AN
ACT Relating to growth management hearings boards; amending RCW 36.70A.270,
36.70A.280, 36.70A.290, 36.70A.295, 36.70A.300, 36.70A.310, 36.70A.320, and
36.70A.340; adding a new section to chapter 36.70A RCW; recodifying RCW
36.70A.340; and repealing RCW 36.70A.330.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
36.70A.270 and 1997 c 429 s 11 are each amended to read as follows:
Each
growth 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)) Each 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)) decisions be made within one hundred
eighty days of board receipt of a petition. Each board may mediate disputes
between counties or cities, over whether their comprehensive plans are
coordinated or consistent, by using one or more of its own members, hiring
staff to provide mediation, or contracting for the provision of mediation.
(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 specific provisions of this
chapter, the administrative procedure act, chapter 34.05 RCW, and specifically
including the provisions of RCW 34.05.455 governing ex parte communications,
shall govern the practice and procedure of the boards.
(8)
A board member or hearing examiner is subject to disqualification 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 1996 c 325 s 2 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)) the shoreline master programs or amendments thereto;
(b)
That a county or city planning under this chapter has not taken an action
required under this chapter by the time the action is required to have been
taken; ((or
(b))) (c)
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)) a county or city has not addressed relevant issues
associated with an action required to be taken under this chapter;
(d)
That the comprehensive plan of a county or city adopted under this chapter is
not coordinated with, or consistent with, the comprehensive plan of another
county or city, as required under RCW 36.70A.100; or
(e)
That the shoreline master program or amendment thereto, or chapter 43.21C RCW
as it relates thereto, are not in compliance with the requirements of chapter
90.58 RCW.
(2)
A petition alleging that a county or city has not addressed issues
associated with an action required under this chapter, or that the
comprehensive plan of a county or city is not coordinated with or consistent
with another comprehensive plan as required under RCW 36.70A.100, may be
filed only by: (a) The state, or a county or city that plans under this
chapter; (b) a person who has participated orally or in writing before the
county or city regarding the matter on which a review is being requested; (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. A
petition alleging that a county or city has not taken an action required under
this chapter, by the time such action is required to have been taken, may be
filed by any person. A petition alleging that the shoreline master program or
amendments thereto, or chapter 43.21C RCW as it relates thereto, may be filed
by a person with standing under chapter 43.21C RCW.
(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.290 and 1997 c 429 s 12 are each 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. The board shall render written
decisions articulating the basis for its holdings. The board shall not issue
advisory opinions on issues not presented to the board in the statement of issues,
as modified by any prehearing order.
(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)) authority of the county or city. All petitions
relating to whether or not a county or city has addressed relevant issues
associated with an action required under this chapter must be filed within
sixty days after publication by the legislative authority of the county or
city. All petitions relating to whether or not comprehensive plans are
coordinated or consistent, as required under RCW 36.70A.100, must be filed
within sixty days after publication by the legislative authority of the county
or city adopting or amending its comprehensive plan that is alleged not to be
coordinated or consistent with another comprehensive plan. Petitions relating
to whether a county or city has not taken an action required under this chapter
by the time such action is required to have been taken may be filed at any
time.
(((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, or the parties have filed an agreement to
have the case heard in superior court as provided in RCW 36.70A.295, 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((,))
or 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.
4. RCW
36.70A.295 and 1997 c 429 s 13 are each amended to read as follows:
(1)
The superior court may directly review a petition for review filed under RCW
36.70A.290 if all parties to the proceeding before the board have agreed to
direct review in the superior court. The agreement of the parties shall be in
writing and signed by all of the parties to the proceeding or their designated
representatives. ((The agreement shall include the parties' agreement to
proper venue as provided in RCW 36.70A.300(5).)) The parties shall file
their agreement with the board within ten days after the date the petition is
filed, or if multiple petitions have been filed and the board has consolidated
the petitions pursuant to RCW 36.70A.300, within ten days after the board
serves its order of consolidation.
(2)
Within ten days of receiving the timely and complete agreement of the parties,
the board shall file a certificate of agreement with the designated superior
court and shall serve the parties with copies of the certificate. The superior
court shall obtain exclusive jurisdiction over a petition when it receives the
certificate of agreement. With the certificate of agreement the board shall
also file the petition for review, any orders entered by the board, all other
documents in the board's files regarding the action, and the written agreement
of the parties.
(3)
For purposes of a petition that is subject to direct review, the superior
court's subject matter jurisdiction shall be equivalent to that of the board.
Consistent with the requirements of the superior court civil rules, the
superior court may consolidate a petition subject to direct review under this
section with a separate action filed in the superior court.
(4)(a)
Except as otherwise provided in (b) and (c) of this subsection, the provisions
of RCW 36.70A.280 through 36.70A.330, which specify the nature and extent of
board review, shall apply to the superior court's review.
(b)
The superior court:
(i)
Shall not have jurisdiction to directly review or modify an office of financial
management population projection;
(ii)
Except as otherwise provided in RCW 36.70A.300(((2)(b))), shall render
its decision on the petition within one hundred eighty days of receiving the
certification of agreement; and
(iii)
Shall give a compliance hearing under RCW 36.70A.330(2) the highest priority of
all civil matters before the court.
(c)
An aggrieved party may secure appellate review of a final judgment of the
superior court under this section by the supreme court or the court of
appeals. The review shall be secured in the manner provided by law for review
of superior court decisions in other civil cases.
(5)
If, following a compliance hearing, the court finds that the state agency,
county, or city is not in compliance with the court's prior order, the court
may use its remedial and contempt powers to enforce compliance.
(6)
The superior court shall transmit a copy of its decision and order on direct
review to the board, the department, and the governor. If the court has
determined that a county or city is not in compliance with the provisions of
this chapter, the governor may impose sanctions against the county or city in
the same manner as if a board had recommended the imposition of sanctions as
provided in RCW 36.70A.330.
(7)
After the court has assumed jurisdiction over a petition for review under this
section, the superior court civil rules shall govern a request for intervention
and all other procedural matters not specifically provided for in this section.
Sec.
5. RCW
36.70A.300 and 1997 c 429 s 14 are each amended to read as follows:
(1)
((The board shall issue a final order that 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
adoption of plans, development regulations, and amendments thereto, under RCW
36.70A.040 or chapter 90.58 RCW.
(2)))(a)
Except as provided in (b) of this subsection, the ((final order)) decision
shall be issued within one hundred eighty days of receipt of the petition for
review, or, if multiple petitions are filed, within one hundred eighty days of
receipt of the last petition that is consolidated.
(b)
The board may extend the period of time for issuing a decision to enable the
parties to settle the dispute if additional time is necessary to achieve a
settlement, and (i) an extension is requested by all parties, or (ii) an
extension is requested by the petitioner and respondent and the board determines
that a negotiated settlement between the remaining parties could resolve
significant issues in dispute. The request must be filed with the board not
later than seven days before the date scheduled for the hearing on the merits
of the petition. The board may authorize one or more extensions for up to
ninety days each, subject to the requirements of this section.
(((3)))
(2) In ((the final order)) rendering its decision, the
board shall ((either)):
(a)
Find that the ((state agency,)) county((,)) or city is in
compliance with the requirements of ((this chapter,)) chapter 90.58 RCW
as it relates to the adoption or amendment of shoreline master programs, or
chapter 43.21C RCW as it relates to adoption of plans, development regulations,
and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW; or
(b)
Find that the county or city either has, or has not, taken the action by the
time such action is required to have been taken; or
(c)
Find that the ((state agency,)) county((,)) or city ((is not
in compliance with the requirements of this chapter, chapter 90.58 RCW as it
relates to the adoption or amendment of shoreline master programs, or chapter
43.21C RCW as it relates to adoption of plans, development regulations, and
amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, in which case))
either has, or has not, addressed relevant issues associated with an action
required under this chapter, but may not consider the adequacy of the actions
taken by the county or city. If the board finds that the county or city has
not addressed the relevant issues, the board shall ((remand the matter
to the affected state agency, county, or city. The board shall)) specify a
reasonable time not in excess of one hundred eighty days, or such longer period
as determined by the board in cases of unusual scope or complexity, within
which the ((state agency,)) county((,)) or city and the person
or persons appealing the action shall ((comply with the requirements of
this chapter. The board may require periodic reports to the board on the
progress the jurisdiction is making towards compliance.
(4)
Unless the board makes a determination of invalidity as provided in RCW
36.70A.302, 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.
(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)) attempt
to resolve the dispute; or
(d)
Find that the comprehensive plans either are, or are not, coordinated or
consistent, as required under RCW 36.70A.100. If the board finds that the
comprehensive plans are not coordinated or consistent, the board shall mediate
between the affected counties or cities to resolve the lack of coordination or
lack of consistency.
(3)
Nothing in RCW 36.70A.250 through 36.70A.345 precludes an aggrieved party from
filing a law suit seeking equitable relief against a county or city for failing
to comply with the requirements of this chapter or seeking other remedies that
may exist challenging the actions of a county or city taken under this chapter.
(4)
Any party aggrieved by a final decision of the hearings board may appeal the
decision directly to the court of appeals for assignment by the chief presiding
judge.
Sec.
6. RCW
36.70A.310 and 1994 c 249 s 32 are each amended to read as follows:
A
request for review by the state to a growth management hearings board under
RCW 36.70A.280(1) may be made only by the governor, or with the governor's
consent the head of an agency, or by the commissioner of public lands as
relating to state trust lands((, for the review of whether: (1) A county or
city that is required or chooses to plan under RCW 36.70A.040 has failed to
adopt a comprehensive plan or development regulations, or county-wide planning
policies within the time limits established by this chapter; or (2) a county or
city that is required or chooses to plan under this chapter has adopted a
comprehensive plan, development regulations, or county-wide planning policies, that
are not in compliance with the requirements of this chapter)).
Sec.
7. RCW
36.70A.320 and 1997 c 429 s 20 are each amended to read as follows:
(1)
((Except as provided in subsection (5) of this section,)) Comprehensive
plans and development regulations, and amendments thereto, adopted under this
chapter are presumed valid upon adoption.
(2)
Except as otherwise provided in subsection (4) of this section, the burden is
on the petitioner to demonstrate that any action taken by a state agency,
county, or city under this chapter is not in compliance with the requirements
of this chapter.
(3)
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 determines that the action by the state
agency, county, or city is clearly erroneous in view of the entire record
before the board and in light of the goals and requirements of this chapter))
render its decision.
(4)
A county or city subject to a determination of invalidity made under RCW
36.70A.300 or 36.70A.302 has the burden of demonstrating that the ordinance or
resolution it has enacted in response to the determination of invalidity will
no longer substantially interfere with the fulfillment of the goals of this
chapter under the standard in RCW 36.70A.302(1).
(((5)
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.
8. RCW
36.70A.340 and 1991 sp.s. c 32 s 26 are each amended to read as follows:
((Upon
receipt from the board of a finding that a state agency, county, or city is in
noncompliance under RCW 36.70A.330, or as a result of failure to meet the
requirements of)) If sanctions are imposed under RCW 36.70A.210 or
36.70A.345, the governor may either:
(1)
Notify and direct the director of the office of financial management to revise
allotments in appropriation levels;
(2)
Notify and direct the state treasurer to withhold the portion of revenues to
which the county or city is entitled under one or more of the following: The
motor vehicle fuel tax, as provided in chapter 82.36 RCW; the transportation
improvement account, as provided in RCW 47.26.084; the urban arterial trust
account, as provided in RCW 47.26.080; the rural arterial trust account, as
provided in RCW 36.79.150; the sales and use tax, as provided in chapter 82.14
RCW; the liquor profit tax, as provided in RCW 66.08.190; and the liquor excise
tax, as provided in RCW 82.08.170; or
(3)
File a notice of noncompliance with the secretary of state and the county or
city, which shall temporarily rescind the county or city's authority to collect
the real estate excise tax under RCW 82.46.030 until the governor files a
notice rescinding the notice of noncompliance.
NEW
SECTION. Sec. 9. RCW
36.70A.330 and 1997 c 429 s 21, 1995 c 347 s 112, & 1991 sp.s.
c 32 s 14 are each repealed.
NEW SECTION. Sec. 10. RCW
36.70A.340 is recodified to appear immediately after RCW 36.70A.345.
