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.
*Sec. 3
was vetoed. See message at end of chapter.
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.
*Sec. 5
was vetoed. See message at end of chapter.
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.
Note: Governor's explanation of partial veto
is as follows:
"I am returning herewith, without my
approval as to sections 3 and 5, Substitute Senate Bill No. 6637 entitled:
"AN ACT
Relating to limitations on growth management hearings board discretion;"
Substitute Senate Bill No. 6637 clarifies the
statutes dealing with the Growth Management Hearings Boards.
Sections 1 and 2 of this bill are simple
clarifications of current law governing board actions and are not
controversial. Section 4 provides for expedited judicial review of board
actions in cases in which a board issues a determination of invalidity and such
a determination is appealed. While the authority of the legislature to direct
the courts to expedite review is not clear, it is reasonable to encourage
prompt consideration by the courts of such board actions within their civil
dockets given the significant impacts that may be involved in the invalidation
of local land use ordinances.
Section 3 of this bill has two major
elements, one changing provisions regarding invalidity, the other addressing
how courts should review board decisions.
The legislature acted in 1995 to respond to
uncertainty regarding the vesting status of projects in jurisdictions in which
boards had found comprehensive plans or development regulations out of
compliance with the Growth Management Act. Prior to 1995, there was concern
that the result might be an effective moratorium on development. The
legislature provided that projects vest under a local land use statute, even if
it has been found out of compliance, unless and until a board issues a
determination of invalidity. Such a determination must meet a higher standard
than is needed to find noncompliance. For a board to issue a determination of
invalidity, it must find that the continued validity of the plan or regulation
would "substantially interfere with the fulfillment of the goals" of
the act. After a determination of invalidity, new projects vest under whatever
ordinance is eventually adopted in compliance with the act.
Since this change in 1995, there has been
significant controversy regarding the use of this authority by the boards.
Some have argued that boards have used the authority to respond to repeated
refusal by a small minority of local governments to pass statutes that complied
with the act. Others have argued that the use of this power has created
temporary chaos rather than greater certainty and that the use of this power
has altered the "bottom up" nature of growth planning. The legislature
responded by revisiting the 1995 sections in this bill.
Substitute Senate Bill No. 6637 requires that
when a board makes a determination of invalidity, it must specify the
provisions to which the determination would apply and must wait ninety days
before effectuating the order. Additional time must be granted to the local
government if it is making "substantial progress" toward adopting a
plan or regulations.
During this period, all projects vest to the
local ordinance which has been found to substantially interfere with
fulfillment of the goals of the act. After this period, the board may issue an
order effectuating the determination of invalidity. When such an order is
issued, it provides that divisions of land vest to new ordinances ultimately
found in compliance by the boards. Other development continues to vest to the
provisions which have been found invalid by the boards, until new ordinances
have been enacted. The concept that projects should vest to provisions of law
that substantially interfere with fulfillment of the goals of the act is not
wise.
This was an honest attempt to develop a
compromise in a difficult area of the law. I commend the legislature for its
efforts, but as drafted, Substitute Senate Bill No. 6637 is not without
significant flaws.
To permit vesting to a plan or regulation
that has been found to substantially interfere with fulfillment of the goals of
the act is an incentive for local governments to continue to remain out of
compliance with legitimate board orders. Despite the local nature of growth
planning, the act reflects statewide concerns. The boards are intended to
ensure that local solutions remain within the requirements and goals of the
act. If board determinations are ignored, the boards are nothing more than a
time‑consuming annoyance on the way to court. Meanwhile traffic congestion
worsens, sprawl continues, air quality degrades, habitat is lost, the public's
ability to pay for infrastructure is strained and frustration mounts.
The section also provides that in appeals of
Growth Management Hearing Board decisions, the court is to conduct an
independent review of the board's legal conclusions. It is unclear whether
this merely clarifies the current court practice of independently reviewing the
actions of quasi‑judicial boards as to their legal conclusions or whether
it directs the courts to grant no deference to the board's specialized
expertise. At best, this lack of clarity makes the court's task in reviewing
board decisions more difficult than would already be the case. At worst, these
provisions render the decisions of the boards meaningless and prolong the
resolution of underlying dispute.
I am aware of criticism of a few board
actions, but in the vast majority of the appeals brought to the boards, they
have been successful in achieving prompt resolution of the issues in dispute.
The boards were established to resolve difficult land use planning disputes,
including those between local governments, to reflect regional differences, to
bring more expertise to these issues, and to resolve issues more quickly than
court action would require.
I believe that this provision is a message by
the legislature to the boards directing them to use discretion in their
authority to invalidate local ordinances. I echo this message. There are some
situations in which local actions are so far out of compliance with the
requirements and goals of the act that severe action is appropriate. However,
overuse of this authority will only serve to weaken both the authority of the
boards and the act itself.
I am requesting that the Land Use Study
Commission, established in 1995, make recommendations to the 1997 Legislature
and to the governor proposing how to clarify and simplify the law in this
area. Such recommendations should propose how to establish greater certainty
in local growth planning and encourage local planning and actions to comply
with the requirements and goals of the Growth Management Act.
Section 5 of Substitute Senate Bill No. 6637
recognizes the broad range of discretion that may be exercised by local
governments under the Growth Management Act. In the act, the legislature
specified a set of goals and a related series of procedural and substantive
requirements towards achieving them. While requiring compliance, the
legislature recognized the diversity of the state and the power inherent in
local land use decision‑making. Consistent with these requirements, local
governments retain broad discretion.
However, local discretion must be exercised
in a manner that is consistent with the requirements of the act. The boards
have the difficult responsibility of interpreting the legislative meaning of
the act in specific local disputes without substituting their judgment for that
of local governments. This is among the most difficult challenges facing the
boards and local governments.
Section 5 of this bill states that the boards
are not to prioritize, balance or rank the goals of the Growth Management Act.
This provision appears to prevent the boards from evaluating whether local
governments have been guided by the goals or whether, in meeting the
requirements of the act, they have reflected the value content of the goals.
Such a limitation would reduce the boards to a purely procedural role. If this
provision were to become law, most local disputes would require court action for
resolution. The boards can only function effectively if they have the
authority, when resolving disputes, to ensure that local governments are
complying with the requirements and not substantially interfering with
fulfillment of the goals of the act.
This section also clarifies that in cases
heard by Growth Management Hearings Boards, the burden of proof is on the
petitioner. This principle was understood at the establishment of the boards.
The boards have adopted rules which include this standard.
Section 5 of Substitute Senate Bill No. 6637
clarifies the standard of review to be used by the boards to judge cases. In
matters of law, the bill directs the boards to find compliance unless they find
that a state agency or local government erroneously interpreted the chapter.
In issues of fact, compliance is to be found if the action of the state agency
or local government is not supported by evidence that is substantial when
reviewed in light of the whole record before the board.
In reviewing legal questions, the boards must
determine whether local governments have been right or wrong in their legal
interpretation of the provisions of the Growth Management Act as evidenced by
their application of the act. The standard for reviewing questions of fact
directs the boards to defer somewhat to local governments as long as they
present enough evidence to allow a reasonable person to act. This is similar to
the direction by the boards to local governments to "show your work",
stating that local governments deserve deference if they establish a rational
basis for making complex land use decisions.
I believe the boards should grant deference
to local governments in how they plan for growth consistent with the
requirements and goals of the act. Local comprehensive plans and development
regulations require local governments to balance priorities and options for
action in full consideration of local circumstances. While the act requires
that local action take place within a state framework, the local land use
process is not aimed at perfection but at allowing local communities to make
choices about their future.
The legislature attempted to clarify the
standard that boards must use to resolve disputes between local governments and
affected parties. With one exception, I believe that they succeeded. However,
the prohibition against board action regarding the goals of the act appears to
prevent the boards from ensuring that the goals have their intended effect. I
cannot approve this. After six years, implementation of the act is forcing us
again to consider how to maintain local control within a framework of state
goals and requirements. In many jurisdictions, plans have been adopted and
many are fully involved in implementing their plans. In these jurisdictions,
we can see the results of good planning. But in some jurisdictions, the
distance between traditional development patterns and practices and the
dramatic changes required by the act have divided communities and resulted in
angry disputes between local governments and the boards.
People acting in good faith have come to very
different conclusions about how best to manage growth. The state must revisit
the issue of how to resolve these disputes. I am requesting that the Land Use
Study Commission make recommendations to the legislature and to the governor
regarding improvements to our dispute resolution structure.
For these reasons, I have vetoed sections 3
and 5 of Substitute Senate Bill No. 6637.
With the exception of
sections 3 and 5, Substitute Senate Bill No. 6637 is approved."
