BP BHEAD INT S

AN ACT Relating to judicial review of land use decisions; amending RCW 7.16.360 and 58.17.180; adding a new section to chapter 4.84 RCW; and adding a new chapter to Title 36 RCW.

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

NEW SECTION. Sec. 1. This chapter may be known and cited as the land use petition act. A petition brought under this chapter must be called a land use petition.

NEW SECTION. Sec. 2. 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. 3. 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 development 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 streets, parks, and similar types of public property and excluding applications for legislative approvals such as area-wide rezones and annexations;

(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the development, modification, maintenance, or use of real property; and

(c) The enforcement of ordinances regulating the 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 town, or special purpose district as defined in RCW 36.96.010.

(3) "Person" means an individual, partnership, corporation, association, public or private organization, or governmental agency.

NEW SECTION. Sec. 4. (1) This chapter replaces the writ of certiorari for judicial review of local jurisdictions' land use decisions.

(2) This chapter does not apply to judicial review procedures established by other laws, including, but not limited to judicial review of:

(a) Land use decisions made by bodies that are not part of a local jurisdiction;

(b) 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;

(d) Applications for a writ of certiorari or mandamus.

(3) 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 procedures and standards, including deadlines, provided in this chapter for review of the petition do not apply to the claims for damages or compensation. The judge who hears the land use petition may, if appropriate, preside at a trial for damages or compensation.

(4) The court rules govern procedural matters under this chapter to the extent that the rules are consistent with this chapter.

NEW SECTION. Sec. 5. (1) A party's agreement is a waiver of the right to petition under this chapter for judicial review of the matters agreed to, when:

(a) The agreement is made as provided in RCW 82.02.020; or

(b) For matters outside the scope of RCW 82.02.020, the agreement is made as part of a written contract with the local jurisdiction.

(2) In all other instances, waiver is determined in accordance with common law principles.

NEW SECTION. Sec. 6. (1) Proceedings for review under this chapter must 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 parties:

(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; and

(b) Each of the following, if not the petitioner:

(i) Any person identified by name and address in the local jurisdiction's written decision as an applicant for the permit or approval at issue or as a property owner of the property at issue;

(ii) If no person is named in the decision as provided in (b)(i) of this subsection, any such person identified in the application for a permit or approval at issue; and

(iii) Any person who filed an appeal to a 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. Any person who later intervened or joined in the appeal is not required to be made a party 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, a land use decision is issued on the date on which a written decision is mailed or if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available. However, if written notification is not required to be provided, the decision is issued on the later of:

(a) The date that the decision is made at a public meeting; or

(b) The date that 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 agent designated by the local jurisdiction pursuant to RCW 4.28.080 to receive service of process. Service on other parties must be in accordance with the civil rules or, for parties who provided an address to the local jurisdiction during a quasi-judicial proceeding regarding the land use decision at issue, service may be by deposit in the United States mail to the address. Service by mail is effective on the date of mailing. Proof of service must be evidence by affidavit.

NEW SECTION. Sec. 7. Standing to bring a land use petition under this chapter, and to intervene in a proceeding under this chapter, is limited to the following parties:

(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, and who will suffer direct and substantial impacts from the decision, reversal, or modification.

NEW SECTION. Sec. 8. (1) A petitioner shall set forth in a land use petition:

(a) The name and mailing address of the petitioner;

(b) The name and mailing address of the petitioner's attorney, if any;

(d) 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;

(e) Identification of persons who were named petitioners or appellants in any quasi-judicial proceedings regarding the land use decision at issue;

(f) Facts demonstrating that the petitioner is entitled to seek judicial review;

(g) A separate and concise statement of each error alleged to have been committed;

(h) A concise statement of facts upon which the petitioner relies to sustain the statement of error; and

(i) A request for relief, specifying the type and extent of relief requested.

(2) Along with the petition, the petitioner shall file and serve an order to show cause why the petition should not be granted. The order must set the date for hearing no sooner than ten days, and no later than twenty days, after filing and service of the petition on all parties is completed.

(3) At the hearing on the order to show cause, the court shall:

(a) Determine:

(i) Whether the petition was timely filed and served. If the court finds it was untimely, the court shall deny judicial review;

(ii) Whether there are reasons why review should not be granted, including, but not limited to: Improper service; lack of standing; failure to join an indispensable party; and failure of the petition to comply with subsection (1) of this section. However, the defenses of lack of standing and failure to join an indispensable party may be raised later, as provided by the court rules; and

(iii) The estimated cost of preparing the record;

(b) Enter an order:

(i) Setting the date by which the petitioner shall pay the estimated cost of preparing the record to the local jurisdiction;

(ii) Setting a later date by which the local jurisdiction's record, including the transcript, must be submitted;

(iii) Framing the factual and legal issues to be decided;

(iv) Setting the date for hearing the matter; and

(v) Resolving other issues that may be resolved at this stage of the proceeding in order to provide for expeditious and orderly review.

The parties may waive the hearing on the order to show cause by filing a stipulated order setting forth the matters listed in this subsection.

NEW SECTION. Sec. 9. The court shall provide expedited review of petitions filed under this chapter. If judicial review is granted, 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 compelling reasons for a different date or a stipulation of the parties.

NEW SECTION. Sec. 10. (1) A petitioner for judicial review of a land use decision may request the court to stay or suspend an action by the local jurisdiction or another party to implement the decision under review, by including the request in the petition. The request must set forth a statement of grounds for the stay and the factual basis for the request. The court shall rule on the request at the hearing on the order to show cause.

(2) Another party to the judicial review proceedings may request a stay by making a motion in accordance with the court rules. The motion must be filed with the party's first pleading in the matter.

(3) The court shall deny a request for a stay that is made after the times required by subsections (1) and (2) of this section unless the party requesting the stay establishes that the reasons justifying the stay did not exist, or could not have been discovered, at the times set forth in subsections (1) and (2) of this section.

(4) 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; and

(5) The court may grant the request for a stay upon such terms and conditions, such as the filing of security, as are necessary to prevent harm to other parties from the stay.

NEW SECTION. Sec. 11. (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 and submit a verbatim transcript of any hearings held on the matter.

(2) The petitioner shall pay the local jurisdiction the estimated costs of preparing the record as determined by the court at the show cause hearing. A failure by the petitioner to timely pay the local jurisdiction as ordered relieves the local jurisdiction of the responsibility to prepare and submit the record and is grounds for dismissal of the petition.

(3) The court in its final judgment may assess the actual costs of preparing the record against the petitioner if the relief sought by the petitioner is substantially denied, and may assess the costs against and among the local jurisdiction and other parties of record if the relief sought by the petitioner is substantially granted.

(4) The court may require or permit corrections of errors or omissions in the record.

NEW SECTION. Sec. 12. (1) If the land use decision being reviewed was made by a quasi-judicial body or officer who was making factual determinations and the parties had the opportunity to make a record on the factual issues, judicial review of factual issues, and the conclusions drawn from the factual issues, must be confined to the record created by the quasi-judicial body or officer, except as provided in 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) Disputed factual issues regarding the authority or jurisdiction of the body or officer that made the land use decision;

(b) Grounds for disqualification of a member of the body or of the officer that made the land use decision;

(d) Matters that were improperly excluded from the record after being offered by a party to the quasi-judicial proceeding; or

(e) 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 required to be made part of the local jurisdiction's record.

(4) The parties may not conduct civil discovery except with the prior permission of the court. The court may 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 under this chapter. Requests made under chapter 42.17 RCW for records relating to the matters at issue must be treated as requests for civil discovery and must meet the requirements of this section and the court rules.

NEW SECTION. Sec. 13. (1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70B.100. 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), (b), and (c) of this subsection have been met. The standards are:

(a) The party seeking relief has been substantially prejudiced as a result of the claimed error or errors, and:

(i) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process;

(ii) The land use decision under review is a clearly erroneous interpretation or application of the law, in light of the law's purpose; or

(iii) The land use decision under review is not supported by substantial evidence;

(b) The land use decision under review was outside the authority or jurisdiction of the body or officer making the decision; and

(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 is not equivalent to a finding of liability for monetary damages or compensation.

NEW SECTION. Sec. 14. The court may affirm or reverse the land use decision under review, modify it, or remand it for modification or further proceedings. If the decision is remanded for modification or further proceedings, the court may make the 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. 15. 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 the land use decisions of local jurisdictions reviewable under chapter 36.-- RCW (sections 1 through 14 of this act).

Sec. 16. 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~~)) under chapter 36.-- RCW (sections 1 through 14 of this act) by 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.))

NEW SECTION. Sec. 17. 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 local government, 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. 18. Sections 1 through 14 of this act constitute a new chapter in Title 36 RCW.

NEW SECTION. Sec. 19. 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.