House Bill Analysis

ESB 5185

Title:An act relating to growth management hearings boards.

Brief Description:Revises procedures for growth management hearings boards.

Sponsors:Senators Horn, McCaslin, Long, Benton, Prince and Deccio.

Hearing Date:April 2, 1997

Background:

     In 1990, the Legislature enacted the Growth Management Act (GMA) to coordinate comprehensive land use planning.  Under the GMA, each county uses a procedure that is agreed to by the cities and the county to adopt a county-wide planning policy.  This policy establishes a "framework" from which the county and cities in the county develop and adopt comprehensive plans, which must be consistent with the county-wide planning policy.  The GMA requires counties to address certain issues in the comprehensive plan (land use, housing, capital facilities plan, utilities, rural designation, transportation), and the GMA requires counties to protect critical areas, designate and conserve certain natural resource lands, and designate urban growth areas.  Finally, each county and city adopts development regulations consistent with its comprehensive plan.

     The GMA created an administrative review process consisting of three regional growth management hearings boards (boards) to resolve disputes over comprehensive plans and development regulations.  The boards hear requests for review of growth management actions taken by counties and cities located in each of the regions the boards represent if a person with standing to request the review files a petition challenging a county or city's action.  The boards do not consider matters outside of the detailed statement of issues presented for review. 

     If the board finds that the actions reviewed are not in compliance with the GMA's requirements, the board issues an order to the affected agency, county or city requiring it to take action within a maximum of 180 days to bring it into compliance.  After the 180-day period has expired, the board holds a second hearing (known as a compliance hearing) to determine if the agency, county or city has come into compliance.  If the board finds that an agency, county, or city has not fixed the problems identified at the first hearing (i.e., is still not in compliance), the board must transmit its findings to the Governor and may recommend that sanctions be imposed.  Comprehensive plans and development regulations are presumed to be valid under the GMA.  A board finding of invalidity requires  a determination that the comprehensive plan or regulations "substantially interfere with the fulfillment of the goals" of the GMA.

     In addition to considering whether the comprehensive plan or development regulations are in compliance with the GMA, the boards may also hear and determine petitions alleging that the 20-year growth management planning population projections adopted by the Office of Financial Management should be adjusted.  The boards may adjust a growth management population projection after considering the implications of an adjustment on the population forecast for the entire state.  If a county growth management planning population projection is adjusted by a board, it becomes known as the "board adjusted population projection" and can only be used for planning purposes.

     Any party aggrieved by a final decision of the board may appeal the decision to superior court as provided in the Administrative Procedure Act (APA).  Under the APA, the trial court is limited to considering the following issues:

Cwhether an agency's action is supported by substantial evidence;

Cwhether an agency's action was arbitrary or capricious;

Cwhether an action was outside the statutory authority or jurisdiction of the agency;

Cwhether an agency engaged in unlawful procedure or failed to follow a prescribed procedure; or

Cwhether the agency erroneously interpreted or applied the law. 

Under the APA, if a court reviews a matter that lies within agency discretion, the court may only consider whether the agency has exercised its discretion in accordance with law and cannot substitute its discretion for that of the agency.  If the court finds that an agency exceeded its discretion, it must remand the matter to the agency for modification unless remand is "impracticable" or would "cause unnecessary delay."

     After reviewing an agency action, a trial court must enter an order containing findings and conclusions with respect to each violation or error by the agency.  The court may do any one of the following:

Caffirm the agency action;

Corder an agency to take action required by law;

Corder an agency to exercise discretion required by law;

Cset aside an agency action;

Cenjoin or stay an agency action;

Cremand the matter for further proceedings; or

Center a declaratory judgment order.

Summary of Bill:

     Hearing examiners may only make findings of fact, not conclusions of law, if assisting a growth management hearings board (board) in hearing cases before the board.

     A board may mediate or provide for mediation of disputes between counties or cities over whether their comprehensive plans are coordinated or consistent.

     A board is no longer authorized to determine whether a state agency is in compliance with GMA requirements, or whether the Office of Financial Management population forecasts should be adjusted.  A board may determine whether a county or city planning under the GMA has met deadlines imposed by the GMA; whether a city or county has addressed relevant issues associated with required actions under the GMA; whether a county or city comprehensive plan is coordinated or consistent with the comprehensive plan of another county or city; or whether a city or county shoreline master program or amendment is in compliance with the relevant statutes.  The board then renders a decision, not a final order.

     A party aggrieved by a board=s final decision may appeal the decision directly to the Court of Appeals.  The court=s chief presiding officer will assign the appeal to the appropriate panel.

     In determining whether a county or city has addressed relevant issues, the board may not consider the adequacy of the actions taken by the county or city.  The board does not determine the validity or invalidity of a county or city=s comprehensive plan or development regulations.

     Any person may file a petition alleging a county or city has not met GMA deadlines.  However, only a person with the required standing under the State Environmental Policy Act (SEPA) may challenge a SEPA or shoreline master program action by a city or county.

     Petitions challenging a city=s or county=s failure to address relevant issues associated with an action required under the GMA, or whether comprehensive plans are coordinated or consistent, must be filed within 60 days after publication by the city or county.  Petitions alleging that a county or city has not met GMA deadlines may be filed at any time.

     Notice requirements relating to the approval or disapproval of a local government=s shoreline master program or amendment are deleted.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.