AN ACT Relating to
limitations on growth management hearings board discretion; and amending RCW
36.70A.270, 36.70A.280, 36.70A.300, 36.70.320; adding a new section to chapter
36.70A RCW; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 36.70A.270 and 1994
c 257 s 1 are each amended to read as follows:
Each growth ((planning))
management hearings board shall be governed by the following rules on
conduct and procedure:
(1) Any board member
may be removed for inefficiency, malfeasance, and misfeasance in office, under
specific written charges filed by the governor. The governor shall transmit
such written charges to the member accused and the chief justice of the supreme
court. The chief justice shall thereupon designate a tribunal composed of
three judges of the superior court to hear and adjudicate the charges. Removal
of any member of a board by the tribunal shall disqualify such member for
reappointment.
(2) Each board member
shall receive reimbursement for travel expenses incurred in the discharge of
his or her duties in accordance with RCW 43.03.050 and 43.03.060. If it is
determined that the review boards shall operate on a full-time basis, each
member shall receive an annual salary to be determined by the governor pursuant
to RCW 43.03.040. If it is determined that a review board shall operate on a
part-time basis, each member shall receive compensation pursuant to RCW
43.03.250, provided such amount shall not exceed the amount that would be set
if they were a full-time board member. The principal office of each board
shall be located by the governor within the jurisdictional boundaries of each
board. The boards shall operate on either a part-time or full-time basis, as
determined by the governor.
(3) Each board member
shall not: (a) Be a candidate for or hold any other public office or trust;
(b) engage in any occupation or business interfering with or inconsistent with
his or her duty as a board member; and (c) for a period of one year after the
termination of his or her board membership, act in a representative capacity
before the board on any matter.
(4) A majority of each
board shall constitute a quorum for making orders or decisions, adopting rules
necessary for the conduct of its powers and duties, or transacting other
official business, and may act even though one position of the board is
vacant. One or more members may hold hearings and take testimony to be
reported for action by the board when authorized by rule or order of the
board. The board shall perform all the powers and duties specified in this
chapter or as otherwise provided by law.
(5) The board may
appoint one or more hearing examiners to assist the board in its hearing
function, to make conclusions of law and findings of fact and, if requested by
the board, to make recommendations to the board for decisions in cases before
the board. Such hearing examiners must have demonstrated knowledge of land use
planning and law. The boards shall specify in their joint rules of practice
and procedure, as required by subsection (7) of this section, the procedure and
criteria to be employed for designating hearing examiners as a presiding
officer. Hearing examiners selected by a board shall meet the requirements of
subsection (3) of this section. The findings and conclusions of the hearing
examiner shall not become final until they have been formally approved by the board.
This authorization to use hearing examiners does not waive the requirement of
RCW 36.70A.300 that final orders be issued within one hundred eighty days of
board receipt of a petition.
(6) Each board shall
make findings of fact and prepare a written decision in each case decided by
it, and such findings and decision shall be effective upon being signed by two
or more members of the board and upon being filed at the board's principal
office, and shall be open for public inspection at all reasonable times.
(7) All proceedings
before the board, any of its members, or a hearing examiner appointed by the
board shall be conducted in accordance with such administrative rules of
practice and procedure as the boards jointly prescribe. All three boards shall
jointly meet to develop and adopt joint rules of practice and procedure,
including rules regarding expeditious and summary disposition of appeals. The
boards shall publish such rules and decisions they render and arrange
for the reasonable distribution of the rules and decisions. Except
as it conflicts with provisions of this chapter, the administrative
procedure act, chapter 34.05 RCW, shall govern the ((administrative rules of))
practice and procedure ((adopted by)) of the boards.
(8) A board member or
hearing examiner is subject to disqualification ((for bias, prejudice,
interest, or any other cause for which a judge is disqualified)) under
chapter 34.05 RCW. The joint rules of practice of the boards shall
establish procedures by which a party to a hearing conducted before the board
may file with the board a motion to disqualify, with supporting affidavit,
against a board member or hearing examiner assigned to preside at the hearing.
(9) The members of the
boards shall meet jointly on at least an annual basis with the objective of
sharing information that promotes the goals and purposes of this chapter.
Sec. 2. RCW 36.70A.280 and 1995
c 347 s 108 are each amended to read as follows:
(1) A growth management
hearings board shall hear and determine only those petitions alleging either:
(a) That a state
agency, county, or city planning under this chapter is not in compliance with
the requirements of this chapter, chapter 90.58 RCW as it relates to the
adoption of shoreline master programs or amendments thereto, or chapter 43.21C
RCW as it relates to plans, development regulations, or amendments, adopted
under RCW 36.70A.040 or chapter 90.58 RCW; or
(b) That the
twenty-year growth management planning population projections adopted by the
office of financial management pursuant to RCW 43.62.035 should be adjusted.
(2) A petition may be
filed only by: (a) The state, or a county or city that plans
under this chapter((,)); (b) a person who has ((either
appeared)) participated orally or in writing before the county or
city regarding the matter on which a review is being requested ((or));
(c) a person who is certified by the governor within sixty days of filing
the request with the board((,)); or (d) a person qualified
pursuant to RCW 34.05.530.
(3) For purposes of
this section "person" means any individual, partnership, corporation,
association, state agency, governmental subdivision or unit thereof, or
public or private organization or entity of any character.
(4) When considering a
possible adjustment to a growth management planning population projection
prepared by the office of financial management, a board shall consider the
implications of any such adjustment to the population forecast for the entire
state.
The rationale for any
adjustment that is adopted by a board must be documented and filed with the
office of financial management within ten working days after adoption.
If adjusted by a board,
a county growth management planning population projection shall only be used for
the planning purposes set forth in this chapter and shall be known as a
"board adjusted population projection". None of these changes shall
affect the official state and county population forecasts prepared by the
office of financial management, which shall continue to be used for state
budget and planning purposes.
Sec. 3. RCW 36.70A.300 and 1995
c 347 s 110 are each amended to read as follows:
(1) The board shall
issue a final order within one hundred eighty days of receipt of the petition
for review, or, when multiple petitions are filed, within one hundred eighty
days of receipt of the last petition that is consolidated. Such a final order shall
be based exclusively on whether or not a state agency, county, or city is in
compliance with the requirements of this chapter, chapter 90.58 RCW as it
relates to adoption or amendment of shoreline master programs, or chapter
43.21C RCW as it relates to plans, development regulations, and amendments
thereto, adopted under RCW 36.70A.040 or chapter 90.58 RCW. In the final
order, the board shall either: (a) Find that the state agency, county, or city
is in compliance with the requirements of this chapter or chapter 90.58 RCW as
it relates to the adoption or amendment of shoreline master programs; or (b)
find that the state agency, county, or city is not in compliance with the
requirements of this chapter or chapter 90.58 RCW as it relates to the adoption
or amendment of shoreline master programs, in which case the board shall remand
the matter to the affected state agency, county, or city and specify a
reasonable time not in excess of one hundred eighty days within which the state
agency, county, or city shall comply with the requirements of this chapter.
(2) A finding of
noncompliance and an order of remand shall not affect the validity of
comprehensive plans and development regulations during the period of remand((,
unless the board's)). In addition, the board may issue a determination
of invalidity as part of its final order ((also)) of
noncompliance which shall:
(a) Include((s))
a determination, supported by findings of fact and conclusions of law, that the
continued validity of the plan or regulation would substantially interfere with
the fulfillment of the goals of this chapter; and
(b) ((Specifies))
Specify the particular part or parts of the plan or regulation that are
determined to be invalid, the geographic area or areas where the
determination of invalidity is applicable, if appropriate, and the reasons
for their invalidity.
(3) A determination of
invalidity shall((:
(a))) not take effect until at least ninety days
after the determination of invalidity was made, during which period the board shall
review the progress of the county or city. If, after holding a hearing on the
matter, the board finds that the county or city is making substantial progress
toward adopting a plan or regulations or taking other actions under this
chapter, relating to the order, that would not be determined to be invalid
under subsection (2) of this section, the board shall extend the ninety-day
period for a reasonable period and continue its jurisdiction over the matter.
If, after holding a hearing on the matter, the board finds that substantial
progress is not being made, the board shall enter an order effectuating the
determination of invalidity. The hearing must be held prior to the ninetieth
day. Another hearing shall be held prior to the end of any extension granted
by the board. Any order effectuating the determination of invalidity shall be
prospective in effect and shall not extinguish rights that ((vested)) vest
under state or local law before or after the date of the board's order((;
and
(b) Subject)) effectuating the determination of
invalidity. Any order effectuating the determination of invalidity shall not
affect the validity of the comprehensive plan, development regulations, or
other actions taken under this chapter, except that any ((development))
application for the division of land under chapter 58.17 RCW, in any
geographic area or areas where the determination of invalidity is applicable,
that would otherwise vest after the date of the board's order effectuating
the determination of invalidity, shall vest to the local ordinance or
resolution that ((both is enacted in response to the order of remand and
determined by the board pursuant to RCW 36.70A.330 to comply with the
requirements of this chapter)) the county or city adopts in response to
the order effectuating the determination of invalidity after the board
determines that the response would not be invalidated under subsection (2) of
this section. Boundary line adjustments that do not increase the number of
lots are not affected by an order effectuating a determination of invalidity.
The board shall hold a hearing before removing the order effectuating its
determination of invalidity.
(4) ((If the
ordinance that adopts a plan or development regulation under this chapter
includes a savings clause intended to revive prior policies or regulations in
the event the new plan or regulations are determined to be invalid, the board
shall determine under subsection (2) of this section whether the prior policies
or regulations are valid during the period of remand.)) A county or city
for which a determination of invalidity was made prior to the effective date of
this act may petition the board for a stay of the determination of invalidity,
based on a showing under the procedures of subsection (3) of this section that
it is making substantial progress toward adopting a plan or development
regulations, or taking other actions under this chapter, relating to the order,
that would not otherwise be declared invalid under subsection (2) of this
section. After holding a hearing, the board shall enter an order rescinding,
staying, modifying, or continuing the prior determination of invalidity.
(5) Any party aggrieved
by a final decision of the hearings board may appeal the decision to superior
court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final
order of the board. The court shall conduct an independent review of the
board's legal conclusions.
NEW SECTION. Sec.
4. A new section is added
to chapter 36.70A RCW to read as follows:
The court shall provide
expedited review of a determination of invalidity or an order effectuating a
determination of invalidity made or issued under RCW 36.70A.300. The matter
must be set for hearing within sixty days of the date set for submitting the
board's record, absent a showing of good cause for a different date or a
stipulation of the parties.
Sec. 5. RCW 36.70A.320 and 1995
c 347 s 111 are each amended to read as follows:
(1)(a) Except as
provided in subsection (2) of this section, designations, comprehensive
plans ((and)), development regulations, and other actions
required by this chapter, and amendments thereto, adopted under this
chapter are presumed valid upon adoption. In any petition under this chapter,
the board, after full consideration of the petition, shall determine whether
there is compliance with the requirements of this chapter. In recognition
of the broad range of discretion that may be exercised by counties and cities
consistent with the requirements of this chapter, the board shall not
substitute its judgment for that of a county or city regarding the exercise of
such discretion. In making its determination, the board shall consider the
criteria adopted by the department under RCW 36.70A.190(4). The board has
no discretion to prioritize, balance, or rank the goals set forth in RCW
36.70A.020, all of which shall be used by counties and cities as provided in
RCW 36.70A.020.
(b) The burden of
proof shall be on the petitioner. The board shall find compliance unless
it finds ((by a preponderance of the evidence that the state agency, county,
or city erroneously interpreted or applied this chapter)) that: (i) The
state agency, county, or city erroneously interpreted this chapter; or (ii) the
action of the state agency, county, or city is not supported by evidence that
is substantial when reviewed in light of the whole record before the board.
(2) The shoreline
element of a comprehensive plan and the applicable development regulations
adopted by a county or city shall take effect as provided in chapter 90.58 RCW.
NEW SECTION. Sec.
6. If any provision of this
act or its application to any person or circumstance is held invalid, the remainder
of the act or the application of the provision to other persons or
circumstances is not affected.
NEW
SECTION. Sec. 7. This act is necessary for
the immediate preservation of the public peace, health, or safety, or support
of the state government and its existing public institutions, and shall take
effect immediately.
