental effect. The concept of this subsection shall be incorporated in
the rules adopted by the department relating to the establishment of a permit
system as provided in RCW 90.58.140(3).
(6)
Each master program shall contain standards governing the protection of single
family residences and appurtenant structures against damage or loss due to
shoreline erosion. The standards shall govern the issuance of substantial
development permits for shoreline protection, including structural methods such
as construction of bulkheads, and nonstructural methods of protection. The
standards shall provide for methods which achieve effective and timely
protection against loss or damage to single family residences and appurtenant
structures due to shoreline erosion. The standards shall provide a preference
for permit issuance for measures to protect single family residences occupied
prior to January 1, 1992, where the proposed measure is designed to minimize
harm to the shoreline natural environment.
Sec.
308. RCW
90.58.120 and 1989 c 175 s 182 are each amended to read as follows:
All
rules, regulations, ((master programs,)) designations, and guidelines,
issued by the department, and master programs and amendments adopted by the
department pursuant to RCW 90.58.070(2) or 90.58.090(4) shall be adopted or
approved in accordance with the provisions of RCW 34.05.310 through 34.05.395
insofar as such provisions are not inconsistent with the provisions of this
chapter. In addition:
(1)
Prior to the ((approval or)) adoption by the department of a master
program, or portion thereof pursuant to RCW 90.58.070(2) or 90.58.090(4),
at least one public hearing shall be held in each county affected by a program
or portion thereof for the purpose of obtaining the views and comments of the
public. Notice of each such hearing shall be published at least once in each
of the three weeks immediately preceding the hearing in one or more newspapers
of general circulation in the county in which the hearing is to be held.
(2)
All guidelines, regulations, designations, or master programs adopted or
approved under this chapter shall be available for public inspection at the
office of the department or the appropriate county ((auditor)) and city
((clerk)). The terms "adopt" and "approve" for
purposes of this section, shall include modifications and rescission of
guidelines.
Sec.
309. RCW 90.58.140
and 1992 c 105 s 3 are each amended to read as follows:
(1) A
development shall not be undertaken on the shorelines of the state unless it is
consistent with the policy of this chapter and, after adoption or approval, as
appropriate, the applicable guidelines, rules, or master program.
(2) A
substantial development shall not be undertaken on shorelines of the state
without first obtaining a permit from the government entity having
administrative jurisdiction under this chapter.
A
permit shall be granted:
(a)
From June 1, 1971, until such time as an applicable master program has become
effective, only when the development proposed is consistent with: (i) The
policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and
rules of the department; and (iii) so far as can be ascertained, the master
program being developed for the area;
(b)
After adoption or approval, as appropriate, by the department of an applicable
master program, only when the development proposed is consistent with the
applicable master program and ((the provisions of)) this chapter
((90.58 RCW)).
(3)
The local government shall establish a program, consistent with rules adopted
by the department, for the administration and enforcement of the permit system
provided in this section. The administration of the system so established
shall be performed exclusively by the local government.
(4)
Except as otherwise specifically provided in subsection (((13))) (11)
of this section, the local government shall require notification of the public
of all applications for permits governed by any permit system established
pursuant to subsection (3) of this section by ensuring that((:
(a)
A notice of such an application is published at least once a week on the same
day of the week for two consecutive weeks in a legal newspaper of general
circulation within the area in which the development is proposed; and
(b)
Additional)) notice of ((such an)) the application is
given by at least one of the following methods:
(((i)))
(a) Mailing of the notice to the latest recorded real property owners as
shown by the records of the county assessor within at least three hundred feet
of the boundary of the property upon which the substantial development is
proposed;
(((ii)))
(b) Posting of the notice in a conspicuous manner on the property upon
which the project is to be constructed; or
(((iii)))
(c) Any other manner deemed appropriate by local authorities to
accomplish the objectives of reasonable notice to adjacent landowners and the
public.
The
notices shall include a statement that any person desiring to submit written
comments concerning an application, or desiring to receive ((a copy)) notification
of the final ((order)) decision concerning an application as
expeditiously as possible after the issuance of the ((order)) decision,
may submit the comments or requests for ((orders)) decisions to
the local government within thirty days of the last date the notice is to be
published pursuant to ((subsection (a) of)) this subsection. The local
government shall forward, in a timely manner following the issuance of ((an
order)) a decision, a copy of the ((order)) decision
to each person who submits a request for the ((order)) decision.
If a
hearing is to be held on an application, notices of such a hearing shall
include a statement that any person may submit oral or written comments on an
application at the hearing.
(5)
The system shall include provisions to assure that construction pursuant to a
permit will not begin or be authorized until ((thirty)) twenty-one
days from the date the ((final order)) permit decision was filed
as provided in subsection (6) of this section; or until all review proceedings
are terminated if the proceedings were initiated within ((thirty)) twenty-one
days from the date of filing as defined in subsection (6) of this section
except as follows:
(a) In
the case of any permit issued to the state of Washington, department of
transportation, for the construction and modification of SR 90 (I-90) on or
adjacent to Lake Washington, the construction may begin after thirty days from
the date of filing, and the permits are valid until December 31, 1995;
(b) Construction
may be commenced no sooner than thirty days after the date of the appeal of the
board's decision is filed if a permit is granted by the local government
and (i) the granting of the permit is appealed to the shorelines hearings board
within ((thirty)) twenty-one days of the date of filing, (ii) the
hearings board approves the granting of the permit by the local government or
approves a portion of the substantial development for which the local
government issued the permit, and (iii) an appeal for judicial review of the
hearings board decision is filed pursuant to chapter 34.05 RCW((, the
permittee)). The appellant may request, within ten days of the
filing of the appeal with the court, a hearing before the court to determine
whether construction ((may begin)) pursuant to the permit approved by
the hearings board or to a revised permit issued pursuant to the order of the
hearings board should not commence. If, at the conclusion of the
hearing, the court finds that construction pursuant to such a permit would ((not))
involve a significant, irreversible damaging of the environment, the court ((may
allow)) shall prohibit the permittee ((to begin)) from
commencing the construction pursuant to the approved or revised permit ((as
the court deems appropriate. The court may require the permittee to post
bonds, in the name of the local government that issued the permit, sufficient
to remove the substantial development or to restore the environment if the
permit is ultimately disapproved by the courts, or to alter the substantial
development if the alteration is ultimately ordered by the courts)) until
all review proceedings are final. Construction pursuant to a permit
revised at the direction of the hearings board may begin only on that portion
of the substantial development for which the local government had originally
issued the permit, and construction pursuant to such a revised permit on other
portions of the substantial development may not begin until after all review
proceedings are terminated. In such a hearing before the court, the burden of
proving whether the construction may involve significant irreversible damage to
the environment and demonstrating whether such construction would or would not
be appropriate is on the appellant;
(c) ((If
a permit is granted by the local government and the granting of the permit is
appealed directly to the superior court for judicial review pursuant to the
proviso in RCW 90.58.180(1), the permittee may request the court to remand the
appeal to the shorelines hearings board, in which case the appeal shall be so
remanded and construction pursuant to such a permit shall be governed by the
provisions of subsection (b) of this subsection or may otherwise begin after
review proceedings before the hearings board are terminated if judicial review
is not thereafter requested pursuant to chapter 34.05 RCW;
(d))) If the
permit is for a substantial development meeting the requirements of subsection
(((13))) (11) of this section, construction pursuant to that
permit may not begin or be authorized until ((thirty)) twenty-one
days from the date the ((final order)) permit decision was filed
as provided in subsection (6) of this section.
If a
permittee begins construction pursuant to subsections (a), (b), or (c)((,
or (d))) of this subsection, the construction is begun at the permittee's
own risk. If, as a result of judicial review, the courts order the removal of
any portion of the construction or the restoration of any portion of the
environment involved or require the alteration of any portion of a substantial
development constructed pursuant to a permit, the permittee is barred from
recovering damages or costs involved in adhering to such requirements from the
local government that granted the permit, the hearings board, or any appellant
or intervener.
(6)
Any ((ruling)) decision on an application for a permit under the
authority of this section, whether it is an approval or a denial, shall,
concurrently with the transmittal of the ruling to the applicant, be filed with
the department and the attorney general. With regard to a permit other than a
permit governed by subsection (((12))) (10) of this section,
"date of filing" as used herein means the date of actual receipt by
the department. With regard to a permit for a variance or a conditional use,
"date of filing" means the date a decision of the department rendered
on the permit pursuant to subsection (((12))) (10) of this
section is transmitted by the department to the local government. The
department shall notify in writing the local government and the applicant of
the date of filing.
(7)
Applicants for permits under this section have the burden of proving that a
proposed substantial development is consistent with the criteria that must be
met before a permit is granted. In any review of the granting or denial of an
application for a permit as provided in RCW 90.58.180 (1) and (2), the person
requesting the review has the burden of proof.
(8)
Any permit may, after a hearing with adequate notice to the permittee and the
public, be rescinded by the issuing authority upon the finding that a permittee
has not complied with conditions of a permit. If the department is of the
opinion that noncompliance exists, the department shall provide written notice
to the local government and the permittee. If the department is of the opinion
that the noncompliance continues to exist thirty days after the date of the
notice, and the local government has taken no action to rescind the permit, the
department may petition the hearings board for a rescission of the permit upon
written notice of the petition to the local government and the permittee if the
request by the department is made to the hearings board within fifteen days of
the termination of the thirty-day notice to the local government.
(9)
The holder of a certification from the governor pursuant to chapter 80.50 RCW
shall not be required to obtain a permit under this section.
(10)
((A permit shall not be required for any development on shorelines of the
state included within a preliminary or final plat approved by the applicable
state agency or local government before April 1, 1971, if:
(a)
The final plat was approved after April 13, 1961, or the preliminary plat was
approved after April 30, 1969; and
(b)
The development is completed within two years after June 1, 1971.
(11)
The applicable state agency or local government is authorized to approve a
final plat with respect to shorelines of the state included within a
preliminary plat approved after April 30, 1969, and before April 1, 1971:
PROVIDED, That any substantial development within the platted shorelines of the
state is authorized by a permit granted pursuant to this section, or does not
require a permit as provided in subsection (10) of this section, or does not
require a permit because of substantial development occurred before June 1,
1971.
(12))) Any
permit for a variance or a conditional use by local government under approved master
programs must be submitted to the department for its approval or disapproval.
(((13)))
(11)(a) An application for a substantial development permit for a
limited utility extension or for the construction of a bulkhead or other
measures to protect a single family residence and its appurtenant structures
from shoreline erosion shall be subject to the following procedures:
(i)
The public comment period under subsection (4) of this section shall be twenty
days. The notice provided under subsection (4) of this section shall state the
manner in which the public may obtain a copy of the local government decision
on the application no later than two days following its issuance;
(ii)
The local government shall issue its decision to grant or deny the permit within
twenty-one days of the last day of the comment period specified in (i) of this
subsection; and
(iii)
If there is an appeal of the decision to grant or deny the permit to the local
government legislative authority, the appeal shall be finally determined by the
legislative authority within thirty days.
(b)
For purposes of this section, a limited utility extension means the extension
of a utility service that:
(i) Is
categorically exempt under chapter 43.21C RCW for one or more of the
following: Natural gas, electricity, telephone, water, or sewer;
(ii)
Will serve an existing use in compliance with this chapter; and
(iii)
Will not extend more than twenty-five hundred linear feet within the shorelines
of the state.
Sec.
310. RCW
90.58.180 and 1994 c 253 s 3 are each amended to read as follows:
(1)
Any person aggrieved by the granting, denying, or rescinding of a permit on
shorelines of the state pursuant to RCW 90.58.140 may seek review from the
shorelines hearings board by filing a ((request for the same)) petition
for review within ((thirty)) twenty-one days of the date of
filing as defined in RCW 90.58.140(6).
((Concurrently
with)) Within seven days of the filing of any ((request)) petition
for review with the board as provided in this section pertaining to a final ((order))
decision of a local government, the ((requestor)) petitioner
shall ((file a copy)) serve copies of ((his or her request
with)) the petition on the department and the office of the
attorney general. ((If it appears to the department or the attorney general
that the requestor has valid reasons to seek review, either the department or
the attorney general may certify the request within thirty days after its
receipt to the shorelines hearings board following which the board shall then,
but not otherwise, review the matter covered by the requestor. The failure to
obtain such certification shall not preclude the requestor from obtaining a
review in the superior court under any right to review otherwise available to
the requestor.)) The department and the attorney general may intervene to
protect the public interest and insure that the provisions of this chapter are
complied with at any time within fifteen days from the date of the receipt by
the department or the attorney general of a copy of the ((request)) petition
for review filed pursuant to this section. The shorelines hearings board shall
((initially)) schedule review proceedings on ((such requests)) the
petition for review without regard as to whether ((such requests have or
have not been certified or as to whether)) the period for the department or
the attorney general to intervene has or has not expired((, unless such
review is to begin within thirty days of such scheduling. If at the end of the
thirty day period for certification neither the department nor the attorney
general has certified a request for review, the hearings board shall remove the
request from its review schedule)).
(2)
The department or the attorney general may obtain review of any final ((order))
decision granting a permit, or granting or denying an application for a
permit issued by a local government by filing a written ((request)) petition
with the shorelines hearings board and the appropriate local government within
((thirty)) twenty-one days from the date the final ((order))
decision was filed as provided in RCW 90.58.140(6).
(3)
The review proceedings authorized in subsections (1) and (2) of this section
are subject to the provisions of chapter 34.05 RCW pertaining to procedures in
adjudicative proceedings. Judicial review of such proceedings of the
shorelines hearings board is governed by chapter 34.05 RCW. The board shall
issue its decision on the appeal authorized under subsections (1) and (2) of
this section within one hundred eighty days after the date the petition is
filed with the board or a petition to intervene is filed by the department or
the attorney general, whichever is later. The time period may be extended by
the board for a period of thirty days upon a showing of good cause or may be
waived by the parties.
(4) ((A
local government may appeal to the shorelines hearings board)) Any
person may appeal any rules, regulations, or guidelines adopted or approved
by the department within thirty days of the date of the adoption or approval.
The board shall make a final decision within sixty days following the hearing
held thereon.
((If
the board)) (5) The board shall find the rule, regulation, or guideline
to be valid and enter a final decision to that effect unless it determines
that the rule, regulation, or guideline:
(a) Is
clearly erroneous in light of the policy of this chapter; or
(b)
Constitutes an implementation of this chapter in violation of constitutional or
statutory provisions; or
(c) Is
arbitrary and capricious; or
(d)
Was developed without fully considering and evaluating all material submitted
to the department ((by the local government)) during public review
and comment; or
(e)
Was not adopted in accordance with required procedures((;)).
(6)
If the board makes a determination under subsection (5) (a) through (e)
of this section, it shall enter a final decision declaring the rule,
regulation, or guideline invalid, remanding the rule, regulation, or guideline
to the department with a statement of the reasons in support of the
determination, and directing the department to adopt, after a thorough
consultation with the affected local government and any other interested
party, a new rule, regulation, or guideline consistent with the board's
decision. ((Unless the board makes one or more of the determinations as
hereinbefore provided, the board shall find the rule, regulation, or guideline
to be valid and enter a final decision to that effect.
(5)
Rules, regulations, and guidelines)) (7) A decision of the board
on the validity of a rule, regulation, or guideline shall be subject to
review in superior court, if authorized pursuant to ((RCW 34.05.570(2). No
review shall be granted by a superior court on petition from a local government
unless the local government shall first have obtained review under subsection
(4) of this section and the petition for court review is)) chapter 34.05
RCW. A petition for review of the decision of the shorelines hearings board on
a rule, regulation, or guideline shall be filed within ((three months))
thirty days after the date of final decision by the shorelines hearings
board.
Sec.
311. RCW
90.58.190 and 1989 c 175 s 184 are each amended to read as follows:
(1) ((The
department and each local government shall periodically review any master
programs under its jurisdiction and make such adjustments thereto as are
necessary. Any adjustments proposed by a local government to its master
program shall be forwarded to the department for review. The department shall
approve, reject, or propose modification to the adjustment. If the department
either rejects or proposes modification to the master program adjustment, it
shall provide substantive written comments as to why the proposal is being
rejected or modified.)) 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.
((Any
local government aggrieved by)) (3)(a) The department's decision to
approve, reject, or modify a proposed master program or master program ((adjustment
may appeal the department's decision)) 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 ((adjustment)) amendment
and, after full consideration of the presentations of the local government and
the department, shall determine the validity of the local government's ((adjustment))
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 ((a
local government shall)) the board determines, by clear and
convincing evidence ((and argument, persuade the board)) 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 ((adjustment)) amendment is primarily located.
The department and any local government aggrieved by a final decision of the
hearings board may appeal the decision to ((the)) superior court ((of
Thurston county)) as provided in chapter 34.05 RCW.
(((3)))
(4) 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 ((adjustment)) 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 ((adjustment))
amendment.
Sec.
312. RCW
34.05.461 and 1989 c 175 s 19 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section:
(a) If
the presiding officer is the agency head or one or more members of the agency
head, the presiding officer may enter an initial order if further review is
available within the agency, or a final order if further review is not
available;
(b) If
the presiding officer is a person designated by the agency to make the final
decision and enter the final order, the presiding officer shall enter a final
order; and
(c) If
the presiding officer is one or more administrative law judges, the presiding
officer shall enter an initial order.
(2)
With respect to agencies exempt from chapter 34.12 RCW or an institution of
higher education, the presiding officer shall transmit a full and complete
record of the proceedings, including such comments upon demeanor of witnesses
as the presiding officer deems relevant, to each agency official who is to
enter a final or initial order after considering the record and evidence so
transmitted.
(3)
Initial and final orders shall include a statement of findings and conclusions,
and the reasons and basis therefor, on all the material issues of fact, law, or
discretion presented on the record, including the remedy or sanction and, if
applicable, the action taken on a petition for a stay of effectiveness. Any
findings based substantially on credibility of evidence or demeanor of
witnesses shall be so identified. Findings set forth in language that is
essentially a repetition or paraphrase of the relevant provision of law shall
be accompanied by a concise and explicit statement of the underlying evidence
of record to support the findings. The order shall also include a statement of
the available procedures and time limits for seeking reconsideration or other
administrative relief. An initial order shall include a statement of any
circumstances under which the initial order, without further notice, may become
a final order.
(4)
Findings of fact shall be based exclusively on the evidence of record in the
adjudicative proceeding and on matters officially noticed in that proceeding.
Findings shall be based on the kind of evidence on which reasonably prudent
persons are accustomed to rely in the conduct of their affairs. Findings may
be based on such evidence even if it would be inadmissible in a civil trial.
However, the presiding officer shall not base a finding exclusively on such
inadmissible evidence unless the presiding officer determines that doing so
would not unduly abridge the parties' opportunities to confront witnesses and
rebut evidence. The basis for this determination shall appear in the order.
(5)
Where it bears on the issues presented, the agency's experience, technical
competency, and specialized knowledge may be used in the evaluation of
evidence.
(6) If
a person serving or designated to serve as presiding officer becomes
unavailable for any reason before entry of the order, a substitute presiding
officer shall be appointed as provided in RCW 34.05.425. The substitute
presiding officer shall use any existing record and may conduct any further
proceedings appropriate in the interests of justice.
(7)
The presiding officer may allow the parties a designated time after conclusion
of the hearing for the submission of memos, briefs, or proposed findings.
(8)(a)
Except as otherwise provided in (b) of this subsection, initial or final
orders shall be served in writing within ninety days after conclusion of the
hearing or after submission of memos, briefs, or proposed findings in
accordance with subsection (7) of this section unless this period is waived or
extended for good cause shown.
(b)
This subsection does not apply to the final order of the shorelines hearings
board on appeal under RCW 90.58.180(3).
(9)
The presiding officer shall cause copies of the order to be served on each
party and the agency.
NEW
SECTION. Sec. 313. RCW
90.58.145 and 1979 ex.s. c 84 s 4 are each repealed.
PART IV
- LOCAL PERMIT PROCESS
NEW
SECTION. Sec. 401. The
legislature finds and declares the following:
(1) As
the number of environmental laws and development regulations has increased for
land uses and development, so has the number of required local land use
permits, each with its own separate approval process.
(2)
The increasing number of local and state land use permits and separate
environmental review processes required by agencies has generated continuing
potential for conflict, overlap, and duplication between the various permit and
review processes.
(3)
This regulatory burden has significantly added to the cost and time needed to
obtain local and state land use permits and has made it difficult for the
public to know how and when to provide timely comments on land use proposals
that require multiple permits and have separate environmental review processes.
NEW
SECTION. Sec. 402. Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Closed record appeal" means an administrative appeal on the record
to a local government body or officer, including the legislative body,
following an open record hearing on a project permit application when the
appeal is on the record with no or limited new evidence or information allowed
to be submitted and only appeal argument allowed.
(2)
"Local government" means a county, city, or town.
(3)
"Open record hearing" means a hearing, conducted by a single hearing
body or officer authorized by the local government to conduct such hearings,
that creates the local government's record through testimony and submission of
evidence and information, under procedures prescribed by the local government
by ordinance or resolution. An open record hearing may be held prior to a
local government's decision on a project permit to be known as an "open
record predecision hearing." An open record hearing may be held on an
appeal, to be known as an "open record appeal hearing," if no open record
predecision hearing has been held on the project permit.
(4)
"Project permit" or "project permit application" means any
land use or environmental permit or license required from a local government
for a project action, including but not limited to building permits, subdivisions,
binding site plans, planned unit developments, conditional uses, shoreline
substantial development permits, site plan review, permits or approvals
required by critical area ordinances, site-specific rezones authorized by a
comprehensive plan or subarea plan, but excluding the adoption or amendment of
a comprehensive plan, subarea plan, or development regulations except as
otherwise specifically included in this subsection.
(5)
"Public meeting" means an informal meeting, hearing, workshop, or
other public gathering of people to obtain comments from the public or other
agencies on a proposed project permit prior to the local government’s
decision. A public meeting may include, but is not limited to, a design review
or architectural control board meeting, a special review district or community
council meeting, or a scoping meeting on a draft environmental impact
statement. A public meeting does not include an open record hearing. The
proceedings at a public meeting may be recorded and a report or recommendation
may be included in the local government’s project permit application file.
NEW
SECTION. Sec. 403. In
enacting sections 404 and 405 of this act, the legislature intends to establish
a mechanism for implementing the provisions of chapter 36.70A RCW regarding
compliance, conformity, and consistency of proposed projects with adopted
comprehensive plans and development regulations. In order to achieve this
purpose the legislature finds that:
(1)
Given the extensive investment that public agencies and a broad spectrum of the
public are making and will continue to make in comprehensive plans and
development regulations for their communities, it is essential that project
review start from the fundamental land use planning choices made in these plans
and regulations. If the applicable regulations or plans identify the type of
land use, specify residential density in urban growth areas, and identify and
provide for funding of public facilities needed to serve the proposed development
and site, these decisions at a minimum provide the foundation for further
project review unless there is a question of code interpretation. The project
review process, including the environmental review process under chapter 43.21C
RCW and the consideration of consistency, should start from this point and
should not reanalyze these land use planning decisions in making a permit
decision.
(2)
Comprehensive plans and development regulations adopted by local governments
under chapter 36.70A RCW and environmental laws and rules adopted by the state
and federal government have addressed a wide range of environmental subjects
and impacts. These provisions typically require environmental studies and
contain specific standards to address various impacts associated with a
proposed development, such as building size and location, drainage,
transportation requirements, and protection of critical areas. When a
permitting agency applies these existing requirements to a proposed project,
some or all of a project's potential environmental impacts will be avoided or
otherwise mitigated. Through the integrated project review process described in
subsection (1) of this section, the local government will determine whether
existing requirements, including the applicable regulations or plans,
adequately analyze and address a project's environmental impacts. Section 202
of this act provides that project review should not require additional studies
or mitigation under chapter 43.21C RCW where existing regulations have adequately
addressed a proposed project's probable specific adverse environmental impacts.
(3)
Given the hundreds of jurisdictions and agencies in the state and the numerous
communities and applicants affected by development regulations and
comprehensive plans adopted under chapter 36.70A RCW, it is essential to
establish a uniform framework for considering the consistency of a proposed
project with the applicable regulations or plan. Consistency should be
determined in the project review process by considering four factors found in
applicable regulations or plans: The type of land use allowed; the level of
development allowed, such as units per acre or other measures of density;
infrastructure, such as the adequacy of public facilities and services to serve
the proposed project; and the character of the proposed development, such as
compliance with specific development standards. This uniform approach
corresponds to existing project review practices and will not place a burden on
applicants or local government. The legislature intends that this approach
should be largely a matter of checking compliance with existing requirements
for most projects, which are simple or routine, while more complex projects may
require more analysis. Sections 202 and 404 of this act establish this uniform
framework and also direct state agencies to consult with local government and
the public to develop a better format than the current environmental checklist
to meet this objective.
(4)
When an applicant applies for a project permit, consistency between the
proposed project and applicable regulations or plan should be determined
through a project review process that integrates land use and environmental
impact analysis, so that governmental and public review of the proposed project
as required by this chapter, by development regulations under chapter 36.70A
RCW, and by the environmental process under chapter 43.21C RCW run concurrently
and not separately.
(5)
Sections 404 and 405 of this act address three related needs with respect to
how the project review process should address consistency between a proposed
project and the applicable regulations or plan:
(a) A
uniform framework for the meaning of consistency;
(b) An
emphasis on relying on existing requirements and adopted standards, with the
use of supplemental authority as specified by chapter 43.21C RCW to the extent
that existing requirements do not adequately address a project's specific
probable adverse environmental impacts; and
(c)
The identification of three basic land use planning choices made in applicable
regulations or plans that, at a minimum, serve as a foundation for project
review and that should not be reanalyzed during project permitting.
NEW
SECTION. Sec. 404. (1)
Fundamental land use planning choices made in adopted comprehensive plans and
development regulations shall serve as the foundation for project review. The
review of a proposed project's consistency with applicable development
regulations, or in the absence of applicable regulations the adopted
comprehensive plan, under section 405 of this act shall incorporate the
determinations under this section.
(2)
During project review, a local government or any subsequent reviewing body
shall determine whether the items listed in this subsection are defined in the
development regulations applicable to the proposed project or, in the absence
of applicable regulations the adopted comprehensive plan. At a minimum, such
applicable regulations or plans shall be determinative of the:
(a)
Type of land use permitted at the site, including uses that may be allowed
under certain circumstances, such as planned unit developments and conditional
and special uses, if the criteria for their approval have been satisfied;
(b)
Density of residential development in urban growth areas; and
(c)
Availability and adequacy of public facilities identified in the comprehensive
plan, if the plan or development regulations provide for funding of these
facilities as required by chapter 36.70A RCW.
(3)
During project review, the local government or any subsequent reviewing body
shall not reexamine alternatives to or hear appeals on the items identified in
subsection (2) of this section, except for issues of code interpretation. As
part of its project review process, a local government shall provide a
procedure for obtaining a code interpretation as provided in section 415 of
this act.
(4)
Pursuant to section 202 of this act, a local government may determine that the
requirements for environmental analysis and mitigation measures in development
regulations and other applicable laws provide adequate mitigation for some or
all of the project's specific adverse environmental impacts to which the
requirements apply.
(5)
Nothing in this section limits the authority of a permitting agency to approve,
condition, or deny a project as provided in its development regulations adopted
under chapter 36.70A RCW and in its policies adopted under RCW 43.21C.060.
Project review shall be used to identify specific project design and conditions
relating to the character of development, such as the details of site plans,
curb cuts, drainage swales, transportation demand management, the payment of
impact fees, or other measures to mitigate a proposal's probable adverse
environmental impacts, if applicable.
(6)
Subsections (1) through (4) of this section apply only to local governments
planning under RCW 36.70A.040.
NEW
SECTION. Sec. 405. (1) A
proposed project's consistency with a local government's development
regulations adopted under chapter 36.70A RCW, or, in the absence of applicable
development regulations, the appropriate elements of the comprehensive plan or
subarea plan adopted under chapter 36.70A RCW shall be determined by
consideration of:
(a)
The type of land use;
(b)
The level of development, such as units per acre or other measures of density;
(c)
Infrastructure, including public facilities and services needed to serve the
development; and
(d)
The character of the development, such as development standards.
(2) In
determining consistency, the determinations made pursuant to section 404(2) of
this act shall be controlling.
(3)
For purposes of this section, the term "consistency" shall include
all terms used in this chapter and chapter 36.70A RCW to refer to performance
in accordance with this chapter and chapter 36.70A RCW, including but not
limited to compliance, conformity, and consistency.
(4)
Nothing in this section requires documentation, dictates an agency's procedures
for considering consistency, or limits a unit of government from asking more
specific or related questions with respect to any of the four main categories
listed in subsection (1) (a) through (d) of this section.
NEW
SECTION. Sec. 406. Not later
than March 31, 1996, each local government shall provide by ordinance or
resolution for review of project permit applications to achieve the following
objectives:
(1)
Combine the environmental review process, both procedural and substantive, with
the procedure for review of project permits; and
(2)
Except for the appeal of a determination of significance as provided in RCW
43.21C.075, provide for no more than one open record hearing and one closed
record appeal.
NEW
SECTION. Sec. 407. Not later
than March 31, 1996, each local government planning under RCW 36.70A.040 shall
establish by ordinance or resolution an integrated and consolidated project
permit process that may be included in its development regulations. In
addition to the elements required by section 406 of this act, the process shall
include the following elements:
(1) A
determination of completeness to the applicant as required by RCW 36.70A.440
(as recodified by this act);
(2) A
notice of application to the public and agencies with jurisdiction as required
by section 415 of this act;
(3)
Except as provided in section 418 of this act, an optional consolidated project
permit review process as provided in section 416 of this act. The review
process shall provide for no more than one consolidated open record hearing and
one closed record appeal. If an open record predecision hearing is provided
prior to the decision on a project permit, the process shall not allow a
subsequent open record appeal hearing;
(4)
Provision allowing for any public meeting or required open record hearing to be
combined with any public meeting or open record hearing that may be held on the
project by another local, state, regional, federal, or other agency, in
accordance with provisions of sections 413 and 415 of this act;
(5) A
single report stating all the decisions made as of the date of the report on
all project permits included in the consolidated permit process that do not
require an open record predecision hearing and any recommendations on project
permits that do not require an open record predecision hearing. The report
shall state any mitigation required or proposed under the development
regulations or the agency's authority under RCW 43.21C.060. The report may be
the local permit. If a threshold determination other than a determination of
significance has not been issued previously by the local government, the report
shall include or append this determination.
(6)
Except for the appeal of a determination of significance as provided in RCW
43.21C.075, if a local government elects to provide an appeal of its threshold
determinations or project permit decisions, the local government shall provide
for no more than one consolidated open record hearing on such appeal. The
local government need not provide for any further appeal and may provide an
appeal for some but not all project permit decisions. If an appeal is provided
after the open record hearing, it shall be a closed record appeal before a
single decision-making body or officer;
(7) A
notice of decision as required by section 417 of this act and issued
within the time period provided in RCW 36.70A.065 (as recodified by this act)
and section 413 of this act;
(8)
Completion of project review by the local government, including environmental
review and public review and any appeals to the local government, within any
applicable time periods under section 413 of this act; and
(9)
Any other provisions not inconsistent with the requirements of this chapter or
chapter 43.21C RCW.
Sec.
408. RCW
36.70A.440 and 1994 c 257 s 4 are each amended to read as follows:
((Each
city and county)) (1) Within twenty-eight days after receiving a project
permit application, a local government planning pursuant to RCW 36.70A.040
shall((, within twenty working days of receiving a development permit
application as defined in RCW 36.70A.030(7),)) mail or provide in person a
written ((notice)) determination to the applicant, stating
either:
(a)
That the application is complete; or
(b)
That the application is incomplete and what is necessary to make the
application complete.
To the
extent known by the ((city or county)) local government, the ((notice))
local government shall identify other agencies of local, state, or
federal governments that may have jurisdiction over some aspect of the
application.
(2)
A project permit application is complete for purposes of this section when it
meets the procedural submission requirements of the local government and is
sufficient for continued processing even though additional information may be
required or project modifications may be undertaken subsequently. The
determination of completeness shall not preclude the local government from
requesting additional information or studies either at the time of the notice
of completeness or subsequently if new information is required or substantial
changes in the proposed action occur.
(3)
The determination of completeness may include the following as optional
information:
(a)
A preliminary determination of those development regulations that will be used
for project mitigation;
(b)
A preliminary determination of consistency, as provided under section 405 of
this act; or
(c)
Other information the local government chooses to include.
(4)(a)
An application shall be deemed complete under this section if the local
government does not provide a written determination to the applicant that the
application is incomplete as provided in subsection (1)(b) of this section.
(b)
Within fourteen days after an applicant has submitted to a local government
additional information identified by the local government as being necessary
for a complete application, the local government shall notify the applicant
whether the application is complete or what additional information is
necessary.
Sec.
409. RCW
36.70A.065 and 1994 c 257 s 3 are each amended to read as follows:
Development
regulations adopted pursuant to RCW 36.70A.040 shall establish time periods consistent
with section 413 of this act for local government actions on specific ((development))
project permit applications and provide timely and predictable
procedures to determine whether a completed ((development)) project
permit application meets the requirements of those development regulations.
Such development regulations shall specify the contents of a completed ((development))
project permit application necessary for the application of such time
periods and procedures.
Sec.
410. RCW
36.70A.065 and 1994 c 257 s 3 are each amended to read as follows:
Development
regulations adopted pursuant to RCW 36.70A.040 shall establish time periods for
local government actions on specific ((development)) project
permit applications and provide timely and predictable procedures to determine
whether a completed ((development)) project permit application
meets the requirements of those development regulations. Such development
regulations shall specify the contents of a completed ((development)) project
permit application necessary for the application of such time periods and
procedures.
NEW
SECTION. Sec. 411. The
amendments to RCW 36.70A.065 contained in section 409 of this act shall expire
July 1, 1998.
NEW
SECTION. Sec. 412. Section
410 of this act shall take effect July 1, 1998.
NEW
SECTION. Sec. 413. (1)
Except as otherwise provided in subsection (2) of this section, a local
government planning under RCW 36.70A.040 shall issue its notice of final
decision on a project permit application within one hundred twenty days after
the local government notifies the applicant that the application is complete,
as provided in RCW 36.70A.440 (as recodified by this act). In determining the
number of days that have elapsed after the local government has notified the
applicant that the application is complete, the following periods shall be
excluded:
(a)(i)
Any period during which the applicant has been requested by the local
government to correct plans, perform required studies, or provide additional
required information. The period shall be calculated from the date the local
government notifies the applicant of the need for additional information until the
earlier of the date the local government determines whether the additional
information satisfies the request for information or fourteen days after the
date the information has been provided to the local government.
(ii)
If the local government determines that the information submitted by the
applicant under (a)(i) of this subsection is insufficient, it shall notify the
applicant of the deficiencies and the procedures under (a)(i) of this
subsection shall apply as if a new request for studies had been made;
(b)
Any period during which an environmental impact statement is being prepared
following a determination of significance pursuant to chapter 43.21C RCW, if
the local government by ordinance or resolution has established time periods
for completion of environmental impact statements, or if the local government
and the applicant in writing agree to a time period for completion of an
environmental impact statement;
(c)
Any period for administrative appeals of project permits, if an open record
appeal hearing or a closed record appeal, or both, are allowed. The local
government by ordinance or resolution shall establish a time period to
consider and decide such appeals. The time period shall not exceed: (i) Ninety
days for an open record appeal hearing; and (ii) sixty days for a closed record
appeal. The parties to an appeal may agree to extend these time periods; and
(d)
Any extension of time mutually agreed upon by the applicant and the local
government.
(2)
The time limits established by subsection (1) of this section do not apply if a
project permit application:
(a)
Requires an amendment to the comprehensive plan or a development regulation;
(b)
Requires approval of a new fully contained community as provided in RCW
36.70A.350, a master planned resort as provided in RCW 36.70A.360, or the
siting of an essential public facility as provided in RCW 36.70A.200; or
(c) Is
substantially revised by the applicant, in which case the time period shall
start from the date at which the revised project application is determined to
be complete under RCW 36.70A.440 (as recodified by this act).
(3) If
the local government is unable to issue its final decision within the time
limits provided for in this section, it shall provide written notice of this
fact to the project applicant. The notice shall include a statement of reasons
why the time limits have not been met and an estimated date for issuance of the
notice of final decision.
(4)
This section shall apply to project permit applications filed on or after April
1, 1996.
NEW
SECTION. Sec. 414. A local
government may require the applicant for a project permit to designate a single
person or entity to receive determinations and notices required by this
chapter.
NEW
SECTION. Sec. 415. (1) Not
later than April 1, 1996, a local government planning under RCW 36.70A.040
shall provide a notice of application to the public and the departments and
agencies with jurisdiction as provided in this section. If a local government
has made a determination of significance under chapter 43.21C RCW concurrently
with the notice of application, the notice of application shall be combined
with the determination of significance and scoping notice. Nothing in this
section prevents a determination of significance and scoping notice from being
issued prior to the notice of application.
(2)
The notice of application shall be provided within fourteen days after the
determination of completeness as provided in RCW 36.70A.440 (as recodified by
this act) and include the following in whatever sequence or format the local
government deems appropriate:
(a)
The date of application, the date of the notice of completion for the
application, and the date of the notice of application;
(b) A
description of the proposed project action and a list of the project permits
included in the application and, if applicable, a list of any studies requested
under RCW 36.70A.440 (as recodified by this act) or section 413 of this
act;
(c)
The identification of other permits not included in the application to the
extent known by the local government;
(d)
The identification of existing environmental documents that evaluate the
proposed project, and, if not otherwise stated on the document providing the
notice of application, such as a city land use bulletin, the location where the
application and any studies can be reviewed;
(e) A
statement of the public comment period, which shall be not less than fourteen
nor more than thirty days following the date of notice of application, and
statements of the right of any person to comment on the application, receive
notice of and participate in any hearings, request a copy of the decision once
made, and any appeal rights. A local government may accept public comments at
any time prior to the closing of the record of an open record predecision
hearing, if any, or, if no open record predecision hearing is provided, prior
to the decision on the project permit;
(f)
The date, time, place, and type of hearing, if applicable and scheduled at the
date of notice of the application;
(g) A
statement of the preliminary determination, if one has been made at the time of
notice, of those development regulations that will be used for project
mitigation and of consistency as provided in section 405 of this act; and
(h)
Any other information determined appropriate by the local government.
(3) If
an open record predecision hearing is required for the requested project
permits, the notice of application shall be provided at least fifteen days
prior to the open record hearing.
(4) A
local government shall use reasonable methods to give the notice of application
to the public and agencies with jurisdiction and may use its existing notice
procedures. A local government may use different types of notice for different
categories of project permits or types of project actions. If a local
government by resolution or ordinance does not specify its method of public
notice, the local government shall use the methods provided for in (a) and (b)
of this subsection. Examples of reasonable methods to inform the public are:
(a)
Posting the property for site-specific proposals;
(b)
Publishing notice, including at least the project location, description, type
of permit(s) required, comment period dates, and location where the complete
application may be reviewed, in the newspaper of general circulation in the
general area where the proposal is located or in a local land use newsletter
published by the local government;
(c)
Notifying public or private groups with known interest in a certain proposal or
in the type of proposal being considered;
(d)
Notifying the news media;
(e)
Placing notices in appropriate regional or neighborhood newspapers or trade
journals;
(f)
Publishing notice in agency newsletters or sending notice to agency mailing
lists, either general lists or lists for specific proposals or subject areas;
and
(g)
Mailing to neighboring property owners.
(5) A
notice of application shall not be required for project permits that are
categorically exempt under chapter 43.21C RCW, unless a public comment period
or an open record predecision hearing is required.
(6) A
local government shall integrate the permit procedures in this section with
environmental review under chapter 43.21C RCW as follows:
(a)
Except for a determination of significance, the local government may not issue
its threshold determination, or issue a decision or a recommendation on a
project permit until the expiration of the public comment period on the notice
of application.
(b) If
an open record predecision hearing is required and the local government's
threshold determination requires public notice under chapter 43.21C RCW, the
local government shall issue its threshold determination at least fifteen days
prior to the open record predecision hearing.
(c)
Comments shall be as specific as possible.
(7) A
local government may combine any hearing on a project permit with any hearing
that may be held by another local, state, regional, federal, or other agency
provided that the hearing is held within the geographic boundary of the local
government. Hearings shall be combined if requested by an applicant, as long
as the joint hearing can be held within the time periods specified in section
413 of this act or the applicant agrees to the schedule in the event that
additional time is needed in order to combine the hearings. All agencies of
the state of Washington, including municipal corporations and counties
participating in a combined hearing, are hereby authorized to issue joint
hearing notices and develop a joint format, select a mutually acceptable
hearing body or officer, and take such other actions as may be necessary to
hold joint hearings consistent with each of their respective statutory obligations.
(8)
All state and local agencies shall cooperate to the fullest extent possible
with the local government in holding a joint hearing if requested to do so, as
long as:
(a)
The agency is not expressly prohibited by statute from doing so;
(b)
Sufficient notice of the hearing is given to meet each of the agencies' adopted
notice requirements as set forth in statute, ordinance, or rule; and
(c)
The agency has received the necessary information about the proposed project
from the applicant to hold its hearing at the same time as the local government
hearing.
(9) A
local government is not required to provide for administrative appeals. If
provided, an administrative appeal of the project decision, combined with any
environmental determinations, shall be filed within fourteen days after the
notice of the decision or after other notice that the decision has been made
and is appealable. The local government shall extend the appeal period for an
additional seven days, if state or local rules adopted pursuant to chapter
43.21C RCW allow public comment on a determination of nonsignificance issued as
part of the appealable project permit decision.
(10)
The applicant for a project permit is deemed to be a participant in any comment
period, open record hearing, or closed record appeal.
(11)
Each local government planning under RCW 36.70A.040 shall adopt procedures for
administrative interpretation of its development regulations.
NEW
SECTION. Sec. 416. (1) Each
local government planning under RCW 36.70A.040 shall establish a permit review process
that provides for the integrated and consolidated review and decision on two or
more project permits relating to a proposed project action, including a single
application review and approval process covering all project permits requested
by an applicant for all or part of a project action and a designated permit
coordinator. If an applicant elects the consolidated permit review process,
the determination of completeness, notice of application, and notice of final
decision must include all project permits being reviewed through the
consolidated permit review process.
(2)
Consolidated permit review may provide different procedures for different
categories of project permits, but if a project action requires project permits
from more than one category, the local government shall provide for
consolidated permit review with a single open record hearing and no more than
one closed record appeal as provided in section 407 of this act. Each local
government shall determine which project permits are subject to an open record
hearing and a closed record appeal. Examples of categories of project permits
include but are not limited to:
(a)
Proposals that are categorically exempt from chapter 43.21C RCW, such as
construction permits, that do not require environmental review or public
notice;
(b)
Permits that require environmental review, but no open record predecision
hearing; and
(c)
Permits that require a threshold determination and an open record predecision
hearing and may provide for a closed record appeal to a hearing body or officer
or to the local government legislative body.
(3) A
local government may provide by ordinance or resolution for the same or a
different decision maker or hearing body or officer for different categories of
project permits. In the case of consolidated project permit review, the local
government shall specify which decision makers shall make the decision or
recommendation, conduct the hearing, or decide the appeal to ensure that
consolidated permit review occurs as provided in this section. The
consolidated permit review may combine an open record predecision hearing on
one or more permits with an open record appeal hearing on other permits. In
such cases, the local government by ordinance or resolution shall specify which
project permits, if any, shall be subject to a closed record appeal.
NEW
SECTION. Sec. 417. A local
government planning under RCW 36.70A.040 shall provide a notice of decision
that also includes a statement of any threshold determination made under
chapter 43.21C RCW and the procedures for administrative appeal, if any. The
notice of decision may be a copy of the report or decision on the project
permit application. The notice shall be provided to the applicant and to any
person who, prior to the rendering of the decision, requested notice of the
decision or submitted substantive comments on the application. The local
government shall provide for notice of its decision as provided in section
415(4) of this act.
NEW
SECTION. Sec. 418. (1) A
local government by ordinance or resolution may exclude the following project
permits from the provisions of RCW 36.70A.440 (as recodified by this act),
36.70A.065 (as recodified by this act), and sections 407, 413, and 415 through
417 of this act: Landmark designations, street vacations, or other approvals
relating to the use of public areas or facilities, or other project permits,
whether administrative or quasi-judicial, that the local government by ordinance
or resolution has determined present special circumstances that warrant a
review process different from that provided in RCW 36.70A.440 (as recodified by
this act), 36.70A.065 (as recodified by this act), and sections 407, 413, and
415 through 417 of this act.
(2) A
local government by ordinance or resolution also may exclude the following
project permits from the provisions of sections 407 and 415 through 417 of this
act: Lot line or boundary adjustments and building and other construction
permits, or similar administrative approvals, categorically exempt from
environmental review under chapter 43.21C RCW, or for which environmental
review has been completed in connection with other project permits.
NEW
SECTION. Sec. 419. A local
government not planning under RCW 36.70A.040 may incorporate some or all of the
provisions of sections 407, 413, and 415 through 417 of this act and RCW
36.70A.065 and 36.70A.440 (as recodified by this act) into its procedures for
review of project permits or other project actions.
NEW
SECTION. Sec. 420. (1) Each
local government is encouraged to adopt further project review provisions to
provide prompt, coordinated review and ensure accountability to applicants and
the public, including expedited review for project permit applications for
projects that are consistent with adopted development regulations and within
the capacity of system-wide infrastructure improvements.
(2)
Nothing in this chapter is intended or shall be construed to prevent a local
government from requiring a preapplication conference or a public meeting by
rule, ordinance, or resolution.
(3)
Each local government shall adopt procedures to monitor and enforce permit
decisions and conditions.
(4)
Nothing in this chapter modifies any independent statutory authority for a
government agency to appeal a project permit issued by a local government.
NEW
SECTION. Sec. 421. A new
section is added to chapter 64.40 RCW to read as follows:
A
local government is not liable for damages under this chapter due to the local
government’s failure to make a final decision within the time limits
established in section 413 of this act.
Sec.
422. RCW
43.21C.033 and 1992 c 208 s 1 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, the responsible official
shall make a threshold determination on a completed application within ninety
days after the application and supporting documentation are complete. The
applicant may request an additional thirty days for the threshold
determination. The governmental entity responsible for making the threshold
determination shall by rule, resolution, or ordinance adopt standards,
consistent with rules adopted by the department to implement this chapter, for
determining when an application and supporting documentation are complete.
(2)
This section shall not apply to a city, town, or county that:
(a)
By ordinance adopted prior to April 1, 1992, has adopted procedures to
integrate permit and land use decisions with the requirements of this chapter;
or
(b)
Is planning under RCW 36.70A.040 and is subject to the requirements of section
413 of this act.
Sec.
423. RCW
35.63.130 and 1994 c 257 s 8 are each amended to read as follows:
(1) As
an alternative to those provisions of this chapter relating to powers or duties
of the planning commission to hear and report on any proposal to amend a zoning
ordinance, the legislative body of a city or county may adopt a hearing examiner
system under which a hearing examiner or hearing examiners may hear and decide
applications for amending the zoning ordinance when the amendment which is
applied for is not of general applicability. In addition, the legislative body
may vest in a hearing examiner the power to hear and decide those issues it
believes should be reviewed and decided by a hearing examiner, including but
not limited to:
(a)
Applications for conditional uses, variances, subdivisions, shoreline
permits, or any other class of applications for or pertaining to development
of land or land use((s which the legislative body believes should be
reviewed and decided by a hearing examiner));
(b)
Appeals of administrative decisions or determinations; and
(c)
Appeals of administrative decisions or determinations pursuant to chapter
43.21C RCW.
The
legislative body shall prescribe procedures to be followed by the hearing
examiner.
(2)
Each city or county legislative body electing to use a hearing examiner
pursuant to this section shall by ordinance specify the legal effect of the
decisions made by the examiner. ((Except as provided in subsection (2) of
this section,)) The legal effect of such decisions may vary for the
different classes of applications decided by the examiner but shall include one
of the following:
(a)
The decision may be given the effect of a recommendation to the legislative
body;
(b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body((.
(2)
The legislative body may specify the legal effect of a hearing examiner's
procedural determination under the state environmental policy act, as defined
in RCW 43.21C.075(3)(a). It may have the effect under subsection (1) (a) or
(b) of this section, or)); or
(c)
Except in the case of a rezone, the decision may be given the effect of a
final decision of the legislative body.
(3)
Each final decision of a hearing examiner shall be in writing and shall include
findings and conclusions, based on the record, to support the decision. Such
findings and conclusions shall also set forth the manner in which the decision
would carry out and conform to the city's or county's comprehensive plan and
the city's or county's development regulations. Each final decision of a
hearing examiner, unless a longer period is mutually agreed to in writing by
the applicant and the hearing examiner, shall be rendered within ten working
days following conclusion of all testimony and hearings.
Sec.
424. RCW
35A.63.170 and 1994 c 257 s 7 are each amended to read as follows:
(1) As
an alternative to those provisions of this chapter relating to powers or duties
of the planning commission to hear and report on any proposal to amend a zoning
ordinance, the legislative body of a city may adopt a hearing examiner system
under which a hearing examiner or hearing examiners may hear and decide
applications for amending the zoning ordinance when the amendment which is
applied for is not of general applicability. In addition, the legislative body
may vest in a hearing examiner the power to hear and decide those issues it
believes should be reviewed and decided by a hearing examiner, including but
not limited to:
(a)
Applications for conditional uses, variances, subdivisions, shoreline
permits, or any other class of applications for or pertaining to development
of land or land use((s which the legislative body believes should be
reviewed and decided by a hearing examiner));
(b)
Appeals of administrative decisions or determinations; and
(c)
Appeals of administrative decisions or determinations pursuant to chapter
43.21C RCW.
The
legislative body shall prescribe procedures to be followed by a hearing
examiner. If the legislative authority vests in a hearing examiner the
authority to hear and decide variances, then the provisions of RCW 35A.63.110
shall not apply to the city.
(2)
Each city legislative body electing to use a hearing examiner pursuant to this
section shall by ordinance specify the legal effect of the decisions made by
the examiner. ((Except as provided in subsection (2) of this section,))
The legal effect of such decisions may vary for the different classes of
applications decided by the examiner but shall include one of the following:
(a)
The decision may be given the effect of a recommendation to the legislative
body;
(b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body((.
(2)
The legislative body shall specify the legal effect of a hearing examiner's
procedural determination under the state environmental policy act, as defined
in RCW 43.21C.075(3)(a). It may have the effect under subsection (1) (a) or
(b) of this section, or)); or
(c)
Except in the case of a rezone, the decision may be given the effect of a
final decision of the legislative body.
(3)
Each final decision of a hearing examiner shall be in writing and shall include
findings and conclusions, based on the record, to support the decision. Such
findings and conclusions shall also set forth the manner in which the decision
would carry out and conform to the city's comprehensive plan and the city's
development regulations. Each final decision of a hearing examiner, unless a
longer period is mutually agreed to in writing by the applicant and the hearing
examiner, shall be rendered within ten working days following conclusion of all
testimony and hearings.
Sec.
425. RCW
36.70.970 and 1994 c 257 s 9 are each amended to read as follows:
(1) As
an alternative to those provisions of this chapter relating to powers or duties
of the planning commission to hear and issue recommendations on applications
for plat approval and applications for amendments to the zoning ordinance, the
county legislative authority may adopt a hearing examiner system under which a
hearing examiner or hearing examiners may hear and issue decisions on proposals
for plat approval and for amendments to the zoning ordinance when the amendment
which is applied for is not of general applicability. In addition, the
legislative authority may vest in a hearing examiner the power to hear and
decide those issues it believes should be reviewed and decided by a hearing
examiner, including but not limited to:
(a)
Applications for conditional uses ((applications)), variances
((applications)), ((applications for)) shoreline permits,
or any other class of applications for or pertaining to development of land
or land use((s));
(b)
Appeals of administrative decisions or determinations; and
(c)
Appeals of administrative decisions or determinations pursuant to chapter
43.21C RCW.
The legislative
authority shall prescribe procedures to be followed by a hearing examiner.
Any
county which vests in a hearing examiner the authority to hear and decide
conditional uses and variances shall not be required to have a zoning adjuster
or board of adjustment.
(2)
Each county legislative authority electing to use a hearing examiner pursuant
to this section shall by ordinance specify the legal effect of the decisions
made by the examiner. ((Except as provided in subsection (2) of this
section,)) Such legal effect may vary for the different classes of
applications decided by the examiner but shall include one of the following:
(a)
The decision may be given the effect of a recommendation to the legislative
authority;
(b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative authority((.
(2)
The legislative authority may specify the legal effect of a hearing examiner's
procedural determination under the state environmental policy act, as defined
in RCW 43.21C.075(3)(a). It may have the effect under subsection (1) (a) or (b)
of this section, or)); or
(c)
Except in the case of a rezone, the decision may be given the effect of a
final decision of the legislative authority.
(3)
Each final decision of a hearing examiner shall be in writing and shall include
findings and conclusions, based on the record, to support the decision. Such
findings and conclusions shall also set forth the manner in which the decision
would carry out and conform to the county's comprehensive plan and the county's
development regulations. Each final decision of a hearing examiner, unless a
longer period is mutually agreed to in writing by the applicant and the hearing
examiner, shall be rendered within ten working days following conclusion of all
testimony and hearings.
Sec.
426. RCW
58.17.090 and 1981 c 293 s 5 are each amended to read as follows:
(1)
Upon receipt of an application for preliminary plat approval the administrative
officer charged by ordinance with responsibility for administration of
regulations pertaining to platting and subdivisions shall provide public
notice and set a date for a public hearing. Except as provided in
section 415 of this act, at a minimum, notice of the hearing shall be given
in the following manner:
(((1)))
(a) Notice shall be published not less than ten days prior to the
hearing in a newspaper of general circulation within the county and a newspaper
of general circulation in the area where the real property which is proposed to
be subdivided is located; and
(((2)))
(b) Special notice of the hearing shall be given to adjacent landowners
by any other reasonable method local authorities deem necessary. Adjacent
landowners are the owners of real property, as shown by the records of the
county assessor, located within three hundred feet of any portion of the
boundary of the proposed subdivision. If the owner of the real property which
is proposed to be subdivided owns another parcel or parcels of real property
which lie adjacent to the real property proposed to be subdivided, notice under
this subsection (1)(b) shall be given to owners of real property located
within three hundred feet of any portion of the boundaries of such adjacently
located parcels of real property owned by the owner of the real property
proposed to be subdivided.
(2)
All hearings shall be public. All hearing notices shall include a description
of the location of the proposed subdivision. The description may be in the
form of either a vicinity location sketch or a written description other than a
legal description.
Sec.
427. RCW
58.17.092 and 1988 c 168 s 12 are each amended to read as follows:
Any
notice made under chapter 58.17 or 36.-- (the new chapter created in section
431 of this act) RCW that identifies affected property may identify this
affected property without using a legal description of the property including,
but not limited to, identification by an address, written description, vicinity
sketch, or other reasonable means.
Sec.
428. RCW
58.17.100 and 1981 c 293 s 6 are each amended to read as follows:
If a
city, town or county has established a planning commission or planning agency
in accordance with state law or local charter, such commission or agency shall
review all preliminary plats and make recommendations thereon to the city, town
or county legislative body to assure conformance of the proposed subdivision to
the general purposes of the comprehensive plan and to planning standards and
specifications as adopted by the city, town or county. Reports of the planning
commission or agency shall be advisory only: PROVIDED, That the legislative
body of the city, town or county may, by ordinance, assign to such commission
or agency, or any department official or group of officials, such
administrative functions, powers and duties as may be appropriate, including
the holding of hearings, and recommendations for approval or disapproval of
preliminary plats of proposed subdivisions.
Such
recommendation shall be submitted to the legislative body not later than
fourteen days following action by the hearing body. Upon receipt of the
recommendation on any preliminary plat the legislative body shall at its next
public meeting set the date for the public meeting where it shall consider
the recommendations of the hearing body and may adopt or reject the
recommendations of such hearing body based on the record established at the
public hearing. If, after considering the matter at a public meeting, the
legislative body deems a change in the planning commission's or planning
agency's recommendation approving or disapproving any preliminary plat is
necessary, ((the change of the recommendation shall not be made until))
the legislative body shall ((conduct a public hearing and thereupon))
adopt its own recommendations and approve or disapprove the preliminary plat.
((Such public hearing may be held before a committee constituting a majority
of the legislative body. If the hearing is before a committee, the committee
shall report its recommendations on the matter to the legislative body for
final action.))
Every
decision or recommendation made under this section shall be in writing and
shall include findings of fact and conclusions to support the decision or
recommendation.
A
record of all public meetings and public hearings shall be kept by the
appropriate city, town or county authority and shall be open to public
inspection.
Sole
authority to approve final plats, and to adopt or amend platting ordinances
shall reside in the legislative bodies.
Sec.
429. RCW
58.17.330 and 1994 c 257 s 6 are each amended to read as follows:
(1) As
an alternative to those provisions of this chapter requiring a planning
commission to hear and issue recommendations for plat approval, the county or
city legislative body may adopt a hearing examiner system and shall specify by
ordinance the legal effect of the decisions made by the examiner. ((Except
as provided in subsection (2) of this section,)) The legal effect of
such decisions shall include one of the following:
(a)
The decision may be given the effect of a recommendation to the legislative
body;
(b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body; or
(c)
The decision may be given the effect of a final decision of the legislative
body.
The
legislative authority shall prescribe procedures to be followed by a hearing
examiner.
(2) ((The
legislative body shall specify the legal effect of a hearing examiner's
procedural determination under the state environmental policy act, as defined
in RCW 43.21C.075(3)(a). It may have the effect under subsection (1) (a) or
(b) of this section, or may be given the effect of a final decision of the
legislative body.
(3))) Each
final decision of a hearing examiner shall be in writing and shall include
findings and conclusions, based on the record, to support the decision. Each
final decision of a hearing examiner, unless a longer period is mutually agreed
to by the applicant and the hearing examiner, shall be rendered within ten
working days following conclusion of all testimony and hearings.
NEW
SECTION. Sec. 430. The
department of community, trade, and economic development shall provide training
and technical assistance to counties and cities to assist them in fulfilling
the requirements of chapter 36.-- RCW (the new chapter created in section 431
of this act).
NEW
SECTION. Sec. 431. Sections
401, 402, 404 through 407, 413 through 420, and 502 through 506 of this act
shall constitute a new chapter in Title 36 RCW.
NEW
SECTION. Sec. 432. RCW
36.70A.065 and 36.70A.440 are recodified as sections within the new chapter
created in section 431 of this act.
NEW
SECTION. Sec. 433. Sections
413 and 421 of this act shall expire June 30, 1998. The provisions of sections
413 and 421 of this act shall apply to project permit applications determined
to be complete pursuant to RCW 36.70A.440 (as recodified by this act) on or
before June 30, 1998.
PART V
- DEVELOPMENT AGREEMENTS
NEW
SECTION. Sec. 501. The
legislature finds that the lack of certainty in the approval of development
projects can result in a waste of public and private resources, escalate
housing costs for consumers and discourage the commitment to comprehensive
planning which would make maximum efficient use of resources at the least
economic cost to the public. Assurance to a development project applicant that
upon government approval the project may proceed in accordance with existing
policies and regulations, and subject to conditions of approval, all as set
forth in a development agreement, will strengthen the public planning process,
encourage private participation and comprehensive planning, and reduce the
economic costs of development. Further, the lack of public facilities and
services is a serious impediment to development of new housing and commercial
uses. Project applicants and local governments may include provisions and
agreements whereby applicants are reimbursed over time for financing public
facilities. It is the intent of the legislature by sections 502 through 506 of
this act to allow local governments and owners and developers of real property
to enter into development agreements.
NEW
SECTION. Sec. 502. (1) A
local government may enter into a development agreement with a person having
ownership or control of real property within its jurisdiction. A city may
enter into a development agreement for real property outside its boundaries as
part of a proposed annexation or a service agreement. A development agreement
must set forth the development standards and other provisions that shall apply
to and govern and vest the development, use, and mitigation of the development
of the real property for the duration specified in the agreement. A
development agreement shall be consistent with applicable development
regulations adopted by a local government planning under chapter 36.70A RCW.
(2)
Sections 501 through 504 of this act do not affect the validity of a contract
rezone, concomitant agreement, annexation agreement, or other agreement in
existence on the effective date of sections 501 through 504 of this act, or
adopted under separate authority, that includes some or all of the development
standards provided in subsection (3) of this section.
(3)
For the purposes of this section, "development standards" includes,
but is not limited to:
(a)
Project elements such as permitted uses, residential densities, and
nonresidential densities and intensities or building sizes;
(b)
The amount and payment of impact fees imposed or agreed to in accordance with
any applicable provisions of state law, any reimbursement provisions, other
financial contributions by the property owner, inspection fees, or dedications;
(c)
Mitigation measures, development conditions, and other requirements under
chapter 43.21C RCW;
(d)
Design standards such as maximum heights, setbacks, drainage and water quality
requirements, landscaping, and other development features;
(e)
Affordable housing;
(f)
Parks and open space preservation;
(g)
Phasing;
(h)
Review procedures and standards for implementing decisions;
(i) A
build-out or vesting period for applicable standards; and
(j)
Any other appropriate development requirement or procedure.
(4)
The execution of a development agreement is a proper exercise of county and
city police power and contract authority. A development agreement may obligate
a party to fund or provide services, infrastructure, or other facilities. A
development agreement shall reserve authority to impose new or different
regulations to the extent required by a serious threat to public health and
safety.
NEW
SECTION. Sec. 503. Unless
amended or terminated, a development agreement is enforceable during its term
by a party to the agreement. A development agreement and the development
standards in the agreement govern during the term of the agreement, or for all
or that part of the build-out period specified in the agreement, and may not be
subject to an amendment to a zoning ordinance or development standard or
regulation or a new zoning ordinance or development standard or regulation
adopted after the effective date of the agreement. A permit or approval issued
by the county or city after the execution of the development agreement must be
consistent with the development agreement.
NEW
SECTION. Sec. 504. A
development agreement shall be recorded with the real property records of the
county in which the property is located. During the term of the development
agreement, the agreement is binding on the parties and their successors,
including a city that assumes jurisdiction through incorporation or annexation
of the area covering the property covered by the development agreement.
NEW
SECTION. Sec. 505. A county
or city shall only approve a development agreement by ordinance or resolution
after a public hearing. The county or city legislative body or a planning
commission, hearing examiner, or other body designated by the legislative body
to conduct the public hearing may conduct the hearing. If the development
agreement relates to a project permit application, the provisions of chapter
36.-- RCW (sections 701 through 715 of this act) shall apply to the appeal of
the decision on the development agreement.
NEW
SECTION. Sec. 506. Nothing
in sections 501 through 505 of this act is intended to authorize local
governments to impose impact fees, inspection fees, or dedications or to
require any other financial contributions or mitigation measures except as
expressly authorized by other applicable provisions of state law.
PART VI
- STATE PERMIT COORDINATION
NEW
SECTION. Sec. 601. The
legislature hereby finds and declares:
(1)
Washington's environmental protection programs have established strict
standards to reduce pollution and protect the public health and safety and the
environment. The single-purpose programs instituted to achieve these standards
have been successful in many respects, and have produced significant gains in
protecting Washington's environment in the face of substantial population
growth.
(2)
Continued progress to achieve the environmental standards in the face of
continued population growth will require greater coordination between the
single-purpose environmental programs and more efficient operation of these
programs overall. Pollution must be prevented and controlled and not simply
transferred to another media or another place. This goal can only be achieved
by maintaining the current environmental protection standards and by greater
integration of the existing programs.
(3) As
the number of environmental laws and regulations have grown in Washington, so
have the number of permits required of business and government. This
regulatory burden has significantly added to the cost and time needed to obtain
essential permits in Washington. The increasing number of individual permits
and permit authorities has generated the continuing potential for conflict,
overlap, and duplication between the various state, local, and federal permits.
(4)
The purpose of this chapter is to institute new, efficient procedures that will
assist businesses and public agencies in complying with the environmental
quality laws in an expedited fashion, without reducing protection of public
health and safety and the environment.
(5)
Those procedures need to provide a permit process that promotes effective
dialogue and ensures ease in the transfer and clarification of technical
information, while preventing duplication. It is necessary that the procedures
establish a process for preliminary and ongoing meetings between the applicant,
the coordinating permit agency, and the participating permit agencies, but do
not preclude the applicant or participating permit agencies from individually
coordinating with each other.
(6) It
is necessary, to the maximum extent practicable, that the procedures
established in this chapter ensure that the coordinated permit agency process
and applicable permit requirements and criteria are integrated and run
concurrently, rather than consecutively.
(7) It
is necessary to provide a reliable and consolidated source of information
concerning federal, state, and local environmental and land use laws and
procedures that apply to any given proposal.
(8) It
is the intent of this chapter to provide an optional process by which a project
proponent may obtain active coordination of all applicable regulatory and
land-use permitting procedures. This process is not to replace individual
laws, or diminish the substantive decision-making role of individual
jurisdictions. Rather it is to provide predictability, administrative
consolidation, and, where possible, consolidation of appeal processes.
(9) It
is also the intent of this chapter to provide consolidated, effective, and
easier opportunities for members of the public to receive information and
present their views about proposed projects.
NEW
SECTION. Sec. 602. Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Center" means the permit assistance center established in the
commission by section 603 of this act.
(2)
"Coordinating permit agency" means the permit agency that has the
greatest overall jurisdiction over a project.
(3)
"Department" means the department of ecology.
(4)
"Participating permit agency" means a permit agency, other than the
coordinating permit agency, that is responsible for the issuance of a permit
for a project.
(5)
"Permit" means any license, certificate, registration, permit, or other
form of authorization required by a permit agency to engage in a particular
activity.
(6)
"Permit agency" means:
(a)
The department of ecology, an air pollution control authority, the department
of natural resources, the department of fish and wildlife, and the department
of health; and
(b)
Any other state or federal agency or county, city, or town that participates at
the request of the permit applicant and upon the agency's agreement to be
subject to this chapter.
(7)
"Project" means an activity, the conduct of which requires permits
from one or more permit agencies.
NEW
SECTION. Sec. 603. The
permit assistance center is established within the department. The center
shall:
(1)
Publish and keep current one or more handbooks containing lists and
explanations of all permit laws. The center shall coordinate with the business
assistance center in providing and maintaining this information to applicants
and others. To the extent possible, the handbook shall include relevant
federal and tribal laws. A state agency or local government shall provide a
reasonable number of copies of application forms, statutes, ordinances, rules,
handbooks, and other informational material requested by the center and shall
otherwise fully cooperate with the center. The center shall seek the
cooperation of relevant federal agencies and tribal governments;
(2)
Establish, and make known, a point of contact for distribution of the handbook
and advice to the public as to its interpretation in any given case;
(3)
Work closely and cooperatively with the business license center and the
business assistance center in providing efficient and nonduplicative service to
the public;
(4)
Seek the assignment of employees from the permit agencies listed under section
602(6)(a) of this act to serve on a rotating basis in staffing the center; and
(5)
Provide an annual report to the legislature on potential conflicts and
perceived inconsistencies among existing statutes. The first report shall be
submitted to the appropriate standing committees of the house of
representatives and senate by December 1, 1996.
NEW
SECTION. Sec. 604. (1) Not
later than January 1, 1996, the center shall establish by rule an
administrative process for the designation of a coordinating permit agency for
a project.
(2)
The administrative process shall consist of the establishment of guidelines for
designating the coordinating permit agency for a project. If a permit agency
is the lead agency for purposes of chapter 43.21C RCW, that permit agency shall
be the coordinating permit agency. In other cases, the guidelines shall
require that at least the following factors be considered in determining which
permit agency has the greatest overall jurisdiction over the project:
(a)
The types of facilities or activities that make up the project;
(b)
The types of public health and safety and environmental concerns that should be
considered in issuing permits for the project;
(c)
The environmental medium that may be affected by the project, the extent of
those potential effects, and the environmental protection measures that may be
taken to prevent the occurrence of, or to mitigate, those potential effects;
(d)
The regulatory activity that is of greatest importance in preventing or
mitigating the effects that the project may have on public health and safety or
the environment; and
(e)
The statutory and regulatory requirements that apply to the project and the
complexity of those requirements.
NEW
SECTION. Sec. 605. Upon the
request of a project applicant, the center shall appoint a project facilitator
to assist the applicant in determining which regulatory requirements,
processes, and permits may be required for development and operation of the
proposed project. The project facilitator shall provide the information to the
applicant and explain the options available to the applicant in obtaining the
required permits. If the applicant requests, the center shall designate a
coordinating permit agency as provided in section 606 of this act.
NEW
SECTION. Sec. 606. (1) A
permit applicant who requests the designation of a coordinating permit agency
shall provide the center with a description of the project, a preliminary list
of the permits that the project may require, the identity of any public agency
that has been designated the lead agency for the project pursuant to chapter
43.21C RCW, and the identity of the participating permit agencies. The center
may request any information from the permit applicant that is necessary to make
the designation under this section, and may convene a scoping meeting of the
likely coordinating permit agency and participating permit agencies in order to
make that designation.
(2)
The coordinating permit agency shall serve as the main point of contact for the
permit applicant with regard to the coordinated permit process for the project
and shall manage the procedural aspects of that processing consistent with
existing laws governing the coordinating permit agency and participating permit
agencies, and with the procedures agreed to by those agencies in accordance
with section 607 of this act. In carrying out these responsibilities, the coordinating
permit agency shall ensure that the permit applicant has all the information
needed to apply for all the component permits that are incorporated in the
coordinated permit process for the project, coordinate the review of those
permits by the respective participating permit agencies, ensure that timely
permit decisions are made by the participating permit agencies, and assist in
resolving any conflict or inconsistency among the permit requirements and
conditions that are to be imposed by the participating permit agencies with
regard to the project. The coordinating permit agency shall keep in contact
with the applicant as well as other permit agencies in order to assure that the
process is progressing as scheduled. The coordinating permit agency shall also
make contact, at least once, with any local jurisdiction that is responsible
for issuing a permit for the project if the local jurisdiction has not agreed
to be a participating permit agency as provided in section 602(6) of this act.
(3)
This chapter shall not be construed to limit or abridge the powers and duties
granted to a participating permit agency under the law that authorizes or
requires the agency to issue a permit for a project. Each participating permit
agency shall retain its authority to make all decisions on all nonprocedural
matters with regard to the respective component permit that is within its scope
of its responsibility, including, but not limited to, the determination of
permit application completeness, permit approval or approval with conditions,
or permit denial. The coordinating permit agency may not substitute its
judgment for that of a participating permit agency on any such nonprocedural
matters.
NEW
SECTION. Sec. 607. (1)
Within twenty-one days of the date that the coordinating permit agency is
designated, it shall convene a meeting with the permit applicant for the
project and the participating permit agencies. The meeting agenda shall
include at least all of the following matters:
(a) A
determination of the permits that are required for the project;
(b) A
review of the permit application forms and other application requirements of
the agencies that are participating in the coordinated permit process;
(c)(i)
A determination of the timelines that will be used by the coordinating permit
agency and each participating permit agency to make permit decisions, including
the time periods required to determine if the permit applications are complete,
to review the application or applications, and to process the component
permits. In the development of this timeline, full attention shall be given to
achieving the maximum efficiencies possible through concurrent studies,
consolidated applications, hearings, and comment periods. Except as provided
in (c)(ii) of this subsection, the timelines established under this subsection,
with the assent of the coordinating permit agency and each participating permit
agency, shall commit the coordinating permit agency and each participating
permit agency to act on the component permit within time periods that are
different than those required by other applicable provisions of law.
(ii)
An accelerated time period for the consideration of a permit application may
not be set if that accelerated time period would be inconsistent with, or in
conflict with, any time period or series of time periods set by statute for
that consideration, or with any statute, rule, or regulation, or adopted state
policy, standard, or guideline that requires any of the following:
(A) Other
agencies, interested persons, federally recognized Indian tribes, or the public
to be given adequate notice of the application;
(B)
Other agencies to be given a role in, or be allowed to participate in, the
decision to approve or disapprove the application; or
(C)
Interested persons or the public to be provided the opportunity to challenge,
comment on, or otherwise voice their concerns regarding the application;
(d)
The scheduling of any public hearings that are required to issue permits for
the project and a determination of the feasibility of coordinating or
consolidating any of those required public hearings; and
(e) A
discussion of fee arrangements for the coordinated permit process, including an
estimate of the costs allowed under section 610 of this act and the billing
schedule.
(2)
Each agency shall send at least one representative qualified to make decisions
concerning the applicability and timelines associated with all permits
administered by that jurisdiction. At the request of the applicant, the
coordinating permit agency shall notify any relevant federal agency or
federally recognized tribe of the date of the meeting and invite that agency's
participation in the process.
(3) If
a permit agency or the applicant foresees, at any time, that it will be unable
to meet its obligations under the agreement, it shall notify the coordinating
permit agency of the problem. The coordinating permit agency shall notify the
participating permit agencies and the applicant and, upon agreement of all parties,
adjust the schedule, or, if necessary, schedule another work plan meeting.
(4)
The coordinating permit agency may request any information from the applicant
that is necessary to comply with its obligations under this section, consistent
with the timelines set pursuant to this section.
(5) A
summary of the decisions made under this section shall be made available for
public review upon the filing of the coordinated permit process application or
permit applications.
NEW
SECTION. Sec. 608. (1) The
permit applicant may withdraw from the coordinated permit process by submitting
to the coordinating permit agency a written request that the process be
terminated. Upon receipt of the request, the coordinating permit agency shall
notify the center and each participating permit agency that a coordinated
permit process is no longer applicable to the project.
(2)
The permit applicant may submit a written request to the coordinating permit
agency that the permit applicant wishes a participating permit agency to
withdraw from participation on the basis of a reasonable belief that the
issuance of the coordinated permit process would be accelerated if the
participating permit agency withdraws. In that event, the participating permit
agency shall withdraw from participation if the coordinating permit agency
approves the request.
NEW
SECTION. Sec. 609. The
coordinating permit agency shall ensure that the participating permit agencies
make all the permit decisions that are necessary for the incorporation of the
permits into the coordinated permit process and act on the component permits
within the time periods established pursuant to section 607 of this act.
NEW
SECTION. Sec. 610. (1) The
coordinating permit agency may enter into a written agreement with the
applicant to recover from the applicant the reasonable costs incurred by the
coordinating permit agency in carrying out the requirements of this chapter.
(2) The
coordinating permit agency may recover only the costs of performing those
coordinated permit services and shall be negotiated with the permit applicant
in the meeting required pursuant to section 607 of this act. The billing
process shall provide for accurate time and cost accounting and may include a
billing cycle that provides for progress payments.
NEW
SECTION. Sec. 611. A
petition by the permit applicant for review of an agency action in issuing,
denying, or amending a permit, or any portion of a coordinating permit agency
permit, shall be submitted by the permit applicant to the coordinating permit
agency or the participating permit agency having jurisdiction over that permit
and shall be processed in accordance with the procedures of that permit
agency. Within thirty days of receiving the petition, the coordinating permit
agency shall notify the other environmental agencies participating in the
original coordinated permit process.
NEW
SECTION. Sec. 612. If an
applicant petitions for a significant amendment or modification to a
coordinated permit process application or any of its component permit
applications, the coordinating permit agency shall reconvene a meeting of the
participating permit agencies, conducted in accordance with section 607 of this
act.
NEW
SECTION. Sec. 613. If an
applicant fails to provide information required for the processing of the
component permit applications for a coordinated permit process or for the
designation of a coordinating permit agency, the time requirements of this
chapter shall be held in abeyance until such time as the information is
provided.
NEW
SECTION. Sec. 614. (1) The
center, by rule, shall establish an expedited appeals process by which a
petitioner or applicant may appeal any failure by a permit agency to take
timely action on the issuance or denial of a permit in accordance with the time
limits established under this chapter.
(2) If
the center finds that the time limits under appeal have been violated without
good cause, it shall establish a date certain by which the permit agency shall
act on the permit application with adequate provision for the requirements of
section 607(1)(c)(ii) (A) through (C) of this act, and provide for the full
reimbursement of any filing or permit processing fees paid by the applicant to
the permit agency for the permit application under appeal.
NEW
SECTION. Sec. 615. Nothing in
this chapter affects the jurisdiction of the energy facility site evaluation
council as provided in chapter 80.50 RCW.
NEW
SECTION. Sec. 616. By
December 1, 1997, the center shall submit a report to the appropriate
committees of both houses of the legislature detailing the following
information:
(1)
The number of instances in which a coordinating permit agency has been
requested and used, and the disposition of those cases;
(2)
The amount of time elapsed between an initial request by a permit applicant for
a coordinated permit process and the ultimate approval or disapproval of the
permits included in the process; and
(3)
The number of instances in which the expedited appeals process was requested,
and the disposition of those cases.
NEW
SECTION. Sec. 617. A new
section is added to chapter 43.131 RCW to read as follows:
The
permit assistance center and its powers and duties shall be terminated June 30,
1999, as provided in section 618 of this act.
NEW
SECTION. Sec. 618. A new
section is added to chapter 43.131 RCW to read as follows:
The following
acts or parts of acts, as now existing or hereafter amended, are each repealed,
effective June 30, 2000:
(1) RCW
90.--.--- and 1995 c -- s 601 (section 601 of this act);
(2) RCW
90.--.--- and 1995 c -- s 602 (section 602 of this act);
(3) RCW
90.--.--- and 1995 c -- s 603 (section 603 of this act);
(4) RCW
90.--.--- and 1995 c -- s 604 (section 604 of this act);
(5) RCW
90.--.--- and 1995 c -- s 605 (section 605 of this act);
(6) RCW
90.--.--- and 1995 c -- s 606 (section 606 of this act);
(7) RCW
90.--.--- and 1995 c -- s 607 (section 607 of this act);
(8) RCW
90.--.--- and 1995 c -- s 608 (section 608 of this act);
(9) RCW
90.--.--- and 1995 c -- s 609 (section 609 of this act);
(10) RCW
90.--.--- and 1995 c -- s 610 (section 610 of this act);
(11) RCW
90.--.--- and 1995 c -- s 611 (section 611 of this act);
(12) RCW
90.--.--- and 1995 c -- s 612 (section 612 of this act);
(13) RCW
90.--.--- and 1995 c -- s 613 (section 613 of this act);
(14) RCW
90.--.--- and 1995 c -- s 614 (section 614 of this act);
(15) RCW
90.--.--- and 1995 c -- s 615 (section 615 of this act); and
(16) RCW
90.--.--- and 1995 c -- s 616 (section 616 of this act).
NEW
SECTION. Sec. 619. The
following acts or parts of acts are each repealed:
(1)
RCW 90.62.010 and 1982 c 179 s 1, 1977 c 54 s 1, & 1973 1st ex.s. c 185 s
1;
(2)
RCW 90.62.020 and 1994 c 264 s 96, 1988 c 36 s 71, 1977 c 54 s 2, & 1973
1st ex.s. c 185 s 2;
(3)
RCW 90.62.030 and 1973 1st ex.s. c 185 s 3;
(4)
RCW 90.62.040 and 1990 c 137 s 1, 1977 c 54 s 3, & 1973 1st ex.s. c 185 s
4;
(5)
RCW 90.62.050 and 1977 c 54 s 4 & 1973 1st ex.s. c 185 s 5;
(6)
RCW 90.62.060 and 1982 c 179 s 2, 1977 c 54 s 5, & 1973 1st ex.s. c 185 s
6;
(7)
RCW 90.62.070 and 1973 1st ex.s. c 185 s 7;
(8) RCW
90.62.080 and 1987 c 109 s 156, 1977 c 54 s 6, & 1973 1st ex.s. c 185 s 8;
(9)
RCW 90.62.090 and 1977 c 54 s 7 & 1973 1st ex.s. c 185 s 9;
(10)
RCW 90.62.100 and 1977 c 54 s 8 & 1973 1st ex.s. c 185 s 10;
(11)
RCW 90.62.110 and 1973 1st ex.s. c 185 s 11;
(12)
RCW 90.62.120 and 1973 1st ex.s. c 185 s 12;
(13)
RCW 90.62.130 and 1977 c 54 s 9;
(14)
RCW 90.62.900 and 1973 1st ex.s. c 185 s 13;
(15)
RCW 90.62.901 and 1973 1st ex.s. c 185 s 14;
(16)
RCW 90.62.904 and 1973 1st ex.s. c 185 s 15;
(17)
RCW 90.62.905 and 1973 1st ex.s. c 185 s 16;
(18)
RCW 90.62.906 and 1973 1st ex.s. c 185 s 18;
(19)
RCW 90.62.907 and 1973 1st ex.s. c 185 s 19; and
(20)
RCW 90.62.908 and 1977 c 54 s 10.
NEW
SECTION. Sec. 620. Sections
601 through 616 of this act shall constitute a new chapter in Title 90 RCW.
PART
VII - APPEALS
NEW
SECTION. Sec. 701. This
chapter may be known and cited as the land use petition act.
NEW
SECTION. Sec. 702. The
purpose of this chapter is to reform the process for judicial review of land
use decisions made by local jurisdictions, by establishing uniform, expedited
appeal procedures and uniform criteria for reviewing such decisions, in order
to provide consistent, predictable, and timely judicial review.
NEW
SECTION. Sec. 703. Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Land use decision" means a final determination by a local
jurisdiction's body or officer with the highest level of authority to make the
determination, including those with authority to hear appeals, on:
(a) An
application for a project permit or other governmental approval required by law
before real property may be improved, developed, modified, sold, transferred,
or used, but excluding applications for permits or approvals to use, vacate, or
transfer streets, parks, and similar types of public property; excluding
applications for legislative approvals such as area‑wide rezones and
annexations; and excluding applications for business licenses;
(b) An
interpretative or declaratory decision regarding the application to a specific
property of zoning or other ordinances or rules regulating the improvement,
development, modification, maintenance, or use of real property; and
(c)
The enforcement by a local jurisdiction of ordinances regulating the
improvement, development, modification, maintenance, or use of real property.
However, when a local jurisdiction is required by law to enforce the ordinances
in a court of limited jurisdiction, a petition may not be brought under this
chapter.
(2)
"Local jurisdiction" means a county, city, or incorporated town.
(3)
"Person" means an individual, partnership, corporation, association,
public or private organization, or governmental entity or agency.
NEW
SECTION. Sec. 704. (1) This
chapter replaces the writ of certiorari for appeal of land use decisions and
shall be the exclusive means of judicial review of land use decisions, except
that this chapter does not apply to:
(a)
Judicial review of:
(i)
Land use decisions made by bodies that are not part of a local jurisdiction;
(ii)
Land use decisions of a local jurisdiction that are subject to review by a
quasi‑judicial body created by state law, such as the shorelines hearings
board or the growth management hearings board;
(b)
Judicial review of applications for a writ of mandamus or prohibition; or
(c)
Claims provided by any law for monetary damages or compensation. If one or
more claims for damages or compensation are set forth in the same complaint
with a land use petition brought under this chapter, the claims are not subject
to the procedures and standards, including deadlines, provided in this chapter
for review of the petition. The judge who hears the land use petition may, if
appropriate, preside at a trial for damages or compensation.
(2)
The superior court civil rules govern procedural matters under this chapter to
the extent that the rules are consistent with this chapter.
NEW
SECTION. Sec. 705. (1)
Proceedings for review under this chapter shall be commenced by filing a land
use petition in superior court.
(2) A
land use petition is barred, and the court may not grant review, unless the
petition is timely filed with the court and timely served on the following
persons who shall be parties to the review of the land use petition:
(a)
The local jurisdiction, which for purposes of the petition shall be the
jurisdiction's corporate entity and not an individual decision maker or
department;
(b)
Each of the following persons if the person is not the petitioner:
(i)
Each person identified by name and address in the local jurisdiction's written
decision as an applicant for the permit or approval at issue; and
(ii)
Each person identified by name and address in the local jurisdiction's written
decision as an owner of the property at issue;
(c) If
no person is identified in a written decision as provided in (b) of this
subsection, each person identified by name and address as a taxpayer for the
property at issue in the records of the county assessor, based upon the
description of the property in the application; and
(d)
Each person named in the written decision who filed an appeal to a local
jurisdiction quasi‑judicial decision maker regarding the land use
decision at issue, unless the person has abandoned the appeal or the person's
claims were dismissed before the quasi‑judicial decision was rendered.
Persons who later intervened or joined in the appeal are not required to be
made parties under this subsection.
(3)
The petition is timely if it is filed and served on all parties listed in
subsection (2) of this section within twenty‑one days of the issuance of
the land use decision.
(4)
For the purposes of this section, the date on which a land use decision is
issued is:
(a)
Three days after a written decision is mailed by the local jurisdiction or, if
not mailed, the date on which the local jurisdiction provides notice that a
written decision is publicly available;
(b) If
the land use decision is made by ordinance or resolution by a legislative body
sitting in a quasi‑judicial capacity, the date the body passes the
ordinance or resolution; or
(c) If
neither (a) nor (b) of this subsection applies, the date the decision is
entered into the public record.
(5)
Service on the local jurisdiction must be by delivery of a copy of the petition
to the persons identified by or pursuant to RCW 4.28.080 to receive service of
process. Service on other parties must be in accordance with the superior
court civil rules or by first class mail to:
(a) The
address stated in the written decision of the local jurisdiction for each
person made a party under subsection (2)(b) of this section;
(b)
The address stated in the records of the county assessor for each person made a
party under subsection (2)(c) of this section; and
(c)
The address stated in the appeal to the quasi‑judicial decision maker for
each person made a party under subsection (2)(d) of this section.
(6)
Service by mail is effective on the date of mailing and proof of service shall
be by affidavit or declaration under penalty of perjury.
NEW
SECTION. Sec. 706. If the
applicant for the land use approval is not the owner of the real property at
issue, and if the owner is not accurately identified in the records referred to
in section 705(2) (b) and (c) of this act, the applicant shall be responsible
for promptly securing the joinder of the owners. In addition, within fourteen
days after service each party initially named by the petitioner shall disclose
to the other parties the name and address of any person whom such party knows
may be needed for just adjudication of the petition, and the petitioner shall
promptly name and serve any such person whom the petitioner agrees may be
needed for just adjudication. If such a person is named and served before the
initial hearing, leave of court for the joinder is not required, and the
petitioner shall provide the newly joined party with copies of the pleadings
filed before the party's joinder. Failure by the petitioner to name or serve,
within the time required by section 705(3) of this act, persons who are needed
for just adjudication but who are not identified in the records referred to in
section 705(2)(b) of this act, or in section 705(2)(c) of this act if
applicable, shall not deprive the court of jurisdiction to hear the land use
petition.
NEW
SECTION. Sec. 707. Standing
to bring a land use petition under this chapter is limited to the following
persons:
(1)
The applicant and the owner of property to which the land use decision is
directed;
(2)
Another person aggrieved or adversely affected by the land use decision, or who
would be aggrieved or adversely affected by a reversal or modification of the
land use decision. A person is aggrieved or adversely affected within the
meaning of this section only when all of the following conditions are present:
(a)
The land use decision has prejudiced or is likely to prejudice that person;
(b)
That person's asserted interests are among those that the local jurisdiction
was required to consider when it made the land use decision;
(c) A
judgment in favor of that person would substantially eliminate or redress the
prejudice to that person caused or likely to be caused by the land use
decision; and
(d)
The petitioner has exhausted his or her administrative remedies to the extent
required by law.
NEW
SECTION. Sec. 708. A land
use petition must set forth:
(1)
The name and mailing address of the petitioner;
(2)
The name and mailing address of the petitioner's attorney, if any;
(3)
The name and mailing address of the local jurisdiction whose land use decision
is at issue;
(4)
Identification of the decision‑making body or officer, together with a
duplicate copy of the decision, or, if not a written decision, a summary or
brief description of it;
(5)
Identification of each person to be made a party under section 705(2) (b)
through (d) of this act;
(6)
Facts demonstrating that the petitioner has standing to seek judicial review
under section 707 of this act;
(7) A
separate and concise statement of each error alleged to have been committed;
(8) A
concise statement of facts upon which the petitioner relies to sustain the
statement of error; and
(9) A
request for relief, specifying the type and extent of relief requested.
NEW
SECTION. Sec. 709. (1) Within
seven days after the petition is served on the parties identified in section
705(2) of this act, the petitioner shall note, according to the local rules of
superior court, an initial hearing on jurisdictional and preliminary matters.
This initial hearing shall be set no sooner than thirty-five days and no later
than fifty days after the petition is served on the parties identified in
section 705(2) of this act.
(2)
The parties shall note all motions on jurisdictional and procedural issues for
resolution at the initial hearing, except that a motion to allow discovery may
be brought sooner. Where confirmation of motions is required, each party shall
be responsible for confirming its own motions.
(3)
The defenses of lack of standing, untimely filing or service of the petition,
and failure to join persons needed for just adjudication are waived if not
raised by timely motion noted to be heard at the initial hearing, unless the
court allows discovery on such issues.
(4)
The petitioner shall move the court for an order at the initial hearing that
sets the date on which the record must be submitted, sets a briefing schedule,
sets a discovery schedule if discovery is to be allowed, and sets a date for
the hearing or trial on the merits.
(5)
The parties may waive the initial hearing by scheduling with the court a date
for the hearing or trial on the merits and filing a stipulated order that
resolves the jurisdictional and procedural issues raised by the petition,
including the issues identified in subsections (3) and (4) of this section.
(6) A
party need not file an answer to the petition.
NEW
SECTION. Sec. 710. The court
shall provide expedited review of petitions filed under this chapter. The
matter must be set for hearing within sixty days of the date set for submitting
the local jurisdiction's record, absent a showing of good cause for a different
date or a stipulation of the parties.
NEW
SECTION. Sec. 711. (1) A
petitioner or other party may request the court to stay or suspend an action by
the local jurisdiction or another party to implement the decision under
review. The request must set forth a statement of grounds for the stay and the
factual basis for the request.
(2) A
court may grant a stay only if the court finds that:
(a)
The party requesting the stay is likely to prevail on the merits;
(b)
Without the stay the party requesting it will suffer irreparable harm;
(c)
The grant of a stay will not substantially harm other parties to the
proceedings; and
(d)
The request for the stay is timely in light of the circumstances of the case.
(3)
The court may grant the request for a stay upon such terms and conditions,
including the filing of security, as are necessary to prevent harm to other
parties by the stay.
NEW
SECTION. Sec. 712. (1)
Within forty‑five days after entry of an order to submit the record, or
within such a further time as the court allows or as the parties agree, the
local jurisdiction shall submit to the court a certified copy of the record for
judicial review of the land use decision, except that the petitioner shall
prepare at the petitioner's expense and submit a verbatim transcript of any
hearings held on the matter.
(2) If
the parties agree, or upon order of the court, the record shall be shortened or
summarized to avoid reproduction and transcription of portions of the record
that are duplicative or not relevant to the issues to be reviewed by the court.
(3)
The petitioner shall pay the local jurisdiction the cost of preparing the
record before the local jurisdiction submits the record to the court. Failure
by the petitioner to timely pay the local jurisdiction relieves the local
jurisdiction of responsibility to submit the record and is grounds for
dismissal of the petition.
(4) If
the relief sought by the petitioner is granted in whole or in part the court
shall equitably assess the cost of preparing the record among the parties. In
assessing costs the court shall take into account the extent to which each
party prevailed and the reasonableness of the parties' conduct in agreeing or
not agreeing to shorten or summarize the record under subsection (2) of this
section.
NEW
SECTION. Sec. 713. (1) When
the land use decision being reviewed was made by a quasi‑judicial body or
officer who made factual determinations in support of the decision and the
parties to the quasi-judicial proceeding had an opportunity consistent with due
process to make a record on the factual issues, judicial review of factual
issues and the conclusions drawn from the factual issues shall be confined to
the record created by the quasi‑judicial body or officer, except as
provided in subsections (2) through (4) of this section.
(2)
For decisions described in subsection (1) of this section, the record may be
supplemented by additional evidence only if the additional evidence relates to:
(a)
Grounds for disqualification of a member of the body or of the officer that
made the land use decision, when such grounds were unknown by the petitioner at
the time the record was created;
(b)
Matters that were improperly excluded from the record after being offered by a
party to the quasi‑judicial proceeding; or
(c)
Matters that were outside the jurisdiction of the body or officer that made the
land use decision.
(3)
For land use decisions other than those described in subsection (1) of this
section, the record for judicial review may be supplemented by evidence of
material facts that were not made part of the local jurisdiction's record.
(4)
The court may require or permit corrections of ministerial errors or
inadvertent omissions in the preparation of the record.
(5)
The parties may not conduct pretrial discovery except with the prior permission
of the court, which may be sought by motion at any time after service of the
petition. The court shall not grant permission unless the party requesting it
makes a prima facie showing of need. The court shall strictly limit discovery
to what is necessary for equitable and timely review of the issues that are
raised under subsections (2) and (3) of this section. If the court allows the
record to be supplemented, the court shall require the parties to disclose
before the hearing or trial on the merits the specific evidence they intend to
offer. If any party, or anyone acting on behalf of any party, requests records
under chapter 42.17 RCW relating to the matters at issue, a copy of the request
shall simultaneously be given to all other parties and the court shall take
such request into account in fashioning an equitable discovery order under this
section.
NEW
SECTION. Sec. 714. (1) The
superior court, acting without a jury, shall review the record and such
supplemental evidence as is permitted under section 713 of this act. The court
may grant relief only if the party seeking relief has carried the burden of
establishing that one of the standards set forth in (a) through (f) of this
subsection has been met. The standards are:
(a)
The body or officer that made the land use decision engaged in unlawful
procedure or failed to follow a prescribed process, unless the error was
harmless;
(b)
The land use decision is an erroneous interpretation of the law, after allowing
for such deference as is due the construction of a law by a local jurisdiction
with expertise;
(c)
The land use decision is not supported by evidence that is substantial when
viewed in light of the whole record before the court;
(d)
The land use decision is a clearly erroneous application of the law to the
facts;
(e)
The land use decision is outside the authority or jurisdiction of the body or
officer making the decision; or
(f)
The land use decision violates the constitutional rights of the party seeking
relief.
(2) In
order to grant relief under this chapter, it is not necessary for the court to
find that the local jurisdiction engaged in arbitrary and capricious conduct.
A grant of relief by itself may not be deemed to establish liability for
monetary damages or compensation.
NEW
SECTION. Sec. 715. The court
may affirm or reverse the land use decision under review or remand it for
modification or further proceedings. If the decision is remanded for
modification or further proceedings, the court may make such an order as it
finds necessary to preserve the interests of the parties and the public,
pending further proceedings or action by the local jurisdiction.
Sec.
716. RCW
7.16.360 and 1989 c 175 s 38 are each amended to read as follows:
This
chapter does not apply to state agency action reviewable under chapter 34.05
RCW or to land use decisions of local jurisdictions reviewable under chapter
36.-- RCW (sections 701 through 715 of this act).
Sec.
717. RCW
58.17.180 and 1983 c 121 s 5 are each amended to read as follows:
Any
decision approving or disapproving any plat shall be reviewable ((for
unlawful, arbitrary, capricious or corrupt action or nonaction by writ of
review before the superior court of the county in which such matter is
pending. Standing to bring the action is limited to the following parties:
(1)
The applicant or owner of the property on which the subdivision is proposed;
(2)
Any property owner entitled to special notice under RCW 58.17.090;
(3)
Any property owner who deems himself aggrieved thereby and who will suffer
direct and substantial impacts from the proposed subdivision.
Application
for a writ of review shall be made to the court within thirty days from any
decision so to be reviewed. The cost of transcription of all records ordered
certified by the court for such review shall be borne by the appellant)) under
chapter 36.-- RCW (sections 701 through 715 of this act).
NEW
SECTION. Sec. 718. A new
section is added to chapter 4.84 RCW to read as follows:
(1)
Notwithstanding any other provisions of this chapter, reasonable attorneys’
fees and costs shall be awarded to the prevailing party or substantially
prevailing party on appeal before the court of appeals or the supreme court of
a decision by a county, city, or town to issue, condition, or deny a
development permit involving a site-specific rezone, zoning, plat, conditional
use, variance, shoreline permit, building permit, site plan, or similar land
use approval or decision. The court shall award and determine the amount of
reasonable attorneys’ fees and costs under this section if:
(a)
The prevailing party on appeal was the prevailing or substantially prevailing
party before the county, city, or town, or in a decision involving a
substantial development permit under chapter 90.58 RCW, the prevailing party on
appeal was the prevailing party or the substantially prevailing party before
the shoreline hearings board; and
(b)
The prevailing party on appeal was the prevailing party or substantially
prevailing party in all prior judicial proceedings.
(2) In
addition to the prevailing party under subsection (1) of this section, the
county, city, or town whose decision is on appeal is considered a prevailing
party if its decision is upheld at superior court and on appeal.
NEW
SECTION. Sec. 719. Sections
701 through 715 of this act shall constitute a new chapter in Title 36 RCW.
PART
VIII - STUDY
NEW
SECTION. Sec. 801. The land
use study commission is hereby established. The commission’s goal shall be the
integration and consolidation of the state’s land use and environmental laws
into a single, manageable statute. In fulfilling its responsibilities, the
commission shall evaluate the effectiveness of the growth management act, the
state environmental policy act, the shoreline management act, and other state
land use, planning, environmental, and permitting statutes in achieving their
stated goals.
NEW
SECTION. Sec. 802. The
commission shall consist of not more than fourteen members. Eleven members of
the commission shall be appointed by the governor. Membership shall reflect
the interests of business, agriculture, labor, the environment, neighborhood
groups, other citizens, the legislature, cities, counties, and federally
recognized Indian tribes. Members shall have substantial experience in matters
relating to land use and environmental planning and regulation, and shall have
the ability to work toward cooperative solutions among diverse interests. The
director of the department of community, trade, and economic development, or
the director’s designee, shall be a member and shall serve as chair of the
commission. The director of the department of ecology, or the director’s
designee, and the secretary of the department of transportation, or the
secretary's designee, shall also be members of the commission. Staff for the
commission shall be provided by the department of community, trade, and
economic development, with additional staff to be provided by other state
agencies and the legislature, as may be required. State agencies shall provide
the commission with information and assistance as needed.
NEW
SECTION. Sec. 803. The
commission shall convene commencing June 1, 1995, and shall complete its
work by June 30, 1998. The commission shall submit a report to the governor
and the legislature stating its findings, conclusions, and recommendations not
later than November 1 of each year. The commission shall submit its final
report to the governor and the legislature not later than November 1, 1997.
NEW
SECTION. Sec. 804. The
commission shall:
(1)
Consider the effectiveness of state and local government efforts to consolidate
and integrate the growth management act, the state environmental policy act,
the shoreline management act, and other land use, planning, environmental, and
permitting laws.
(2)
Identify the revisions and modifications needed in state land use, planning,
and environmental law and practice to adequately plan for growth and achieve
economically and environmentally sustainable development, to adequately assess
environmental impacts of comprehensive plans, development regulations, and
growth, and to reduce the time and cost of obtaining project permits.
(3)
Draft a consolidated land use procedure, following these guidelines:
(a)
Conduct land use planning through the comprehensive planning process under
chapter 36.70A RCW rather than through review of individual projects;
(b)
Involve diverse sectors of the public in the planning process. Early and
informal environmental analysis should be incorporated into planning and
decision making;
(c)
Recognize that different questions need to be answered and different levels of
detail applied at each planning phase, from the initial development of plan
concepts or plan elements to implementation programs;
(d)
Integrate and combine to the fullest extent possible the processes, analysis,
and documents currently required under chapters 36.70A and 43.21C RCW, so that
subsequent plan decisions and subsequent implementation will incorporate measures
to promote the environmental, economic, and other goals and to mitigate
undesirable or unintended adverse impacts on a community's quality of life;
(e)
Focus environmental review and the level of detail needed for different stages
of plan and project decisions on the environmental considerations most relevant
to that stage of the process;
(f)
Avoid duplicating review that has occurred for plan decisions when specific
projects are proposed;
(g)
Use environmental review on projects to: (i) Review and document consistency
with comprehensive plans and development regulations; (ii) provide prompt and
coordinated review by agencies, tribes, and the public on compliance with
applicable environmental laws and plans, including mitigation for site specific
project impacts that have not been considered and addressed at the plan or
development regulation level; and (iii) ensure accountability by local
government to applicants and the public for requiring and implementing
mitigation measures;
(h)
Maintain or improve the quality of environmental analysis both for plan and for
project decisions, while integrating these analyses with improved state and
local planning and permitting processes;
(i)
Examine existing land use and environmental permits for necessity and utility.
To the extent possible, existing permits should be combined into fewer permits,
assuring that the values and principles intended to be protected by those
permits remain protected; and
(j)
Consolidate local government appeal processes to allow a single appeal of
permits at local government levels, a single state level administrative appeal,
and a final judicial appeal.
(4)
Monitor instances state-wide of the vesting of project permit applications
during the period that an appeal is pending before a growth management hearings
board, as authorized under RCW 36.70A.300. The commission shall also review
the extent to which such vesting results in the approval of projects that are
inconsistent with a comprehensive plan or development regulation provision
ultimately found to be in compliance with a board's order or remand. The
commission shall analyze the impact of such approvals on ensuring the
attainment of the goals and policies of chapter 36.70A RCW, and make
recommendations to the governor and the legislature on statutory changes to
address any adverse impacts from the provisions of RCW 36.70A.300. The
commission shall provide an initial report on its findings and recommendations
by November 1, 1995, and submit its further findings and recommendations
subsequently in the reports required under section 803 of this act.
(5)
Monitor local government consolidated permit procedures and the effectiveness
of the timelines established by section 413 of this act. The commission shall
include in its report submitted to the governor and the legislature on November
1, 1997, its recommendation about what timelines, if any, should be imposed on
the local government consolidated permit process required by chapter 36.-- RCW
(the new chapter created in section 431 of this act).
(6)
Evaluate funding mechanisms that will enable local governments to pay for and
recover the costs of conducting integrated planning and environmental
analysis. The commission shall include its conclusions in its first report to
the legislature on November 1, 1995, and include any recommended statutory
changes.
(7)
Study, in cooperation with the state board for registration of professional
engineers and the state building code council, ways in which state agencies and
local governments could authorize professionals with appropriate qualifications
to certify a project's compliance with certain state and local land use and
environmental requirements. The commission shall report to the legislature on
measures necessary to implement such a system of professional certification.
These
guidelines are intended to guide the work of the commission, without limiting
its charge to integrate and consolidate Washington's land use and environmental
laws into a single, manageable statutory framework.
NEW
SECTION. Sec. 805. Members
of the commission shall be reimbursed for travel expenses as provided in RCW
43.03.050 and 43.03.060.
NEW
SECTION. Sec. 806. Sections
801 through 805 of this act shall expire June 30, 1998.
PART IX
- MISCELLANEOUS
NEW
SECTION. Sec. 901. 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. 902. Part
headings and the table of contents as used in this act do not constitute any
part of the law.
NEW
SECTION. Sec. 903. If
specific funding for the purposes of this act, referencing this act by bill
number, is not provided by June 30, 1995, in the omnibus appropriations act,
this act shall be null and void.
NEW SECTION. Sec. 904. Sections
801 through 806 of this act are 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 June 1, 1995.
