AN
ACT Relating to growth management; amending RCW 36.70A.030, 36.70A.060,
36.70A.070, 36.70A.130, 36.70A.270, 36.70A.290, 36.70A.300, 36.70A.305,
36.70A.320, 36.70A.330, 36.70A.110, 43.62.035, 36.70A.500, 43.155.070,
70.146.070, 84.34.020, 84.34.060, 84.34.065, 84.40.030, 90.60.030, 35A.14.295,
35.13.174, 36.93.170, 84.14.010, 84.14.030, 84.14.050, 90.61.020, 90.61.040,
36.70B.040, 43.21C.110, 36.70B.110, 43.21C.075, 90.58.090, 90.58.143, and
34.05.518; adding new sections to chapter 36.70A RCW; adding a new section to
chapter 35.13 RCW; creating new sections; providing expiration dates; and
declaring an emergency.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 36.70A RCW to read as follows:
In
enacting the section 7(5), chapter . . ., Laws of 1997 (section 7(5)
of this act) amendments to RCW 36.70A.070(5), the legislature finds that
chapter 36.70A RCW is intended to recognize the importance of agriculture, forestry,
and rural lands and rural character to Washington's economy, its people, and
its environment, while respecting regional differences and, in accordance with
one of the goals of the growth management act, protecting the property rights
of landowners from arbitrary and discriminatory actions. Rural lands and rural‑based
economies, including agriculture and forest uses that are located outside of
designated resource lands, enhance the economic desirability of the state, help
to preserve traditional economic activities, and contribute to the state's
overall quality of life. The legislature also finds that in developing its
rural element under RCW 36.70A.070(5), a county should foster land use patterns
and develop a local vision of rural character that: Will help preserve rural‑based
economies and traditional rural lifestyles; will encourage the economic
prosperity of rural residents; will foster opportunities for small-scale,
rural-based employment and self‑employment; will permit the operation of
rural-based agricultural, commercial, recreational, and tourist businesses that
are consistent with existing and planned land use patterns; will foster the
private stewardship of the land and preservation of open space; and will
enhance the rural sense of community and quality of life. The legislature
recognizes that there will be a variety of interpretations by counties of how
best to implement a rural element, reflecting the diverse needs and local
circumstances found across the state. RCW 36.70A.070(5) provides a framework
for local elected officials to make these determinations. References to both
wildlife and water are intended in RCW 36.70A.030 and 36.70A.070 to acknowledge
their importance as features or components of rural character. It is expected that
these matters will be addressed in comprehensive plans, but that counties may
not necessarily need to adopt new regulations to account adequately for them in
establishing a pattern of land use and development for rural areas.
NEW
SECTION. Sec. 2. A
new section is added to chapter 36.70A RCW to read as follows:
In
amending RCW 36.70A.320(3) by section 20(3), chapter . . ., Laws of
1997 (section 20(3) of this act), the legislature intends that the boards apply
a more deferential standard of review to actions of counties and cities than
the preponderance of the evidence standard provided for under existing law. In
recognition of the broad range of discretion that may be exercised by counties
and cities consistent with the requirements of this chapter, the legislature
intends for the boards to grant deference to counties and cities in how they
plan for growth, consistent with the requirements and goals of this chapter.
Local comprehensive plans and development regulations require counties and
cities to balance priorities and options for action in full consideration of
local circumstances. The legislature finds that while this chapter requires
local planning to take place within a framework of state goals and
requirements, the ultimate burden and responsibility for planning, harmonizing
the planning goals of this chapter, and implementing a county's or city's
future rests with that community.
Sec.
3. RCW
36.70A.030 and 1995 c 382 s 9 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Adopt a comprehensive land use plan" means to enact a new comprehensive
land use plan or to update an existing comprehensive land use plan.
(2)
"Agricultural land" means land primarily devoted to the commercial
production of horticultural, viticultural, floricultural, dairy, apiary,
vegetable, or animal products or of berries, grain, hay, straw, turf, seed,
Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through
84.33.140, finfish in upland hatcheries, or livestock, and that has long-term
commercial significance for agricultural production.
(3)
"City" means any city or town, including a code city.
(4)
"Comprehensive land use plan," "comprehensive plan," or
"plan" means a generalized coordinated land use policy statement of
the governing body of a county or city that is adopted pursuant to this chapter.
(5)
"Critical areas" include the following areas and ecosystems: (a)
Wetlands; (b) areas with a critical recharging effect on aquifers used for
potable water; (c) fish and wildlife habitat conservation areas; (d) frequently
flooded areas; and (e) geologically hazardous areas.
(6)
"Department" means the department of community, trade, and economic
development.
(7)
"Development regulations" or "regulation" means the
controls placed on development or land use activities by a county or city,
including, but not limited to, zoning ordinances, critical areas ordinances,
shoreline master programs, official controls, planned unit development
ordinances, subdivision ordinances, and binding site plan ordinances together
with any amendments thereto. A development regulation does not include a
decision to approve a project permit application, as defined in RCW 36.70B.020,
even though the decision may be expressed in a resolution or ordinance of the
legislative body of the county or city.
(8)
"Forest land" means land primarily devoted to growing trees for
long-term commercial timber production on land that can be economically and
practically managed for such production, including Christmas trees subject to
the excise tax imposed under RCW 84.33.100 through 84.33.140, and that has
long-term commercial significance. In determining whether forest land is
primarily devoted to growing trees for long-term commercial timber production
on land that can be economically and practically managed for such production,
the following factors shall be considered: (a) The proximity of the land to
urban, suburban, and rural settlements; (b) surrounding parcel size and the
compatibility and intensity of adjacent and nearby land uses; (c) long-term
local economic conditions that affect the ability to manage for timber
production; and (d) the availability of public facilities and services
conducive to conversion of forest land to other uses.
(9)
"Geologically hazardous areas" means areas that because of their
susceptibility to erosion, sliding, earthquake, or other geological events, are
not suited to the siting of commercial, residential, or industrial development
consistent with public health or safety concerns.
(10)
"Long-term commercial significance" includes the growing capacity,
productivity, and soil composition of the land for long-term commercial
production, in consideration with the land's proximity to population areas,
and the possibility of more intense uses of the land.
(11)
"Minerals" include gravel, sand, and valuable metallic substances.
(12)
"Public facilities" include streets, roads, highways, sidewalks,
street and road lighting systems, traffic signals, domestic water systems,
storm and sanitary sewer systems, parks and recreational facilities, and
schools.
(13)
"Public services" include fire protection and suppression, law
enforcement, public health, education, recreation, environmental protection,
and other governmental services.
(14)
"Rural character" refers to the patterns of land use and
development established by a county in the rural element of its comprehensive
plan:
(a)
In which open space, the natural landscape, and vegetation predominate over the
built environment;
(b)
That foster traditional rural lifestyles, rural-based economies, and
opportunities to both live and work in rural areas;
(c)
That provide visual landscapes that are traditionally found in rural areas and
communities;
(d)
That are compatible with the use of the land by wildlife and for fish and
wildlife habitat;
(e)
That reduce the inappropriate conversion of undeveloped land into sprawling,
low‑density development;
(f)
That generally do not require the extension of urban governmental services; and
(g)
That are consistent with the protection of natural surface water flows and
ground water and surface water recharge and discharge areas.
(15)
"Rural development" refers to development outside the urban growth
area and outside agricultural, forest, and mineral resource lands designated
pursuant to RCW 36.70A.170. Rural development can consist of a variety of uses
and residential densities, including clustered residential development, at
levels that are consistent with the preservation of rural character and the
requirements of the rural element. Rural development does not refer to
agriculture or forestry activities that may be conducted in rural areas.
(16)
"Rural governmental services" or "rural services" include
those public services and public facilities historically and typically
delivered at an intensity usually found in rural areas, and may include
domestic water systems, fire and police protection services, transportation and
public transit services, and other public utilities associated with rural
development and normally not associated with urban areas. Rural services do
not include storm or sanitary sewers, except as otherwise authorized by RCW
36.70A.110(4).
(17)
"Urban growth" refers to growth that makes intensive use of land for
the location of buildings, structures, and impermeable surfaces to such a
degree as to be incompatible with the primary use of ((such)) land for
the production of food, other agricultural products, or fiber, or the
extraction of mineral resources, rural uses, rural development, and natural
resource lands designated pursuant to RCW 36.70A.170. A pattern of more
intensive rural development, as provided in RCW 36.70A.070(5)(d), is not urban
growth. When allowed to spread over wide areas, urban growth typically requires
urban governmental services. "Characterized by urban growth" refers
to land having urban growth located on it, or to land located in relationship
to an area with urban growth on it as to be appropriate for urban growth.
(((15)))
(18) "Urban growth areas" means those areas designated by a
county pursuant to RCW 36.70A.110.
(((16)))
(19) "Urban governmental services" or "urban
services" include those ((governmental)) public services
and public facilities at an intensity historically and typically ((delivered
by)) provided in cities, ((and include)) specifically
including storm and sanitary sewer systems, domestic water systems, street
cleaning services, fire and police protection services, public transit
services, and other public utilities associated with urban areas and normally
not associated with ((nonurban)) rural areas.
(((17)))
(20) "Wetland" or "wetlands" means areas that are
inundated or saturated by surface water or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and similar
areas. Wetlands do not include those artificial wetlands intentionally created
from nonwetland sites, including, but not limited to, irrigation and drainage
ditches, grass-lined swales, canals, detention facilities, wastewater treatment
facilities, farm ponds, and landscape amenities, or those wetlands created
after July 1, 1990, that were unintentionally created as a result of the
construction of a road, street, or highway. Wetlands may include those
artificial wetlands intentionally created from nonwetland areas created to
mitigate conversion of wetlands.
NEW
SECTION. Sec. 4. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
A county, after conferring with its cities, may develop alternative methods of
achieving the planning goals established by RCW 36.70A.020.
(2)
The authority provided by this section may not be used to modify:
(a)
Requirements for the designation and protection of critical areas or for the
designation of natural resource lands under RCW 36.70A.060(2), 36.70A.170, and
36.70A.172;
(b)
The requirement that wetlands be delineated consistent with the requirements of
RCW 36.70A.175; or
(c)
The requirement to establish a process for the siting of essential public
facilities pursuant to RCW 36.70A.200.
(3)
Before adopting any alternative methods of achieving the planning goals
established by RCW 36.70A.020, a county shall provide an opportunity for public
review and comment. An ordinance or resolution proposing or adopting
alternative methods must be submitted to the department in the same manner as
provided in RCW 36.70A.106 for submittal of proposed and adopted comprehensive
plans and development regulations.
NEW
SECTION. Sec. 5. A
new section is added to chapter 36.70A RCW to read as follows:
The
legislature finds that it is the goal of the state of Washington to achieve no
overall net loss of wetland functions. Wetlands can provide public benefits
related to flood control, groundwater recharge, water quality, and wildlife
habitat. The legislature further finds that consideration should be given to
the functions wetlands provide and to the needs of private property owners to
assure that wetlands regulations both reflect the impact to wetland functions
and allow for a reasonable use of property. In adopting critical areas
development regulations, counties and cities should consider and balance all of
the goals under RCW 36.70A.020. The legislature intends that no goal takes
precedence over any of the others, but that counties and cities may prioritize
the goals in accordance with local history, conditions, circumstances, and
choice.
Sec.
6. RCW
36.70A.060 and 1991 sp.s. c 32 s 21 are each amended to read as follows:
(1)
Each county that is required or chooses to plan under RCW 36.70A.040, and each
city within such county, shall adopt development regulations on or before
September 1, 1991, to assure the conservation of agricultural, forest, and
mineral resource lands designated under RCW 36.70A.170. Regulations adopted
under this subsection may not prohibit uses legally existing on any parcel
prior to their adoption and shall remain in effect until the county or city
adopts development regulations pursuant to RCW 36.70A.120. Such regulations
shall assure that the use of lands adjacent to agricultural, forest, or mineral
resource lands shall not interfere with the continued use, in the accustomed
manner and in accordance with best management practices, of these designated
lands for the production of food, agricultural products, or timber, or for the
extraction of minerals. Counties and cities shall require that all plats,
short plats, development permits, and building permits issued for development
activities on, or within three hundred feet of, lands designated as
agricultural lands, forest lands, or mineral resource lands, contain a notice
that the subject property is within or near designated agricultural lands,
forest lands, or mineral resource lands on which a variety of commercial activities
may occur that are not compatible with residential development for certain
periods of limited duration.
(2)
Each county and city shall adopt development regulations that protect critical
areas that are required to be designated under RCW 36.70A.170. For counties
and cities that are required or choose to plan under RCW 36.70A.040, such
development regulations shall be adopted on or before September 1, 1991. For
the remainder of the counties and cities, such development regulations shall be
adopted on or before March 1, 1992.
(3)
Such counties and cities shall review these designations and development
regulations when adopting their comprehensive plans under RCW 36.70A.040 and
implementing development regulations under RCW 36.70A.120 and may alter such
designations and development regulations to insure consistency.
(4)
Forest land and agricultural land located within urban growth areas shall not
be designated by a county or city as forest land or agricultural land of
long-term commercial significance under RCW 36.70A.170 unless the city or
county has enacted a program authorizing transfer or purchase of development
rights.
(5)
Counties and cities may exempt the following from critical areas development
regulations:
(a)
Emergency activities; and
(b)
Activities with minor impacts on critical areas.
Sec.
7. RCW
36.70A.070 and 1996 c 239 s 1 are each amended to read as follows:
The
comprehensive plan of a county or city that is required or chooses to plan
under RCW 36.70A.040 shall consist of a map or maps, and descriptive text
covering objectives, principles, and standards used to develop the
comprehensive plan. The plan shall be an internally consistent document and
all elements shall be consistent with the future land use map. A comprehensive
plan shall be adopted and amended with public participation as provided in RCW
36.70A.140.
Each
comprehensive plan shall include a plan, scheme, or design for each of the
following:
(1)
A land use element designating the proposed general distribution and general
location and extent of the uses of land, where appropriate, for agriculture,
timber production, housing, commerce, industry, recreation, open spaces,
general aviation airports, public utilities, public facilities, and other land
uses. The land use element shall include population densities, building
intensities, and estimates of future population growth. The land use element
shall provide for protection of the quality and quantity of ground water used
for public water supplies. Where applicable, the land use element shall review
drainage, flooding, and storm water run-off in the area and nearby
jurisdictions and provide guidance for corrective actions to mitigate or
cleanse those discharges that pollute waters of the state, including Puget
Sound or waters entering Puget Sound.
(2)
A housing element ensuring the vitality and character of established
residential neighborhoods that: (a) Includes an inventory and analysis of
existing and projected housing needs; (b) includes a statement of goals,
policies, objectives, and mandatory provisions for the preservation,
improvement, and development of housing, including single-family residences;
(c) identifies sufficient land for housing, including, but not limited to,
government-assisted housing, housing for low-income families, manufactured
housing, multifamily housing, and group homes and foster care facilities; and
(d) makes adequate provisions for existing and projected needs of all economic
segments of the community.
(3)
A capital facilities plan element consisting of: (a) An inventory of existing
capital facilities owned by public entities, showing the locations and
capacities of the capital facilities; (b) a forecast of the future needs for
such capital facilities; (c) the proposed locations and capacities of expanded
or new capital facilities; (d) at least a six-year plan that will finance such
capital facilities within projected funding capacities and clearly identifies
sources of public money for such purposes; and (e) a requirement to reassess
the land use element if probable funding falls short of meeting existing needs
and to ensure that the land use element, capital facilities plan element, and
financing plan within the capital facilities plan element are coordinated and
consistent.
(4)
A utilities element consisting of the general location, proposed location, and
capacity of all existing and proposed utilities, including, but not limited to,
electrical lines, telecommunication lines, and natural gas lines.
(5)
Rural element. Counties shall include a rural element including lands
that are not designated for urban growth, agriculture, forest, or mineral
resources. The following provisions shall apply to the rural element:
(a)
Growth management act goals and local circumstances. Because circumstances
vary from county to county, in establishing patterns of rural densities and
uses, a county may consider local circumstances, but shall develop a written
record explaining how the rural element harmonizes the planning goals in RCW
36.70A.020 and meets the requirements of this chapter.
(b)
Rural development. The rural element shall permit ((appropriate land
uses that are compatible with the rural character of such lands and)) rural
development, forestry, and agriculture in rural areas. The rural element shall
provide for a variety of rural densities ((and)), uses ((and
may also provide)), essential public facilities, and rural governmental
services needed to serve the permitted densities and uses. In order to achieve
a variety of rural densities and uses, counties may provide for clustering,
density transfer, design guidelines, conservation easements, and other
innovative techniques that will accommodate appropriate rural densities and
uses that are not characterized by urban growth and that are
consistent with rural character.
(c)
Measures governing rural development. The rural element shall include measures
that apply to rural development and protect the rural character of the area, as
established by the county, by:
(i)
Containing or otherwise controlling rural development;
(ii)
Assuring visual compatibility of rural development with the surrounding rural
area;
(iii)
Reducing the inappropriate conversion of undeveloped land into sprawling,
low-density development in the rural area;
(iv)
Protecting critical areas, as provided in RCW 36.70A.060, and surface water and
ground water resources; and
(v)
Protecting against conflicts with the use of agricultural, forest, and mineral
resource lands designated under RCW 36.70A.170.
(d)
Limited areas of more intensive rural development. Subject to the requirements
of this subsection and except as otherwise specifically provided in this
subsection (5)(d), the rural element may allow for limited areas of more
intensive rural development, including necessary public facilities and public
services to serve the limited area as follows:
(i)
Rural development consisting of the infill, development, or redevelopment of
existing commercial, industrial, residential, or mixed-use areas, whether
characterized as shoreline development, villages, hamlets, rural activity
centers, or crossroads developments. A commercial, industrial, residential,
shoreline, or mixed-use area shall be subject to the requirements of (d)(iv) of
this subsection, but shall not be subject to the requirements of (c)(ii) and
(iii) of this subsection. An industrial area is not required to be principally
designed to serve the existing and projected rural population;
(ii)
The intensification of development on lots containing, or new development of,
small-scale recreational or tourist uses, including commercial facilities to
serve those recreational or tourist uses, that rely on a rural location and
setting, but that do not include new residential development. A small-scale
recreation or tourist use is not required to be principally designed to serve
the existing and projected rural population. Public services and public
facilities shall be limited to those necessary to serve the recreation or
tourist use and shall be provided in a manner that does not permit low-density
sprawl;
(iii)
The intensification of development on lots containing isolated nonresidential
uses or new development of isolated cottage industries and isolated small-scale
businesses that are not principally designed to serve the existing and
projected rural population and nonresidential uses, but do provide job
opportunities for rural residents. Public services and public facilities shall
be limited to those necessary to serve the isolated nonresidential use and
shall be provided in a manner that does not permit low-density sprawl;
(iv)
A county shall adopt measures to minimize and contain the existing areas or
uses of more intensive rural development, as appropriate, authorized under this
subsection. Lands included in such existing areas or uses shall not extend
beyond the logical outer boundary of the existing area or use, thereby allowing
a new pattern of low-density sprawl. Existing areas are those that are clearly
identifiable and contained and where there is a logical boundary delineated
predominately by the built environment, but that may also include undeveloped
lands if limited as provided in this subsection. The county shall establish
the logical outer boundary of an area of more intensive rural development. In
establishing the logical outer boundary the county shall address (A) the need
to preserve the character of existing natural neighborhoods and communities,
(B) physical boundaries such as bodies of water, streets and highways, and land
forms and contours, (C) the prevention of abnormally irregular boundaries, and
(D) the ability to provide public facilities and public services in a manner
that does not permit low-density sprawl;
(v)
For purposes of (d) of this subsection, an existing area or existing use is one
that was in existence:
(A)
On July 1, 1990, in a county that was initially required to plan under all of
the provisions of this chapter;
(B)
On the date the county adopted a resolution under RCW 36.70A.040(2), in a
county that is planning under all of the provisions of this chapter under RCW
36.70A.040(2); or
(C)
On the date the office of financial management certifies the county's
population as provided in RCW 36.70A.040(5), in a county that is planning under
all of the provisions of this chapter pursuant to RCW 36.70A.040(5).
(e)
Exception. This subsection shall not be interpreted to permit in the rural area
a major industrial development or a master planned resort unless otherwise
specifically permitted under RCW 36.70A.360 and 36.70A.365.
(6)
A transportation element that implements, and is consistent with, the land use
element. The transportation element shall include the following subelements:
(a)
Land use assumptions used in estimating travel;
(b)
Facilities and services needs, including:
(i)
An inventory of air, water, and ground transportation facilities and services,
including transit alignments and general aviation airport facilities, to define
existing capital facilities and travel levels as a basis for future planning;
(ii)
Level of service standards for all arterials and transit routes to serve as a
gauge to judge performance of the system. These standards should be regionally
coordinated;
(iii)
Specific actions and requirements for bringing into compliance any facilities
or services that are below an established level of service standard;
(iv)
Forecasts of traffic for at least ten years based on the adopted land use plan
to provide information on the location, timing, and capacity needs of future
growth;
(v)
Identification of system expansion needs and transportation system management
needs to meet current and future demands;
(c)
Finance, including:
(i)
An analysis of funding capability to judge needs against probable funding
resources;
(ii)
A multiyear financing plan based on the needs identified in the comprehensive
plan, the appropriate parts of which shall serve as the basis for the six-year
street, road, or transit program required by RCW 35.77.010 for cities, RCW
36.81.121 for counties, and RCW 35.58.2795 for public transportation systems;
(iii)
If probable funding falls short of meeting identified needs, a discussion of
how additional funding will be raised, or how land use assumptions will be
reassessed to ensure that level of service standards will be met;
(d)
Intergovernmental coordination efforts, including an assessment of the impacts
of the transportation plan and land use assumptions on the transportation
systems of adjacent jurisdictions;
(e)
Demand-management strategies.
After
adoption of the comprehensive plan by jurisdictions required to plan or who
choose to plan under RCW 36.70A.040, local jurisdictions must adopt and enforce
ordinances which prohibit development approval if the development causes the
level of service on a transportation facility to decline below the standards
adopted in the transportation element of the comprehensive plan, unless
transportation improvements or strategies to accommodate the impacts of
development are made concurrent with the development. These strategies may
include increased public transportation service, ride sharing programs, demand
management, and other transportation systems management strategies. For the
purposes of this subsection (6) "concurrent with the development"
shall mean that improvements or strategies are in place at the time of
development, or that a financial commitment is in place to complete the
improvements or strategies within six years.
The
transportation element described in this subsection, and the six-year plans
required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW
35.58.2795 for public transportation systems, must be consistent.
NEW
SECTION. Sec. 8. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
Except as otherwise provided in this chapter, residential and nonresidential
uses in the rural element shall not require urban services and nonresidential
rural development shall be principally designed to serve and provide jobs for
the existing and projected rural population or serve existing nonresidential
uses.
(2)
This section applies to (a) a county with a population of ninety-five thousand
or more; and (b) a county that has committed five percent or more of its land
base to urban growth areas under RCW 36.70A.110 and that has no more than
eighty percent of its land base in public ownership or resource lands of
long-term commercial significance designated under RCW 36.70A.170.
NEW
SECTION. Sec. 9. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
The public participation requirements of this chapter shall include notice
procedures that are reasonably calculated to provide notice to property owners
and other affected and interested individuals, tribes, government agencies,
businesses, and organizations of proposed amendments to comprehensive plans and
development regulation. Examples of reasonable notice provisions include:
(a)
Posting the property for site-specific proposals;
(b)
Publishing notice in a newspaper of general circulation in the county, city, or
general area where the proposal is located or that will be affected by the
proposal;
(c)
Notifying public or private groups with known interest in a certain proposal or
in the type of proposal being considered;
(d)
Placing notices in appropriate regional, neighborhood, ethnic, or trade
journals; and
(e)
Publishing notice in agency newsletters or sending notice to agency mailing
lists, including general lists or lists for specific proposals or subject
areas.
(2)(a)
Except as otherwise provided in (b) of this subsection, if the legislative body
for a county or city chooses to consider a change to an amendment to a
comprehensive plan or development regulation, and the change is proposed after
the opportunity for review and comment has passed under the county's or city's
procedures, an opportunity for review and comment on the proposed change shall
be provided before the local legislative body votes on the proposed change.
(b)
An additional opportunity for public review and comment is not required under
(a) of this subsection if:
(i)
An environmental impact statement has been prepared under chapter 43.21C RCW
for the pending resolution or ordinance and the proposed change is within the
range of alternatives considered in the environmental impact statement;
(ii)
The proposed change is within the scope of the alternatives available for
public comment;
(iii)
The proposed change only corrects typographical errors, corrects
cross-references, makes address or name changes, or clarifies language of a
proposed ordinance or resolution without changing its effect;
(iv)
The proposed change is to a resolution or ordinance making a capital budget
decision as provided in RCW 36.70A.120; or
(v)
The proposed change is to a resolution or ordinance enacting a moratorium or
interim control adopted under RCW 36.70A.390.
(3)
This section is prospective in effect and does not apply to a comprehensive
plan, development regulation, or amendment adopted before the effective date of
this section.
Sec.
10. RCW
36.70A.130 and 1995 c 347 s 106 are each amended to read as follows:
(1)
Each comprehensive land use plan and development regulations shall be subject
to continuing ((evaluation and)) review and evaluation by the
county or city that adopted them. Not later than September 1, 2002, and at
least every five years thereafter, a county or city shall take action to review
and, if needed, revise its comprehensive land use plan and development
regulations to ensure that the plan and regulations are complying with the
requirements of this chapter. The review and evaluation required by this
subsection may be combined with the review required by subsection (3) of this
section.
Any
amendment or revision to a comprehensive land use plan shall conform to this
chapter, and any change to development regulations shall be consistent with and
implement the comprehensive plan.
(2)(a)
Each county and city shall establish and broadly disseminate to the public a
public participation program identifying procedures whereby proposed amendments
or revisions of the comprehensive plan are considered by the governing body of
the county or city no more frequently than once every year except that amendments
may be considered more frequently under the following circumstances:
(i)
The initial adoption of a subarea plan; ((and))
(ii)
The adoption or amendment of a shoreline master program under the procedures
set forth in chapter 90.58 RCW; and
(iii)
The amendment of the capital facilities element of a comprehensive plan that
occurs concurrently with the adoption or amendment of a county or city budget.
(b)
Except as otherwise provided in (a) of this subsection, all proposals
shall be considered by the governing body concurrently so the cumulative effect
of the various proposals can be ascertained. However, after appropriate public
participation a county or city may adopt amendments or revisions to its
comprehensive plan that conform with this chapter whenever an emergency exists
or to resolve an appeal of a comprehensive plan filed with a growth management
hearings board or with the court.
(3)
Each county that designates urban growth areas under RCW 36.70A.110 shall
review, at least every ten years, its designated urban growth area or areas,
and the densities permitted within both the incorporated and unincorporated
portions of each urban growth area. In conjunction with this review by the
county, each city located within an urban growth area shall review the
densities permitted within its boundaries, and the extent to which the urban
growth occurring within the county has located within each city and the
unincorporated portions of the urban growth areas. The county comprehensive
plan designating urban growth areas, and the densities permitted in the urban
growth areas by the comprehensive plans of the county and each city located
within the urban growth areas, shall be revised to accommodate the urban growth
projected to occur in the county for the succeeding twenty-year period. The
review required by this subsection may be combined with the review and
evaluation required by section 25 of this act.
Sec.
11. RCW
36.70A.270 and 1996 c 325 s 1 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 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 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.
12. RCW
36.70A.290 and 1995 c 347 s 109 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 of the
county or city.
(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 section 13 of this act, 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, 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.
NEW
SECTION. Sec. 13. A
new section is added to chapter 36.70A RCW 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.
14. 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)) 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, ((adopted))
under RCW 36.70A.040 or chapter 90.58 RCW.
(2)(a)
Except as provided in (b) of this subsection, the final order 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)
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
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 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, 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 the board shall remand the matter to the affected state agency, county, or
city ((and)). 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 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.
(((2)))
(4) Unless the board makes a determination of invalidity as provided in
section 16 of this act, 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 final order
also:
(a)
Includes 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 the particular part or parts of the plan or regulation that are
determined to be invalid, and the reasons for their invalidity.
(3)
A determination of invalidity shall:
(a)
Be prospective in effect and shall not extinguish rights that vested under
state or local law before the date of the board's order; and
(b)
Subject any development application that would otherwise vest after the date of
the board's order 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.
(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)).
(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.
NEW
SECTION. Sec. 15. A
new section is added to chapter 36.70A RCW to read as follows:
After
the effective date of this section, all appeals of a decision taken from a
final decision of a board shall be filed in the court of appeals for assignment
by the chief presiding judge.
NEW
SECTION. Sec. 16. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
A board may determine that part or all of a comprehensive plan or development
regulations are invalid if the board:
(a)
Makes a finding of noncompliance and issues an order of remand under RCW
36.70A.300;
(b)
Includes in the final order a determination, supported by findings of fact and
conclusions of law, that the continued validity of part or parts of the plan or
regulation would substantially interfere with the fulfillment of the goals of
this chapter; and
(c)
Specifies in the final order the particular part or parts of the plan or
regulation that are determined to be invalid, and the reasons for their
invalidity.
(2)
A determination of invalidity is prospective in effect and does not extinguish
rights that vested under state or local law before receipt of the board's order
by the city or county. The determination of invalidity does not apply to a
completed development permit application for a project that vested under state
or local law before receipt of the board's order by the county or city or to
related construction permits for that project.
(3)(a)
Except as otherwise provided in subsection (2) of this section and (b) of this
subsection, a development permit application not vested under state or local
law before receipt of the board's order by the county or city vests to the
local ordinance or resolution that is determined by the board not to
substantially interfere with the fulfillment of the goals of this chapter.
(b)
Even though the application is not vested under state or local law before
receipt by the county or city of the board's order, a determination of
invalidity does not apply to a development permit application for:
(i)
A permit for construction by any owner, lessee, or contract purchaser of a
single‑family residence for his or her own use or for the use of his or
her family on a lot existing before receipt by the county or city of the
board's order, except as otherwise specifically provided in the board's order
to protect the public health and safety;
(ii)
A building permit and related construction permits for remodeling, tenant improvements,
or expansion of an existing structure on a lot existing before receipt of the
board's order by the county or city; and
(iii)
A boundary line adjustment or a division of land that does not increase the
number of buildable lots existing before receipt of the board's order by the
county or city.
(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 (1) of this section whether
the prior policies or regulations are valid during the period of remand.
(5)
A county or city subject to a determination of invalidity may adopt interim controls
and other measures to be in effect until it adopts a comprehensive plan and
development regulations that comply with the requirements of this chapter. A
development permit application may vest under an interim control or measure
upon determination by the board that the interim controls and other measures do
not substantially interfere with the fulfillment of the goals of this chapter.
(6)
A county or city subject to a determination of invalidity may file a motion
requesting that the board clarify, modify, or rescind the order. The board
shall expeditiously schedule a hearing on the motion. At the hearing on the
motion, the parties may present information to the board to clarify the part or
parts of the comprehensive plan or development regulations to which the final
order applies. The board shall issue any supplemental order based on the
information provided at the hearing not later than thirty days after the date
of the hearing.
(7)(a)
If a determination of invalidity has been made and the county or city has
enacted an ordinance or resolution amending the invalidated part or parts of
the plan or regulation or establishing interim controls on development affected
by the order of invalidity, after a compliance hearing, the board shall modify
or rescind the determination of invalidity if it determines under the standard
in subsection (1) of this section that the plan or regulation, as amended or
made subject to such interim controls, will no longer substantially interfere
with the fulfillment of the goals of this chapter.
(b)
If the board determines that part or parts of the plan or regulation are no
longer invalid as provided in this subsection, but does not find that the plan
or regulation is in compliance with all of the requirements of this chapter,
the board, in its order, may require periodic reports to the board on the
progress the jurisdiction is making towards compliance.
NEW
SECTION. Sec. 17. A
board shall determine that part or all of a comprehensive plan or development
regulations, or amendments thereto, are invalid only if, in addition to the
requirements of section 16 of this act, the board finds that in adopting plans
or development regulations, or amendments thereto, the county or city acted in
an arbitrary and capricious manner.
Sec.
18. RCW
36.70A.305 and 1996 c 325 s 4 are each amended to read as follows:
(1)
The court shall provide expedited review of ((a determination of invalidity
or)) an order ((effectuating)) that includes a determination
of invalidity made or issued under RCW 36.70A.300 and section 16 of this act.
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.
(2)
A determination of substantial interference under this chapter must be based on
evidence of actual development or development permit applications that would
substantially interfere with the goals of this chapter, and not on hypothetical
or speculative development potential.
NEW
SECTION. Sec. 19. A
new section is added to chapter 36.70A RCW to read as follows:
A
court, in reviewing an order of the board, may:
(1)
Affirm the board's order;
(2)
Set aside the board's order, enjoin or stay the board's order, remand the
matter for further proceedings, order the board to rescind or modify an order;
or
(3)
Enter a declaratory judgment order of compliance or noncompliance, which may
include a determination of invalidity if (a) the determination is supported by
findings of fact and conclusions of law that the continued validity of part or
parts of the plan or regulation would substantially interfere with the
fulfillment of the goals of this chapter and (b) the court's order specifies
the particular part or parts of the plan or regulation that are determined to
be invalid, and the reasons for their invalidity.
Sec.
20. RCW
36.70A.320 and 1995 c 347 s 111 are each amended to read as follows:
(1)
Except as provided in subsection (((2))) (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 ((finds by a preponderance of the evidence that
the state agency, county, or city erroneously interpreted or applied this
chapter)) 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.
(((2)))
(4) A county or city subject to a determination of invalidity made under RCW
36.70A.300 or section 16 of this act 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 section 16(1) of this act.
(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.
21. RCW
36.70A.330 and 1995 c 347 s 112 are each amended to read as follows:
(1)
After the time set for complying with the requirements of this chapter under
RCW ((36.70A.300(1)(b))) 36.70A.300(3)(b) has expired, or at an
earlier time upon the motion of a county or city subject to a determination of
invalidity under RCW 36.70A.300, the board shall set a hearing for the purpose
of determining whether the state agency, county, or city is in compliance with
the requirements of this chapter.
(2)
The board shall conduct a hearing and issue a finding of compliance or
noncompliance with the requirements of this chapter and with any compliance
schedule established by the board in its final order. A person with
standing to challenge the legislation enacted in response to the board's final
order may participate in the hearing along with the petitioner and the state
agency, ((city, or)) county, or city. A hearing under this
subsection shall be given the highest priority of business to be conducted by
the board, and a finding shall be issued within forty-five days of the filing
of the motion under subsection (1) of this section with the board. The
board shall issue any order necessary to make adjustments to the compliance
schedule and set additional hearings as provided in subsection (5) of this
section.
(3)
If the board after a compliance hearing finds that the state agency,
county, or city is not in compliance, the board shall transmit its finding to
the governor. The board may recommend to the governor that the sanctions
authorized by this chapter be imposed. The board shall take into
consideration the county's or city's efforts to meet its compliance schedule in
making the decision to recommend sanctions to the governor.
(4)
In a compliance hearing upon petition of a party, the board shall also
reconsider its final order and decide((:
(a)
If a determination of invalidity has been made, whether such a determination
should be rescinded or modified under the standards in RCW 36.70A.300(2); or
(b))),
if no determination of invalidity has been made, whether one now should be
made ((under the standards in RCW 36.70A.300(2))) under section 16 of
this act.
(5)
The board shall schedule additional hearings as appropriate pursuant to
subsections (1) and (2) of this section.
NEW
SECTION. Sec. 22. A
new section is added to chapter 36.70A RCW to read as follows:
A
county or city subject to an order of invalidity issued before the effective
date of section 14 of this act, by motion may request the board to review the
order of invalidity in light of the section 14, chapter . . ., Laws
of 1997 (section 14 of this act) amendments to RCW 36.70A.300, the section 21,
chapter . . ., Laws of 1997 (section 21 of this act) amendments to
RCW 36.70A.330, and section 16 of this act. If a request is made, the board
shall rescind or modify the order of invalidity as necessary to make it
consistent with the section 14, chapter . . ., Laws of 1997 (section
14 of this act) amendments to RCW 36.70A.300, and to the section 21, chapter
. . ., Laws of 1997 (section 21 of this act) amendments to RCW
36.70A.330, and section 16 of this act.
NEW
SECTION. Sec. 23. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
A county or a city may use a variety of innovative zoning techniques in areas
designated as agricultural lands of long-term commercial significance under RCW
36.70A.170. The innovative zoning techniques should be designed to conserve
agricultural lands and encourage the agricultural economy. A county or city
should encourage nonagricultural uses to be limited to lands with poor soils or
otherwise not suitable for agricultural purposes.
(2)
Innovative zoning techniques a county or city may consider include, but are not
limited to:
(a)
Agricultural zoning, which limits the density of development and restricts or
prohibits nonfarm uses of agricultural land;
(b)
Cluster zoning, which allows new development on one portion of the land,
leaving the remainder in agricultural or open space uses;
(c)
Large lot zoning, which establishes as a minimum lot size the amount of land
necessary to achieve a successful farming practice;
(d)
Quarter/quarter zoning, which permits one residential dwelling on a one-acre minimum
lot for each one-sixteenth of a section of land; and
(e)
Sliding scale zoning, which allows the number of lots for single-family
residential purposes with a minimum lot size of one acre to increase inversely
as the size of the total acreage increases.
Sec.
24. RCW
36.70A.110 and 1995 c 400 s 2 are each amended to read as follows:
(1)
Each county that is required or chooses to plan under RCW 36.70A.040 shall
designate an urban growth area or areas within which urban growth shall be
encouraged and outside of which growth can occur only if it is not urban in
nature. Each city that is located in such a county shall be included within an
urban growth area. An urban growth area may include more than a single city.
An urban growth area may include territory that is located outside of a city
only if such territory already is characterized by urban growth whether or not
the urban growth area includes a city, or is adjacent to territory already
characterized by urban growth, or is a designated new fully contained community
as defined by RCW 36.70A.350.
(2)
Based upon the growth management population projection made for the county by
the office of financial management, ((the urban growth areas in)) the
county and each city within the county shall include areas and densities
sufficient to permit the urban growth that is projected to occur in the county or
city for the succeeding twenty-year period. Each urban growth area shall
permit urban densities and shall include greenbelt and open space areas. An
urban growth area determination may include a reasonable land market supply
factor and shall permit a range of urban densities and uses. In determining
this market factor, cities and counties may consider local circumstances.
Cities and counties have discretion in their comprehensive plans to make many
choices about accommodating growth.
Within
one year of July 1, 1990, each county that as of June 1, 1991, was required or
chose to plan under RCW 36.70A.040, shall begin consulting with each city
located within its boundaries and each city shall propose the location of an
urban growth area. Within sixty days of the date the county legislative
authority of a county adopts its resolution of intention or of certification by
the office of financial management, all other counties that are required or
choose to plan under RCW 36.70A.040 shall begin this consultation with each
city located within its boundaries. The county shall attempt to reach
agreement with each city on the location of an urban growth area within which
the city is located. If such an agreement is not reached with each city located
within the urban growth area, the county shall justify in writing why it so
designated the area an urban growth area. A city may object formally with the
department over the designation of the urban growth area within which it is
located. Where appropriate, the department shall attempt to resolve the
conflicts, including the use of mediation services.
(3)
Urban growth should be located first in areas already characterized by urban
growth that have adequate existing public facility and service capacities to
serve such development, second in areas already characterized by urban growth
that will be served adequately by a combination of both existing public
facilities and services and any additional needed public facilities and
services that are provided by either public or private sources, and third in
the remaining portions of the urban growth areas. Urban growth may also be
located in designated new fully contained communities as defined by RCW
36.70A.350.
(4)
In general, cities are the units of local government most appropriate to
provide urban governmental services. In general, it is not appropriate that
urban governmental services be extended to or expanded in rural areas except in
those limited circumstances shown to be necessary to protect basic public
health and safety and the environment and when such services are financially
supportable at rural densities and do not permit urban development.
(5)
On or before October 1, 1993, each county that was initially required to plan
under RCW 36.70A.040(1) shall adopt development regulations designating interim
urban growth areas under this chapter. Within three years and three months of
the date the county legislative authority of a county adopts its resolution of
intention or of certification by the office of financial management, all other
counties that are required or choose to plan under RCW 36.70A.040 shall adopt
development regulations designating interim urban growth areas under this
chapter. Adoption of the interim urban growth areas may only occur after
public notice; public hearing; and compliance with the state environmental
policy act, chapter 43.21C RCW, and RCW 36.70A.110. Such action may be
appealed to the appropriate growth management hearings board under RCW
36.70A.280. Final urban growth areas shall be adopted at the time of
comprehensive plan adoption under this chapter.
(6)
Each county shall include designations of urban growth areas in its
comprehensive plan.
NEW
SECTION. Sec. 25. A
new section is added to chapter 36.70A RCW to read as follows:
(1)
Subject to the limitations in subsection (7) of this section, a county shall
adopt, in consultation with its cities, county-wide planning policies to
establish a review and evaluation program. This program shall be in addition
to the requirements of RCW 36.70A.110, 36.70A.130, and 36.70A.210. In
developing and implementing the review and evaluation program required by this
section, the county and its cities shall consider information from other
appropriate jurisdictions and sources. The purpose of the review and
evaluation program shall be to:
(a)
Determine whether a county and its cities are achieving urban densities within
urban growth areas by comparing growth and development assumptions, targets,
and objectives contained in the county-wide planning policies and the county
and city comprehensive plans with actual growth and development that has
occurred in the county and its cities; and
(b)
Identify reasonable measures, other than adjusting urban growth areas, that
will be taken to comply with the requirements of this chapter.
(2)
The review and evaluation program shall:
(a)
Encompass land uses and activities both within and outside of urban growth
areas and provide for annual collection of data on urban and rural land uses,
development, critical areas, and capital facilities to the extent necessary to
determine the quantity and type of land suitable for development, both for
residential and employment-based activities;
(b)
Provide for evaluation of the data collected under (a) of this subsection every
five years as provided in subsection (3) of this section. The first evaluation
shall be completed not later than September 1, 2002. The county and its cities
may establish in the county-wide planning policies indicators, benchmarks, and
other similar criteria to use in conducting the evaluation;
(c)
Provide for methods to resolve disputes among jurisdictions relating to the
county-wide planning policies required by this section and procedures to
resolve inconsistencies in collection and analysis of data; and
(d)
Provide for the amendment of the county-wide policies and county and city
comprehensive plans as needed to remedy an inconsistency identified through the
evaluation required by this section, or to bring these policies into compliance
with the requirements of this chapter.
(3)
At a minimum, the evaluation component of the program required by subsection
(1) of this section shall:
(a)
Determine whether there is sufficient suitable land to accommodate the
county-wide population projection established for the county pursuant to RCW
43.62.035 and the subsequent population allocations within the county and
between the county and its cities and the requirements of RCW 36.70A.110;
(b)
Determine the actual density of housing that has been constructed and the
actual amount of land developed for commercial and industrial uses within the
urban growth area since the adoption of a comprehensive plan under this chapter
or since the last periodic evaluation as required by subsection (1) of this
section; and
(c)
Based on the actual density of development as determined under (b) of this
subsection, review commercial, industrial, and housing needs by type and
density range to determine the amount of land needed for commercial,
industrial, and housing for the remaining portion of the twenty-year planning
period used in the most recently adopted comprehensive plan.
(4)
If the evaluation required by subsection (3) of this section demonstrates an
inconsistency between what has occurred since the adoption of the county-wide
planning policies and the county and city comprehensive plans and development
regulations and what was envisioned in those policies and plans and the
planning goals and the requirements of this chapter, as the inconsistency
relates to the evaluation factors specified in subsection (3) of this section,
the county and its cities shall adopt and implement measures that are
reasonably likely to increase consistency during the subsequent five-year
period. If necessary, a county, in consultation with its cities as required by
RCW 36.70A.210, shall adopt amendments to county-wide planning policies to
increase consistency. The county and its cities shall annually monitor the
measures adopted under this subsection to determine their effect and may revise
or rescind them as appropriate.
(5)(a)
Not later than July 1, 1998, the department shall prepare a list of methods
used by counties and cities in carrying out the types of activities required by
this section. The department shall provide this information and appropriate
technical assistance to counties and cities required to or choosing to comply
with the provisions of this section.
(b)
By December 31, 2007, the department shall submit to the appropriate committees
of the legislature a report analyzing the effectiveness of the activities
described in this section in achieving the goals envisioned by the county-wide
planning policies and the comprehensive plans and development regulations of
the counties and cities.
(6)
From funds appropriated by the legislature for this purpose, the department
shall provide grants to counties, cities, and regional planning organizations
required under subsection (7) of this section to conduct the review and perform
the evaluation required by this section.
(7)
The provisions of this section shall apply to counties, and the cities within
those counties, that were greater than one hundred fifty thousand in population
in 1995 as determined by office of financial management population estimates
and that are located west of the crest of the Cascade mountain range. Any
other county planning under RCW 36.70A.040 may carry out the review,
evaluation, and amendment programs and procedures as provided in this section.
Sec.
26. RCW
43.62.035 and 1995 c 162 s 1 are each amended to read as follows:
The
office of financial management shall determine the population of each county of
the state annually as of April 1st of each year and on or before July 1st of
each year shall file a certificate with the secretary of state showing its
determination of the population for each county. The office of financial
management also shall determine the percentage increase in population for each
county over the preceding ten-year period, as of April 1st, and shall file a
certificate with the secretary of state by July 1st showing its determination.
At least once every ((ten)) five years or upon the availability
of decennial census data, whichever is later, the office of financial
management shall prepare twenty-year growth management planning population
projections required by RCW 36.70A.110 for each county that adopts a
comprehensive plan under RCW 36.70A.040 and shall review these projections with
such counties and the cities in those counties before final adoption. The
county and its cities may provide to the office such information as they deem
relevant to the office's projection, and the office shall consider and comment
on such information before adoption. Each projection shall be expressed as a
reasonable range developed within the standard state high and low projection.
The middle range shall represent the office's estimate of the most likely population
projection for the county. If any city or county believes that a projection
will not accurately reflect actual population growth in a county, it may
petition the office to revise the projection accordingly. The office shall
complete the first set of ranges for every county by December 31, 1995.
A
comprehensive plan adopted or amended before December 31, 1995, shall not be
considered to be in noncompliance with the twenty-year growth management
planning population projection if the projection used in the comprehensive plan
is in compliance with the range later adopted under this section.
NEW
SECTION. Sec. 27. In
order to ensure that there will be no unfunded responsibilities imposed on
counties and cities, if specific funding for the purposes of section 25 of this
act, referencing this act by bill or chapter number, is not provided by June
30, 1997, in the omnibus appropriations act, section 25 of this act is null and
void.
Sec.
28. RCW 36.70A.500
and 1995 c 347 s 116 are each amended to read as follows:
(1)
The department of community, trade, and economic development shall provide
management services for the fund created by RCW 36.70A.490. The department ((by
rule)) shall establish procedures for fund management. The department
shall encourage participation in the grant program by other public agencies.
The department shall develop the grant criteria, monitor the grant program, and
select grant recipients in consultation with state agencies participating in
the grant program through the provision of grant funds or technical assistance.
(2)
A grant may be awarded to a county or city that is required to or has chosen to
plan under RCW 36.70A.040 and that is qualified pursuant to this section. The
grant shall be provided to assist a county or city in paying for the cost of
preparing ((a detailed environmental impact statement)) an
environmental analysis under chapter 43.21C RCW, that is integrated with a
comprehensive plan ((or)), subarea plan ((and)), plan
element, county-wide planning policy, development regulation((s)),
monitoring program, or other planning activity adopted under or implementing
this chapter that:
(a)
Improves the process for project permit review while maintaining environmental
quality; or
(b)
Encourages use of plans and information developed for purposes of complying
with this chapter to satisfy requirements of other state programs.
(3)
In order to qualify for a grant, a county or city shall:
(a)
Demonstrate that it will prepare an environmental analysis pursuant to chapter
43.21C RCW and subsection (2) of this section that is integrated with a
comprehensive plan ((or)), subarea plan ((and)), plan element,
county-wide planning policy, development regulations, monitoring
program, or other planning activity adopted under or implementing this chapter;
(b)
Address environmental impacts and consequences, alternatives, and mitigation
measures in sufficient detail to allow the analysis to be adopted in whole or
in part by ((subsequent)) applicants for development permits within the
geographic area analyzed in the plan;
(c)
Demonstrate that procedures for review of development permit applications
will be based on the integrated plans and environmental analysis;
(d)
Include mechanisms ((in the plan)) to monitor the consequences of growth
as it occurs in the plan area and ((provide ongoing)) to use the
resulting data to update the plan, policy, or implementing mechanisms
and associated environmental analysis;
(((d)
Be making)) (e) Demonstrate substantial progress towards compliance
with the requirements of this chapter. A county or city that is more than six
months out of compliance with a requirement of this chapter is deemed not to be
making substantial progress towards compliance; and
(((e)))
(f) Provide local funding, which may include financial participation by
the private sector.
(4)
In awarding grants, the department shall give preference to proposals that
include one or more of the following elements:
(a)
Financial participation by the private sector, or a public/private partnering
approach;
(b)
((Comprehensive and subarea plan proposals that are designed to identify and
monitor)) Identification and monitoring of system capacities for
elements of the built environment, and to the extent appropriate, of the
natural environment;
(c)
Coordination with state, federal, and tribal governments in project review;
(d)
Furtherance of important state objectives related to economic development,
protection of areas of state-wide significance, and siting of essential public
facilities;
(e)
Programs to improve the efficiency and effectiveness of the permitting process
by greater reliance on integrated plans and prospective environmental
analysis;
(((d)))
(f) Programs for effective citizen and neighborhood involvement that
contribute to greater ((certainty)) likelihood that planning
decisions ((will)) can be implemented with community support;
and
(((e)
Plans that)) (g) Programs to identify environmental impacts and
establish mitigation measures that provide effective means to satisfy
concurrency requirements and establish project consistency with the plans.
(5)
If the local funding includes funding provided by other state functional
planning programs, including open space planning and watershed or basin
planning, the functional plan shall be integrated into and be consistent with
the comprehensive plan.
(6)
State agencies shall work with grant recipients to facilitate state and local
project review processes that will implement the projects receiving grants
under this section.
Sec.
29. RCW
43.155.070 and 1996 c 168 s 3 are each amended to read as follows:
(1)
To qualify for loans or pledges under this chapter the board must determine
that a local government meets all of the following conditions:
(a)
The city or county must be imposing a tax under chapter 82.46 RCW at a rate of
at least one-quarter of one percent;
(b)
The local government must have developed a long-term plan for financing public
works needs;
(c)
The local government must be using all local revenue sources which are
reasonably available for funding public works, taking into consideration local
employment and economic factors; and
(d)
Except where necessary to address a public health need or substantial
environmental degradation, a county, city, or town that is required or
chooses to plan under RCW 36.70A.040 must have adopted a comprehensive plan in
conformance with the requirements of chapter 36.70A RCW, after it is required
that the comprehensive plan be adopted, and must have adopted development
regulations in conformance with the requirements of chapter 36.70A RCW, after
it is required that development regulations be adopted.
(2)
The board shall develop a priority process for public works projects as
provided in this section. The intent of the priority process is to maximize
the value of public works projects accomplished with assistance under this
chapter. The board shall attempt to assure a geographical balance in assigning
priorities to projects. The board shall consider at least the following
factors in assigning a priority to a project:
(a)
Whether the local government receiving assistance has experienced severe fiscal
distress resulting from natural disaster or emergency public works needs;
(b)
Whether the project is critical in nature and would affect the health and
safety of a great number of citizens;
(c)
The cost of the project compared to the size of the local government and amount
of loan money available;
(d)
The number of communities served by or funding the project;
(e)
Whether the project is located in an area of high unemployment, compared to the
average state unemployment;
(f)
Whether the project is the acquisition, expansion, improvement, or renovation
by a local government of a public water system that is in violation of health
and safety standards, including the cost of extending existing service to such
a system;
(g)
The relative benefit of the project to the community, considering the present
level of economic activity in the community and the existing local capacity to
increase local economic activity in communities that have low economic growth;
and
(h)
Other criteria that the board considers advisable.
(3)
Existing debt or financial obligations of local governments shall not be
refinanced under this chapter. Each local government applicant shall provide
documentation of attempts to secure additional local or other sources of
funding for each public works project for which financial assistance is sought
under this chapter.
(4)
Before November 1 of each year, the board shall develop and submit to the
appropriate fiscal committees of the senate and house of representatives a
description of the loans made under RCW 43.155.065, 43.155.068, and subsection
(7) of this section during the preceding fiscal year and a prioritized list of
projects which are recommended for funding by the legislature, including one
copy to the staff of each of the committees. The list shall include, but not
be limited to, a description of each project and recommended financing, the
terms and conditions of the loan or financial guarantee, the local government
jurisdiction and unemployment rate, demonstration of the jurisdiction's
critical need for the project and documentation of local funds being used to
finance the public works project. The list shall also include measures of
fiscal capacity for each jurisdiction recommended for financial assistance,
compared to authorized limits and state averages, including local government
sales taxes; real estate excise taxes; property taxes; and charges for or taxes
on sewerage, water, garbage, and other utilities.
(5)
The board shall not sign contracts or otherwise financially obligate funds from
the public works assistance account before the legislature has appropriated
funds for a specific list of public works projects. The legislature may remove
projects from the list recommended by the board. The legislature shall not
change the order of the priorities recommended for funding by the board.
(6)
Subsection (5) of this section does not apply to loans made under RCW
43.155.065, 43.155.068, and subsection (7) of this section.
(7)(a)
Loans made for the purpose of capital facilities plans shall be exempted from
subsection (5) of this section. In no case shall the total amount of funds
utilized for capital facilities plans and emergency loans exceed the limitation
in RCW 43.155.065.
(b)
For the purposes of this section "capital facilities plans" means
those plans required by the growth management act, chapter 36.70A RCW, and
plans required by the public works board for local governments not subject to
the growth management act.
(8)
To qualify for loans or pledges for solid waste or recycling facilities under
this chapter, a city or county must demonstrate that the solid waste or
recycling facility is consistent with and necessary to implement the
comprehensive solid waste management plan adopted by the city or county under
chapter 70.95 RCW.
Sec.
30. RCW
70.146.070 and 1991 sp.s. c 32 s 24 are each amended to read as follows:
When
making grants or loans for water pollution control facilities, the department
shall consider the following:
(1)
The protection of water quality and public health;
(2)
The cost to residential ratepayers if they had to finance water pollution
control facilities without state assistance;
(3)
Actions required under federal and state permits and compliance orders;
(4)
The level of local fiscal effort by residential ratepayers since 1972 in
financing water pollution control facilities;
(5)
The extent to which the applicant county or city, or if the applicant is another
public body, the extent to which the county or city in which the applicant
public body is located, has established programs to mitigate nonpoint pollution
of the surface or subterranean water sought to be protected by the water
pollution control facility named in the application for state assistance; and
(6)
The recommendations of the Puget Sound ((water quality authority)) action
team and any other board, council, commission, or group established by the
legislature or a state agency to study water pollution control issues in the
state.
Except
where necessary to address a public health need or substantial environmental
degradation, a county, city, or town that is required or chooses to plan
under RCW 36.70A.040 may not receive a grant or loan for water pollution
control facilities unless it has adopted a comprehensive plan in conformance
with the requirements of chapter 36.70A RCW, after it is required that the
comprehensive plan be adopted, or unless it has adopted development regulations
in conformance with the requirements of chapter 36.70A RCW, after it is
required that development regulations be adopted.
Sec.
31. RCW
84.34.020 and 1992 c 69 s 4 are each amended to read as follows:
As
used in this chapter, unless a different meaning is required by the context:
(1)
"Open space land" means (a) any land area so designated by an
official comprehensive land use plan adopted by any city or county and zoned
accordingly(([,])), or (b) any land area, the preservation of
which in its present use would (i) conserve and enhance natural or scenic
resources, or (ii) protect streams or water supply, or (iii) promote
conservation of soils, wetlands, beaches or tidal marshes, or (iv) enhance the
value to the public of abutting or neighboring parks, forests, wildlife
preserves, nature reservations or sanctuaries or other open space, or (v)
enhance recreation opportunities, or (vi) preserve historic sites, or (vii)
preserve visual quality along highway, road, and street corridors or scenic
vistas, or (viii) retain in its natural state tracts of land not less than one
acre situated in an urban area and open to public use on such conditions as may
be reasonably required by the legislative body granting the open space
classification, or (c) any land meeting the definition of farm and agricultural
conservation land under subsection (8) of this section. As a condition of
granting open space classification, the legislative body may not require public
access on land classified under (b)(iii) of this subsection for the purpose of
promoting conservation of wetlands.
(2)
"Farm and agricultural land" means ((either)):
(a)
Any parcel of land that is twenty or more acres or multiple parcels of
land that are contiguous and total twenty or more acres:
(i)
Devoted primarily to the production of livestock or agricultural
commodities for commercial purposes((,));
(ii)
Enrolled in the federal conservation reserve program or its successor
administered by the United States department of agriculture((,));
or
(iii)
Other similar commercial activities as may be established by rule ((following
consultation with the advisory committee established in section 19 of this act));
(b)
Any parcel of land that is five acres or more but less than twenty acres
devoted primarily to agricultural uses, which has produced a gross income from
agricultural uses equivalent to, as of January 1, 1993((,)):
(i)
One hundred dollars or more per acre per year for three of the five
calendar years preceding the date of application for classification under this
chapter for all parcels of land that are classified under this subsection or
all parcels of land for which an application for classification under this
subsection is made with the granting authority prior to January 1, 1993((,));
and
(ii)
On or after January 1, 1993, two hundred dollars or more per acre per
year for three of the five calendar years preceding the date of application for
classification under this chapter;
(c)
Any parcel of land of less than five acres devoted primarily to
agricultural uses which has produced a gross income as of January 1, 1993, of:
(i)
One thousand dollars or more per year for three of the five calendar
years preceding the date of application for classification under this chapter
for all parcels of land that are classified under this subsection or all
parcels of land for which an application for classification under this subsection
is made with the granting authority prior to January 1, 1993((,));
and
(ii)
On or after January 1, 1993, fifteen hundred dollars or more per year
for three of the five calendar years preceding the date of application for
classification under this chapter.
Parcels
of land described in (b)(i) and (c)(i) of this subsection shall, upon any
transfer of the property excluding a transfer to a surviving spouse, be subject
to the limits of (b)(ii) and (c)(ii) of this subsection.
Agricultural
lands shall also include such incidental uses as are compatible with
agricultural purposes, including wetlands preservation, provided such
incidental use does not exceed twenty percent of the classified land and the
land on which appurtenances necessary to the production, preparation, or sale
of the agricultural products exist in conjunction with the lands producing such
products. Agricultural lands shall also include any parcel of land of one to
five acres, which is not contiguous, but which otherwise constitutes an integral
part of farming operations being conducted on land qualifying under this
section as "farm and agricultural lands"; ((or))
(d)
The land on which housing for employees and the principal place of
residence of the farm operator or owner of land classified pursuant to (a) of
this subsection is sited if: The housing or residence is on or contiguous to
the classified parcel; and the use of the housing or the residence is integral
to the use of the classified land for agricultural purposes;
(e)
Any parcel of land designated as agricultural land under RCW 36.70A.170; or
(f)
Any parcel of land not within an urban growth area zoned as agricultural land
under a comprehensive plan adopted under chapter 36.70A RCW.
(3)
"Timber land" means any parcel of land that is five or more acres or
multiple parcels of land that are contiguous and total five or more acres which
is or are devoted primarily to the growth and harvest of forest crops for
commercial purposes. A timber management plan shall be filed with the county
legislative authority at the time (a) an application is made for classification
as timber land pursuant to this chapter or (b) when a sale or transfer of
timber land occurs and a notice of classification continuance is signed.
Timber land means the land only.
(4)
"Current" or "currently" means as of the date on which
property is to be listed and valued by the assessor.
(5)
"Owner" means the party or parties having the fee interest in land,
except that where land is subject to real estate contract "owner"
shall mean the contract vendee.
(6)
"Contiguous" means land adjoining and touching other property held by
the same ownership. Land divided by a public road, but otherwise an integral
part of a farming operation, shall be considered contiguous.
(7)
"Granting authority" means the appropriate agency or official who
acts on an application for classification of land pursuant to this chapter.
(8)
"Farm and agricultural conservation land" means either:
(a)
Land that was previously classified under subsection (2) of this section, that
no longer meets the criteria of subsection (2) of this section, and that is
reclassified under subsection (1) of this section; or
(b)
Land that is traditional farmland that is not classified under chapter 84.33 or
84.34 RCW, that has not been irrevocably devoted to a use inconsistent with
agricultural uses, and that has a high potential for returning to commercial
agriculture.
Sec.
32. RCW
84.34.060 and 1992 c 69 s 8 are each amended to read as follows:
In
determining the true and fair value of open space land and timber land, which
has been classified as such under the provisions of this chapter, the assessor
shall consider only the use to which such property and improvements is currently
applied and shall not consider potential uses of such property. The assessed
valuation of open space land shall not be less than the minimum value per acre
of classified farm and agricultural land except that the assessed valuation of
open space land may be valued based on the public benefit rating system adopted
under RCW 84.34.055: PROVIDED FURTHER, That timber land shall be valued
according to chapter 84.33 RCW. In valuing any tract or parcel of real
property designated and zoned under a comprehensive plan adopted under chapter
36.70A RCW as agricultural, forest, or open space land, the appraisal shall not
be based on similar sales of parcels that have been converted to
nonagricultural, nonforest, or nonopen-space uses within five years after the sale.
Sec.
33. RCW
84.34.065 and 1992 c 69 s 9 are each amended to read as follows:
The
true and fair value of farm and agricultural land shall be determined by
consideration of the earning or productive capacity of comparable lands from
crops grown most typically in the area averaged over not less than five years,
capitalized at indicative rates. The earning or productive capacity of farm
and agricultural lands shall be the "net cash rental", capitalized at
a "rate of interest" charged on long term loans secured by a mortgage
on farm or agricultural land plus a component for property taxes. The current
use value of land under RCW 84.34.020(2)(d) shall be established as: The prior
year's average value of open space farm and agricultural land used in the
county plus the value of land improvements such as septic, water, and power
used to serve the residence. This shall not be interpreted to require the
assessor to list improvements to the land with the value of the land.
In
valuing any tract or parcel of real property designated and zoned under a
comprehensive plan adopted under chapter 36.70A RCW as agricultural, forest, or
open space land, the appraisal shall not be based on similar sales of parcels
that have been converted to nonagricultural, nonforest, or nonopen-space uses
within five years after the sale.
For
the purposes of the above computation:
(1)
The term "net cash rental" shall mean the average rental paid on an
annual basis, in cash, for the land being appraised and other farm and
agricultural land of similar quality and similarly situated that is available
for lease for a period of at least three years to any reliable person without
unreasonable restrictions on its use for production of agricultural crops.
There shall be allowed as a deduction from the rental received or computed any
costs of crop production charged against the landlord if the costs are such as
are customarily paid by a landlord. If "net cash rental" data is not
available, the earning or productive capacity of farm and agricultural lands
shall be determined by the cash value of typical or usual crops grown on land
of similar quality and similarly situated averaged over not less than five
years. Standard costs of production shall be allowed as a deduction from the
cash value of the crops.
The
current "net cash rental" or "earning capacity" shall be
determined by the assessor with the advice of the advisory committee as
provided in RCW 84.34.145, and through a continuing internal study, assisted by
studies of the department of revenue. This net cash rental figure as it
applies to any farm and agricultural land may be challenged before the same
boards or authorities as would be the case with regard to assessed values on
general property.
(2)
The term "rate of interest" shall mean the rate of interest charged
by the farm credit administration and other large financial institutions
regularly making loans secured by farm and agricultural lands through mortgages
or similar legal instruments, averaged over the immediate past five years.
The
"rate of interest" shall be determined annually by a rule adopted by
the department of revenue and such rule shall be published in the state
register not later than January 1 of each year for use in that assessment
year. The department of revenue determination may be appealed to the state
board of tax appeals within thirty days after the date of publication by any
owner of farm or agricultural land or the assessor of any county containing
farm and agricultural land.
(3)
The "component for property taxes" shall be a figure obtained by
dividing the assessed value of all property in the county into the property
taxes levied within the county in the year preceding the assessment and
multiplying the quotient obtained by one hundred.
Sec.
34. RCW
84.40.030 and 1994 c 124 s 20 are each amended to read as follows:
All
property shall be valued at one hundred percent of its true and fair value in
money and assessed on the same basis unless specifically provided otherwise by
law.
Taxable
leasehold estates shall be valued at such price as they would bring at a fair,
voluntary sale for cash without any deductions for any indebtedness owed
including rentals to be paid.
The
true and fair value of real property for taxation purposes (including property
upon which there is a coal or other mine, or stone or other quarry) shall be
based upon the following criteria:
(1)
Any sales of the property being appraised or similar properties with respect to
sales made within the past five years. The appraisal shall be consistent with
the comprehensive land use plan, development regulations under chapter 36.70A
RCW, zoning, and any other governmental policies or practices in effect at the
time of appraisal that affect the use of property, as well as physical and
environmental influences. The appraisal shall also take into account: (a) In
the use of sales by real estate contract as similar sales, the extent, if any,
to which the stated selling price has been increased by reason of the down
payment, interest rate, or other financing terms; and (b) the extent to which
the sale of a similar property actually represents the general effective market
demand for property of such type, in the geographical area in which such
property is located. Sales involving deed releases or similar seller-developer
financing arrangements shall not be used as sales of similar property.
(2)
In addition to sales as defined in subsection (1), consideration may be given
to cost, cost less depreciation, reconstruction cost less depreciation, or
capitalization of income that would be derived from prudent use of the property.
In the case of property of a complex nature, or being used under terms of a
franchise from a public agency, or operating as a public utility, or property
not having a record of sale within five years and not having a significant
number of sales of similar property in the general area, the provisions of this
subsection (2) shall be the dominant factors in valuation. When provisions of
this subsection (2) are relied upon for establishing values the property owner
shall be advised upon request of the factors used in arriving at such value.
(3)
In valuing any tract or parcel of real property, the value of the land,
exclusive of structures thereon shall be determined; also the value of
structures thereon, but the valuation shall not exceed the value of the total
property as it exists. In valuing agricultural land, growing crops shall be
excluded.
(4)
In valuing any tract or parcel of real property designated and zoned under a
comprehensive plan adopted under chapter 36.70A RCW as agricultural, forest, or
open space land, the appraisal shall not be based on similar sales of parcels
that have been converted to nonagricultural, nonforest, or nonopen-space uses
within five years after the sale.
Sec.
35. RCW
90.60.030 and 1995 c 347 s 603 are each amended to read as follows:
The
permit assistance center is established within the department. The center
shall:
(1)
Publish and keep current one or more handbooks containing lists and
explanations of all permit laws. ((The center shall coordinate with the
business assistance center in providing and maintaining this information to
applicants and others.)) To the extent possible, the handbook shall
include relevant federal and tribal laws. A state agency or local government
shall provide a reasonable number of copies of application forms, statutes,
ordinances, rules, handbooks, and other informational material requested by the
center and shall otherwise fully cooperate with the center. The center shall
seek the cooperation of relevant federal agencies and tribal governments;
(2)
Establish, and make known, a point of contact for distribution of the handbook
and advice to the public as to its interpretation in any given case;
(3)
Work closely and cooperatively with the business license center ((and the
business assistance center)) in providing efficient and nonduplicative
service to the public;
(4)
Seek the assignment of employees from the permit agencies listed under RCW
90.60.020(6)(a) to serve on a rotating basis in staffing the center; ((and))
(5)
Collect and disseminate information to public and private entities on
federal, state, local, and tribal government programs that rely on private
professional expertise to assist governmental agencies in project permit
review; and
(6)
Provide an annual report to the legislature on potential conflicts and
perceived inconsistencies among existing statutes. The first report shall be
submitted to the appropriate standing committees of the house of
representatives and senate by December 1, 1996.
Sec.
36. RCW
35A.14.295 and 1967 ex.s. c 119 s 35A.14.295 are each amended to read as
follows:
((When
there is, within)) (1) The legislative body of a code city may
resolve to annex territory containing residential property owners to the city
if there is within the city, unincorporated territory:
(a)
Containing less than one hundred acres and having at least eighty percent
of the boundaries of such area contiguous to the code city((, the
legislative body may resolve to annex such territory to the code city));
or
(b)
Of any size and having at least eighty percent of the boundaries of such area
contiguous to the city if such area existed before June 30, 1994, and is within
the same county and within the same urban growth area designated under RCW
36.70A.110, and the city was planning under chapter 36.70A RCW as of June 30,
1994.
(2)
The resolution shall describe the boundaries of the area to be annexed, state
the number of voters residing therein as nearly as may be, and set a date for a
public hearing on such resolution for annexation. Notice of the hearing shall
be given by publication of the resolution at least once a week for two weeks
prior to the date of the hearing, in one or more newspapers of general
circulation within the code city and one or more newspapers of general
circulation within the area to be annexed.
(3)
For purposes of subsection (1)(b) of this section, territory bounded by a
river, lake, or other body of water is considered contiguous to a city that is
also bounded by the same river, lake, or other body of water.
NEW
SECTION. Sec. 37. A
new section is added to chapter 35.13 RCW to read as follows:
(1)
The legislative body of a city or town planning under chapter 36.70A RCW as of
June 30, 1994, may resolve to annex territory to the city or town if there is,
within the city or town, unincorporated territory containing residential
property owners within the same county and within the same urban growth area
designated under RCW 36.70A.110 as the city or town:
(a)
Containing less than one hundred acres and having at least eighty percent of
the boundaries of such area contiguous to the city or town if such area existed
before June 30, 1994; or
(b)
Of any size and having at least eighty percent of the boundaries of the area
contiguous to the city if the area existed before June 30, 1994.
(2)
The resolution shall describe the boundaries of the area to be annexed, state
the number of voters residing in the area as nearly as may be, and set a date
for a public hearing on the resolution for annexation. Notice of the hearing
shall be given by publication of the resolution at least once a week for two
weeks before the date of the hearing in one or more newspapers of general
circulation within the city or town and one or more newspapers of general
circulation within the area to be annexed.
(3)
For purposes of subsection (1)(b) of this section, territory bounded by a
river, lake, or other body of water is considered contiguous to a city that is
also bounded by the same river, lake, or other body of water.
Sec.
38. RCW
35.13.174 and 1973 1st ex.s. c 164 s 17 are each amended to read as follows:
Upon receipt by the board of county commissioners of a
determination by a majority of the review board favoring annexation of the
proposed area that has been initiated by resolution pursuant to RCW 35.13.015
by the city or town legislative body, the board of county commissioners, or
the city or town legislative body for any city or town within an urban growth
area designated under RCW 36.70A.110, shall fix a date on which an
annexation election shall be held, which date will be not less than thirty days
nor more than sixty days thereafter.
Sec.
39. RCW
36.93.170 and 1989 c 84 s 5 are each amended to read as follows:
In
reaching a decision on a proposal or an alternative, the board shall consider
the factors affecting such proposal, which shall include, but not be limited to
the following:
(1)
Population and territory; population density; land area and land uses; comprehensive
plans and zoning, as adopted under chapter 35.63, 35A.63, or 36.70 RCW; comprehensive
plans and development regulations adopted under chapter 36.70A RCW; applicable
service agreements entered into under chapter 36.115 or 39.34 RCW; applicable
interlocal annexation agreements between a county and its cities; per
capita assessed valuation; topography, natural boundaries and drainage basins,
proximity to other populated areas; the existence and preservation of prime
agricultural soils and productive agricultural uses; the likelihood of
significant growth in the area and in adjacent incorporated and unincorporated
areas during the next ten years; location and most desirable future location of
community facilities;
(2)
Municipal services; need for municipal services; effect of ordinances,
governmental codes, regulations and resolutions on existing uses; present cost
and adequacy of governmental services and controls in area; prospects of
governmental services from other sources; probable future needs for such
services and controls; probable effect of proposal or alternative on cost and
adequacy of services and controls in area and adjacent area; the effect on the
finances, debt structure, and contractual obligations and rights of all
affected governmental units; and
(3)
The effect of the proposal or alternative on adjacent areas, on mutual economic
and social interests, and on the local governmental structure of the county.
The
provisions of chapter 43.21C RCW, State Environmental Policy, shall not apply
to incorporation proceedings covered by chapter 35.02 RCW.
Sec.
40. RCW
84.14.010 and 1995 c 375 s 3 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1)
"City" means either (a) a city or town with a population of at
least one hundred ((fifty)) thousand or (b) the largest city or town,
if there is no city or town with a population of at least one hundred thousand,
located in a county planning under the growth management act.
(2)
"Governing authority" means the local legislative authority of a city
having jurisdiction over the property for which an exemption may be applied for
under this chapter.
(3)
"Growth management act" means chapter 36.70A RCW.
(4)
"Multiple-unit housing" means a building having four or more dwelling
units not designed or used as transient accommodations and not including hotels
and motels. Multifamily units may result from new construction or rehabilitated
or conversion of vacant, underutilized, or substandard buildings to multifamily
housing.
(5)
"Owner" means the property owner of record.
(6)
"Permanent residential occupancy" means multiunit housing that
provides either rental or owner occupancy on a nontransient basis. This
includes owner-occupied or rental accommodation that is leased for a period of
at least one month. This excludes hotels and motels that predominately offer
rental accommodation on a daily or weekly basis.
(7)
"Rehabilitation improvements" means modifications to existing
structures, that are vacant for twelve months or longer, that are made to
achieve a condition of substantial compliance with existing building codes or
modification to existing occupied structures which increase the number of
multifamily housing units.
(8)
"Residential targeted area" means an area within an urban center that
has been designated by the governing authority as a residential targeted area
in accordance with this chapter.
(9)
"Substantial compliance" means compliance with local building or
housing code requirements that are typically required for rehabilitation as
opposed to new construction.
(10)
"Urban center" means a compact identifiable district where urban
residents may obtain a variety of products and services. An urban center must
contain:
(a)
Several existing or previous, or both, business establishments that may include
but are not limited to shops, offices, banks, restaurants, governmental
agencies;
(b)
Adequate public facilities including streets, sidewalks, lighting, transit,
domestic water, and sanitary sewer systems; and
(c)
A mixture of uses and activities that may include housing, recreation, and
cultural activities in association with either commercial or office, or both,
use.
NEW
SECTION. Sec. 41. A
new section is added to chapter 36.70A RCW to read as follows:
The
legislature recognizes that the preservation of urban greenbelts is an integral
part of comprehensive growth management in Washington. The legislature further
recognizes that certain greenbelts are subject to adverse possession action
which, if carried out, threaten the comprehensive nature of this chapter.
Therefore, a party shall not acquire by adverse possession property that is
designated as a plat greenbelt or open space area or that is dedicated as open
space to a public agency or to a bona fide homeowner's association.
Sec.
42. RCW
84.14.030 and 1995 c 375 s 6 are each amended to read as follows:
An
owner of property making application under this chapter must meet the following
requirements:
(1)
The new or rehabilitated multiple-unit housing must be located in a residential
targeted area as designated by the city;
(2)
The multiple-unit housing must meet the guidelines as adopted by the governing
authority that may include height, density, public benefit features, number and
size of proposed development, parking, low-income or moderate-income
occupancy requirements, and other adopted requirements indicated necessary
by the city. The required amenities should be relative to the size of the
project and tax benefit to be obtained;
(3)
The new, converted, or rehabilitated multiple-unit housing must provide for a
minimum of fifty percent of the space for permanent residential occupancy. In
the case of existing occupied multifamily development, the multifamily housing
must also provide for a minimum of four additional multifamily units. Existing
multifamily vacant housing that has been vacant for twelve months or more does
not have to provide additional multifamily units;
(4)
New construction multifamily housing and rehabilitation improvements must be
completed within three years from the date of approval of the application;
(5)
Property proposed to be rehabilitated must be vacant at least twelve months
before submitting an application and fail to comply with one or more standards
of the applicable state or local building or housing codes on or after July 23,
1995; and
(6)
The applicant must enter into a contract with the city approved by the
governing body under which the applicant has agreed to the implementation of
the development on terms and conditions satisfactory to the governing
authority.
Sec.
43. RCW
84.14.050 and 1995 c 375 s 8 are each amended to read as follows:
An
owner of property seeking tax incentives under this chapter must complete the
following procedures:
(1)
In the case of rehabilitation or where demolition or new construction is
required, the owner shall secure from the governing authority or duly
authorized agent, before commencement of rehabilitation improvements or new
construction, verification of property noncompliance with applicable building
and housing codes;
(2)
In the case of new and rehabilitated multifamily housing, the owner shall apply
to the city on forms adopted by the governing authority. The application must
contain the following:
(a)
Information setting forth the grounds supporting the requested exemption
including information indicated on the application form or in the guidelines;
(b)
A description of the project and site plan, including the floor plan of units
and other information requested;
(c)
A statement that the applicant is aware of the potential tax liability involved
when the property ceases to be eligible for the incentive provided under this
chapter;
(3)
The applicant must verify the application by oath or affirmation; and
(4)
The application must be made on or before April 1 of each year, and must be
accompanied by the application fee, if any, required under RCW ((84.14.070))
84.14.080. The governing authority may permit the applicant to revise
an application before final action by the governing authority.
Sec.
44. RCW
90.61.020 and 1995 c 347 s 802 are each amended to read as follows:
The
commission shall consist of not more than ((fourteen)) twenty-two
members. ((Eleven)) Fifteen members of the commission shall be
appointed by the governor. ((Membership)) The commission members
appointed by the governor shall reflect the interests of business, ((agriculture))
operators of small businesses, owners of small property holdings, livestock
producers, irrigated agriculture, dryland farmers or major crop commodity producers,
labor, the environment, neighborhood groups, other citizens, the legislature,
cities, counties, and federally recognized Indian tribes. ((Members)) The
commission members appointed by the governor shall have substantial
experience in matters relating to land use and environmental planning and
regulation, and shall have the ability to work toward cooperative solutions
among diverse interests. The director of the department of community, trade,
and economic development, or the director’s designee, shall be a member and
shall serve as chair of the commission. The director of the department of
ecology, or the director’s designee, and the secretary of the department of
transportation, or the secretary's designee, shall also be members of the commission.
Two members of the commission shall be members of the senate, one from each
caucus appointed by the president of the senate, and two members of the
commission shall be members of the house of representatives, one from each
caucus appointed by the speaker of the house of representatives. Staff for
the commission shall be provided by the department of community, trade, and
economic development, with additional staff to be provided by other state
agencies and the legislature, as may be required. State agencies shall provide
the commission with information and assistance as needed.
This
section expires June 30, 1998.
Sec.
45. RCW
90.61.040 and 1995 c 347 s 804 are each amended to read as follows:
The
commission shall:
(1)
Consider the effectiveness of state and local government efforts to consolidate
and integrate the growth management act, the state environmental policy act,
the shoreline management act, and other land use, planning, environmental, and
permitting laws.
(2)
Identify the revisions and modifications needed in state land use, planning,
and environmental law and practice to adequately plan for growth and achieve
economically and environmentally sustainable development, to adequately assess
environmental impacts of comprehensive plans, development regulations, and
growth, and to reduce the time and cost of obtaining project permits.
(3)
Draft a consolidated land use procedure, following these guidelines:
(a)
Conduct land use planning through the comprehensive planning process under
chapter 36.70A RCW rather than through review of individual projects;
(b)
Involve diverse sectors of the public in the planning process. Early and
informal environmental analysis should be incorporated into planning and
decision making;
(c)
Recognize that different questions need to be answered and different levels of
detail applied at each planning phase, from the initial development of plan
concepts or plan elements to implementation programs;
(d)
Integrate and combine to the fullest extent possible the processes, analysis,
and documents currently required under chapters 36.70A and 43.21C RCW, so that
subsequent plan decisions and subsequent implementation will incorporate
measures to promote the environmental, economic, and other goals and to
mitigate undesirable or unintended adverse impacts on a community's quality of
life;
(e)
Focus environmental review and the level of detail needed for different stages
of plan and project decisions on the environmental considerations most relevant
to that stage of the process;
(f)
Avoid duplicating review that has occurred for plan decisions when specific
projects are proposed;
(g)
Use environmental review on projects to: (i) Review and document consistency
with comprehensive plans and development regulations; (ii) provide prompt and
coordinated review by agencies, tribes, and the public on compliance with
applicable environmental laws and plans, including mitigation for site specific
project impacts that have not been considered and addressed at the plan or
development regulation level; and (iii) ensure accountability by local
government to applicants and the public for requiring and implementing
mitigation measures;
(h)
Maintain or improve the quality of environmental analysis both for plan and for
project decisions, while integrating these analyses with improved state and
local planning and permitting processes;
(i)
Examine existing land use and environmental permits for necessity and utility.
To the extent possible, existing permits should be combined into fewer permits,
assuring that the values and principles intended to be protected by those
permits remain protected; and
(j)
Consolidate local government appeal processes to allow a single appeal of
permits at local government levels, a single state level administrative appeal,
and a final judicial appeal.
(4)
Monitor instances state-wide of the vesting of project permit applications
during the period that an appeal is pending before a growth management hearings
board, as authorized under RCW 36.70A.300. The commission shall also review
the extent to which such vesting results in the approval of projects that are
inconsistent with a comprehensive plan or development regulation provision
ultimately found to be in compliance with a board's order or remand. The
commission shall analyze the impact of such approvals on ensuring the
attainment of the goals and policies of chapter 36.70A RCW, and make
recommendations to the governor and the legislature on statutory changes to
address any adverse impacts from the provisions of RCW 36.70A.300. The
commission shall provide an initial report on its findings and recommendations
by November 1, 1995, and submit its further findings and recommendations
subsequently in the reports required under RCW 90.61.030.
(5)
Monitor local government consolidated permit procedures and the effectiveness
of the timelines established by RCW 36.70B.090. The commission shall include
in its report submitted to the governor and the legislature on November 1,
1997, its recommendation about what timelines, if any, should be imposed on the
local government consolidated permit process required by chapter 36.70B RCW.
(6)
Evaluate funding mechanisms that will enable local governments to pay for and
recover the costs of conducting integrated planning and environmental
analysis. The commission shall include its conclusions in its first report to
the legislature on November 1, 1995, and include any recommended statutory
changes.
(7)
Study, in cooperation with the state board for registration of professional
engineers and the state building code council, ways in which state agencies and
local governments could authorize professionals with appropriate qualifications
to certify a project's compliance with certain state and local land use and
environmental requirements. The commission shall report to the legislature on
measures necessary to implement such a system of professional certification.
(8)
Review long-term approaches for resolving disputes that arise under the growth
management act, chapter 36.70A RCW; the shoreline management act, chapter 90.58
RCW; and other environmental laws. In particular, in the commission's
recommendations on a consolidated land use procedure and integration and
consolidation of Washington's land use and environmental laws, identify needed
changes to the structure of the boards that hear environmental appeals as well
as the extent to which quasi-judicial bodies are needed to provide continued
oversight of matters currently brought before the growth management hearings
board and other boards that hear such appeals.
(9)
If the commission finds that there is no longer a need for the growth
management hearings boards and recommends sunset of the boards, include in its
recommendations a plan for implementing the sunset process. Alternatively, if
the boards are to become advisory bodies with the primary duty of mediating
disputes and making advisory decisions, the commission shall make
recommendations as to how such a change in the board's authority should be
implemented. If the commission makes other recommendations with respect to the
boards, it shall make recommendations to implement any needed changes.
(10)
Evaluate the effect of the 1997 amendments to this chapter that raise the
standard of review of agency, county, and city actions by the growth management
hearings boards and make changes with respect to board determinations of
invalidity, and make recommendations as to whether the latitude of the boards
should be further curtailed and greater deference given to local decisions by
raising the standard of review, limiting the authority of the board to make
determinations of invalidity, or making other changes.
These
guidelines are intended to guide the work of the commission, without limiting
its charge to integrate and consolidate Washington's land use and environmental
laws into a single, manageable statutory framework.
This
section expires June 30, 1998.
Sec.
46. RCW
36.70B.040 and 1995 c 347 s 405 are each amended to read as follows:
(1)
A proposed project's consistency with a local government's development
regulations adopted under chapter 36.70A RCW, or, in the absence of applicable
development regulations, the appropriate elements of the comprehensive plan ((or
subarea plan)) adopted under chapter 36.70A RCW shall be ((determined))
decided by the local government during project review by consideration
of:
(a)
The type of land use;
(b)
The level of development, such as units per acre or other measures of density;
(c)
Infrastructure, including public facilities and services needed to serve the
development; and
(d)
The ((character)) characteristics of the development, such as
development standards.
(2)
In ((determining consistency)) deciding whether a project is
consistent, the determinations made pursuant to RCW 36.70B.030(2) shall be
controlling.
(3)
For purposes of this section, the term "consistency" shall include
all terms used in this chapter and chapter 36.70A RCW to refer to performance
in accordance with this chapter and chapter 36.70A RCW, including but not
limited to compliance, conformity, and consistency.
(4)
Nothing in this section requires documentation, dictates an agency's procedures
for considering consistency, or limits a ((unit of government)) city
or county from asking more specific or related questions with respect to
any of the four main categories listed in subsection (1)(a) through (d) of this
section.
(5)
The department of community, trade, and economic development is authorized to
develop and adopt by rule criteria to assist local governments planning under
RCW 36.70A.040 to analyze the consistency of project actions. These criteria
shall be jointly developed with the department of ecology.
Sec.
47. RCW
43.21C.110 and 1995 c 347 s 206 are each amended to read as follows:
It
shall be the duty and function of the department of ecology:
(1)
To adopt and amend thereafter rules of interpretation and implementation of
this chapter, subject to the requirements of chapter 34.05 RCW, for the purpose
of providing uniform rules and guidelines to all branches of government
including state agencies, political subdivisions, public and municipal
corporations, and counties. The proposed rules shall be subject to full public
hearings requirements associated with rule promulgation. Suggestions for
modifications of the proposed rules shall be considered on their merits, and
the department shall have the authority and responsibility for full and
appropriate independent promulgation and adoption of rules, assuring
consistency with this chapter as amended and with the preservation of
protections afforded by this chapter. The rule-making powers authorized
in this section shall include, but shall not be limited to, the following
phases of interpretation and implementation of this chapter:
(a)
Categories of governmental actions which are not to be considered as potential
major actions significantly affecting the quality of the environment, including
categories pertaining to applications for water right permits pursuant to
chapters 90.03 and 90.44 RCW. The types of actions included as categorical
exemptions in the rules shall be limited to those types which are not major actions
significantly affecting the quality of the environment. The rules shall
provide for certain circumstances where actions which potentially are
categorically exempt require environmental review. An action that is
categorically exempt under the rules adopted by the department may not be
conditioned or denied under this chapter.
(b)
Rules for criteria and procedures applicable to the determination of when an
act of a branch of government is a major action significantly affecting the
quality of the environment for which a detailed statement is required to be
prepared pursuant to RCW 43.21C.030.
(c)
Rules and procedures applicable to the preparation of detailed statements and
other environmental documents, including but not limited to rules for timing of
environmental review, obtaining comments, data and other information, and
providing for and determining areas of public participation which shall include
the scope and review of draft environmental impact statements.
(d)
Scope of coverage and contents of detailed statements assuring that such
statements are simple, uniform, and as short as practicable; statements are
required to analyze only reasonable alternatives and probable adverse
environmental impacts which are significant, and may analyze beneficial impacts.
(e)
Rules and procedures for public notification of actions taken and documents
prepared.
(f)
Definition of terms relevant to the implementation of this chapter including
the establishment of a list of elements of the environment. Analysis of environmental
considerations under RCW 43.21C.030(2) may be required only for those subjects
listed as elements of the environment (or portions thereof). The list of
elements of the environment shall consist of the "natural" and
"built" environment. The elements of the built environment shall
consist of public services and utilities (such as water, sewer, schools, fire
and police protection), transportation, environmental health (such as explosive
materials and toxic waste), and land and shoreline use (including housing, and
a description of the relationships with land use and shoreline plans and
designations, including population).
(g)
Rules for determining the obligations and powers under this chapter of two or
more branches of government involved in the same project significantly
affecting the quality of the environment.
(h)
Methods to assure adequate public awareness of the preparation and issuance of
detailed statements required by RCW 43.21C.030(2)(c).
(i)
To prepare rules for projects setting forth the time limits within which the
governmental entity responsible for the action shall comply with the provisions
of this chapter.
(j)
Rules for utilization of a detailed statement for more than one action and
rules improving environmental analysis of nonproject proposals and encouraging
better interagency coordination and integration between this chapter and other
environmental laws.
(k)
Rules relating to actions which shall be exempt from the provisions of this
chapter in situations of emergency.
(l)
Rules relating to the use of environmental documents in planning and decision
making and the implementation of the substantive policies and requirements of
this chapter, including procedures for appeals under this chapter.
(m)
Rules and procedures that provide for the integration of environmental review
with project review as provided in RCW 43.21C.240. The rules and procedures
shall be jointly developed with the department of community, trade, and
economic development and shall be applicable to the preparation of
environmental documents for actions in counties, cities, and towns planning
under RCW 36.70A.040. The rules and procedures shall also include procedures
and criteria to analyze ((the consistency of project actions, including))
planned actions under RCW 43.21C.031(2)((, with development regulations
adopted under chapter 36.70A RCW, or in the absence of applicable development
regulations, the appropriate elements of a comprehensive plan or subarea plan
adopted under chapter 36.70A RCW)) and revisions to the rules adopted
under this section to ensure that they are compatible with the requirements and
authorizations of chapter 347, Laws of 1995, as amended by chapter
. . ., Laws of 1997 (this act). Ordinances or procedures adopted
by a county, city, or town to implement the provisions of ((RCW 43.21C.240))
chapter 347, Laws of 1995 prior to the effective date of rules adopted
under this subsection (1)(m) shall continue to be effective until the adoption
of any new or revised ordinances or procedures that may be required. If any
revisions are required as a result of rules adopted under this subsection
(1)(m), those revisions shall be made within the time limits specified in RCW
43.21C.120.
(2)
In exercising its powers, functions, and duties under this section, the
department may:
(a)
Consult with the state agencies and with representatives of science, industry,
agriculture, labor, conservation organizations, state and local governments,
and other groups, as it deems advisable; and
(b)
Utilize, to the fullest extent possible, the services, facilities, and
information (including statistical information) of public and private agencies,
organizations, and individuals, in order to avoid duplication of effort and
expense, overlap, or conflict with similar activities authorized by law and
performed by established agencies.
(3)
Rules adopted pursuant to this section shall be subject to the review
procedures of chapter 34.05 RCW.
Sec.
48. RCW
36.70B.110 and 1995 c 347 s 415 are each amended to read as follows:
(1)
Not later than April 1, 1996, a local government planning under RCW 36.70A.040
shall provide a notice of application to the public and the departments and
agencies with jurisdiction as provided in this section. If a local government
has made a determination of significance under chapter 43.21C RCW concurrently
with the notice of application, the notice of application shall be combined
with the determination of significance and scoping notice. Nothing in this
section prevents a determination of significance and scoping notice from being
issued prior to the notice of application. Nothing in this section or this
chapter prevents a lead agency, when it is a project proponent or is funding a
project, from conducting its review under chapter 43.21C RCW or from allowing
appeals of procedural determinations prior to submitting a project permit
application.
(2)
The notice of application shall be provided within fourteen days after the determination
of completeness as provided in RCW 36.70B.070 and, except as limited by the
provisions of subsection (4)(b) of this section, shall include the
following in whatever sequence or format the local government deems
appropriate:
(a)
The date of application, the date of the notice of completion for the
application, and the date of the notice of application;
(b)
A description of the proposed project action and a list of the project permits
included in the application and, if applicable, a list of any studies requested
under RCW 36.70B.070 or 36.70B.090;
(c)
The identification of other permits not included in the application to the
extent known by the local government;
(d)
The identification of existing environmental documents that evaluate the proposed
project, and, if not otherwise stated on the document providing the notice of
application, such as a city land use bulletin, the location where the
application and any studies can be reviewed;
(e)
A statement of the public comment period, which shall be not less than fourteen
nor more than thirty days following the date of notice of application, and
statements of the right of any person to comment on the application, receive
notice of and participate in any hearings, request a copy of the decision once
made, and any appeal rights. A local government may accept public comments at
any time prior to the closing of the record of an open record predecision
hearing, if any, or, if no open record predecision hearing is provided, prior
to the decision on the project permit;
(f)
The date, time, place, and type of hearing, if applicable and scheduled at the
date of notice of the application;
(g)
A statement of the preliminary determination, if one has been made at the time
of notice, of those development regulations that will be used for project
mitigation and of consistency as provided in RCW ((36.70B.040)) 36.70B.030(2);
and
(h)
Any other information determined appropriate by the local government.
(3)
If an open record predecision hearing is required for the requested project
permits, the notice of application shall be provided at least fifteen days
prior to the open record hearing.
(4)
A local government shall use reasonable methods to give the notice of
application to the public and agencies with jurisdiction and may use its
existing notice procedures. A local government may use different types of
notice for different categories of project permits or types of project
actions. If a local government by resolution or ordinance does not specify its
method of public notice, the local government shall use the methods provided
for in (a) and (b) of this subsection. Examples of reasonable methods to
inform the public are:
(a)
Posting the property for site-specific proposals;
(b)
Publishing notice, including at least the project location, description, type
of permit(s) required, comment period dates, and location where the notice
of application required by subsection (2) of this section and the complete
application may be reviewed, in the newspaper of general circulation in the
general area where the proposal is located or in a local land use newsletter
published by the local government;
(c)
Notifying public or private groups with known interest in a certain proposal or
in the type of proposal being considered;
(d)
Notifying the news media;
(e)
Placing notices in appropriate regional or neighborhood newspapers or trade
journals;
(f)
Publishing notice in agency newsletters or sending notice to agency mailing
lists, either general lists or lists for specific proposals or subject areas;
and
(g)
Mailing to neighboring property owners.
(5)
A notice of application shall not be required for project permits that are
categorically exempt under chapter 43.21C RCW, unless ((a public comment
period or)) an open record predecision hearing is required or an open
record appeal hearing is allowed on the project permit decision.
(6)
A local government shall integrate the permit procedures in this section with its
environmental review under chapter 43.21C RCW as follows:
(a)
Except for a determination of significance and except as otherwise expressly
allowed in this section, the local government may not issue its threshold
determination((, or issue a decision or a recommendation on a project permit))
until the expiration of the public comment period on the notice of application.
(b)
If an open record predecision hearing is required ((and the local
government's threshold determination requires public notice under chapter
43.21C RCW)), the local government shall issue its threshold determination
at least fifteen days prior to the open record predecision hearing.
(c)
Comments shall be as specific as possible.
(d)
A local government is not required to provide for administrative appeals of its
threshold determination. If provided, an administrative appeal shall be filed
within fourteen days after notice that the determination has been made and is
appealable. Except as otherwise expressly provided in this section, the appeal
hearing on a determination of nonsignificance shall be consolidated with any
open record hearing on the project permit.
(7)
At the request of the applicant, a local government may combine any
hearing on a project permit with any hearing that may be held by another local,
state, regional, federal, or other agency ((provided that)), if:
(a)
The hearing is held within the geographic boundary of the local
government((. Hearings shall be combined if requested by an applicant, as
long as)); and
(b)
The joint hearing can be held within the time periods specified in RCW
36.70B.090 or the applicant agrees to the schedule in the event that additional
time is needed in order to combine the hearings. All agencies of the state of
Washington, including municipal corporations and counties participating in a
combined hearing, are hereby authorized to issue joint hearing notices and
develop a joint format, select a mutually acceptable hearing body or officer,
and take such other actions as may be necessary to hold joint hearings
consistent with each of their respective statutory obligations.
(8)
All state and local agencies shall cooperate to the fullest extent possible
with the local government in holding a joint hearing if requested to do so, as
long as:
(a)
The agency is not expressly prohibited by statute from doing so;
(b)
Sufficient notice of the hearing is given to meet each of the agencies' adopted
notice requirements as set forth in statute, ordinance, or rule; and
(c)
The agency has received the necessary information about the proposed project
from the applicant to hold its hearing at the same time as the local government
hearing.
(9)
A local government is not required to provide for administrative appeals. If
provided, an administrative appeal of the project decision((, combined with))
and of any environmental determination((s)) issued at the same
time as the project decision, shall be filed within fourteen days after the
notice of the decision or after other notice that the decision has been made
and is appealable. The local government shall extend the appeal period for an
additional seven days, if state or local rules adopted pursuant to chapter
43.21C RCW allow public comment on a determination of nonsignificance issued as
part of the appealable project permit decision.
(10)
The applicant for a project permit is deemed to be a participant in any comment
period, open record hearing, or closed record appeal.
(11)
Each local government planning under RCW 36.70A.040 shall adopt procedures for
administrative interpretation of its development regulations.
Sec.
49. RCW
43.21C.075 and 1995 c 347 s 204 are each amended to read as follows:
(1)
Because a major purpose of this chapter is to combine environmental
considerations with public decisions, any appeal brought under this chapter
shall be linked to a specific governmental action. The State Environmental
Policy Act provides a basis for challenging whether governmental action is in
compliance with the substantive and procedural provisions of this chapter. The
State Environmental Policy Act is not intended to create a cause of action
unrelated to a specific governmental action.
(2)
Unless otherwise provided by this section:
(a)
Appeals under this chapter shall be of the governmental action together with
its accompanying environmental determinations.
(b)
Appeals of environmental determinations made (or lacking) under this chapter
shall be commenced within the time required to appeal the governmental action
which is subject to environmental review.
(3)
If an agency has a procedure for appeals of agency environmental determinations
made under this chapter, such procedure:
(a)
Shall ((not)) allow no more than one agency appeal proceeding on
((a)) each procedural determination (the adequacy of a
determination of significance/nonsignificance or of a final environmental
impact statement)((. The appeal proceeding on a determination of
significance may occur before the agency's final decision on a proposed
action. The appeal proceeding on a determination of nonsignificance may occur
before the agency's final decision on a proposed action only if the appeal is
heard at a proceeding where the hearing body or officer will render a final
recommendation or decision on the proposed underlying governmental action.
Such appeals shall also be allowed for a determination of
significance/nonsignificance which may be issued by the agency after
supplemental review));
(b)
Shall consolidate an appeal of procedural issues and of substantive
determinations made under this chapter (such as a decision to require
particular mitigation measures or to deny a proposal) with a hearing or appeal
on the underlying governmental action by providing for a single simultaneous
hearing before one hearing officer or body to consider the agency decision or
recommendation on a proposal and any environmental determinations made
under this chapter, with the exception of ((the)):
(i)
An appeal((, if any,)) of a determination of significance ((as
provided in (a) of this subsection));
(ii)
An appeal of a procedural determination made by an agency when the agency is a
project proponent, or is funding a project, and chooses to conduct its review
under this chapter, including any appeals of its procedural determinations,
prior to submitting an application for a project permit;
(iii)
An appeal of a procedural determination made by an agency on a nonproject
action; or
(iv)
An appeal to the local legislative authority under RCW 43.21C.060 or other
applicable state statutes;
(c)
Shall provide for the preparation of a record for use in any subsequent appeal
proceedings, and shall provide for any subsequent appeal proceedings to be
conducted on the record, consistent with other applicable law. An adequate
record consists of findings and conclusions, testimony under oath, and taped or
written transcript. An electronically recorded transcript will suffice for
purposes of review under this subsection; and
(d)
Shall provide that procedural determinations made by the responsible official
shall be entitled to substantial weight.
(4)
If a person aggrieved by an agency action has the right to judicial appeal and
if an agency has an administrative appeal procedure, such person shall,
prior to seeking any judicial review, use such agency procedure if any such
procedure is available, unless expressly provided otherwise by state statute.
(5)
Some statutes and ordinances contain time periods for challenging governmental
actions which are subject to review under this chapter, such as various local
land use approvals (the "underlying governmental action"). RCW
43.21C.080 establishes an optional "notice of action" procedure
which, if used, imposes a time period for appealing decisions under this
chapter. This subsection does not modify any such time periods. In this
subsection, the term "appeal" refers to a judicial appeal only.
(a)
If there is a time period for appealing the underlying governmental action,
appeals under this chapter shall be commenced within such time period. The
agency shall give official notice stating the date and place for commencing an
appeal.
(b)
If there is no time period for appealing the underlying governmental action,
and a notice of action under RCW 43.21C.080 is used, appeals shall be commenced
within the time period specified by RCW 43.21C.080.
(6)(a)
Judicial review under subsection (5) of this section of an appeal decision made
by an agency under subsection (3) of this section shall be on the record,
consistent with other applicable law.
(b)
A taped or written transcript may be used. If a taped transcript is to be
reviewed, a record shall identify the location on the taped transcript of
testimony and evidence to be reviewed. Parties are encouraged to designate
only those portions of the testimony necessary to present the issues raised on
review, but if a party alleges that a finding of fact is not supported by
evidence, the party should include in the record all evidence relevant to the
disputed finding. Any other party may designate additional portions of the
taped transcript relating to issues raised on review. A party may provide a
written transcript of portions of the testimony at the party's own expense or
apply to that court for an order requiring the party seeking review to pay for
additional portions of the written transcript.
(c)
Judicial review under this chapter shall without exception be of the
governmental action together with its accompanying environmental
determinations.
(7)
Jurisdiction over the review of determinations under this chapter in an appeal
before an agency or superior court shall upon consent of the parties be
transferred in whole or part to the shorelines hearings board. The shorelines
hearings board shall hear the matter and sign the final order expeditiously.
The superior court shall certify the final order of the shorelines hearings
board and ((said)) the certified final order may only be appealed
to an appellate court. In the case of an appeal under this chapter regarding a
project or other matter that is also the subject of an appeal to the shorelines
hearings board under chapter 90.58 RCW, the shorelines hearings board shall
have sole jurisdiction over both the appeal under this section and the appeal
under chapter 90.58 RCW, shall consider them together, and shall issue a final
order within one hundred eighty days as provided in RCW 90.58.180.
(8)
For purposes of this section and RCW 43.21C.080, the words "action",
"decision", and "determination" mean substantive agency
action including any accompanying procedural determinations under this chapter
(except where the word "action" means "appeal" in RCW
43.21C.080(2)). The word "action" in this section and RCW 43.21C.080
does not mean a procedural determination by itself made under this chapter.
The word "determination" includes any environmental document required
by this chapter and state or local implementing rules. The word
"agency" refers to any state or local unit of government. Except as
provided in subsection (5) of this section, the word "appeal" refers
to administrative, legislative, or judicial appeals.
(9)
The court in its discretion may award reasonable ((attorney's)) attorneys'
fees of up to one thousand dollars in the aggregate to the prevailing party,
including a governmental agency, on issues arising out of this chapter if the
court makes specific findings that the legal position of a party is frivolous
and without reasonable basis.
Sec.
50. RCW
90.58.090 and 1995 c 347 s 306 are each amended to read as follows:
(1)
A master program, segment of a master program, or an amendment to a master
program shall become effective when approved by the department. Within the
time period provided in RCW 90.58.080, each local government shall have
submitted a master program, either totally or by segments, for all shorelines
of the state within its jurisdiction to the department for review and approval.
(2)
Upon receipt of a proposed master program or amendment, the department shall:
(a)
Provide notice to and opportunity for written comment by all interested parties
of record as a part of the local government review process for the proposal and
to all persons, groups, and agencies that have requested in writing notice of
proposed master programs or amendments generally or for a specific area,
subject matter, or issue. The comment period shall be at least thirty days,
unless the department determines that the level of complexity or controversy
involved supports a shorter period;
(b)
In the department's discretion, conduct a public hearing during the thirty-day
comment period in the jurisdiction proposing the master program or amendment;
(c)
Within fifteen days after the close of public comment, request the local
government to review the issues identified by the public, interested parties,
groups, and agencies and provide a written response as to how the proposal
addresses the identified issues;
(d)
Within thirty days after receipt of the local government response pursuant to
(c) of this subsection, make written findings and conclusions regarding the
consistency of the proposal with the policy of RCW 90.58.020 and the applicable
guidelines, provide a response to the issues identified in (c) of this
subsection, and either approve the proposal as submitted, recommend specific
changes necessary to make the proposal approvable, or deny approval of the
proposal in those instances where no alteration of the proposal appears likely
to be consistent with the policy of RCW 90.58.020 and the applicable
guidelines. The written findings and conclusions shall be provided to the
local government, all interested persons, parties, groups, and agencies of
record on the proposal;
(e)
If the department recommends changes to the proposed master program or
amendment, within thirty days after the department mails the written findings
and conclusions to the local government, the local government may:
(i)
Agree to the proposed changes. The receipt by the department of the written
notice of agreement constitutes final action by the department approving the
amendment; or
(ii)
Submit an alternative proposal. If, in the opinion of the department, the
alternative is consistent with the purpose and intent of the changes originally
submitted by the department and with this chapter it shall approve the changes
and provide written notice to all recipients of the written findings and
conclusions. If the department determines the proposal is not consistent with
the purpose and intent of the changes proposed by the department, the
department may resubmit the proposal for public and agency review pursuant to
this section or reject the proposal.
(3)
The department shall approve the segment of a master program relating to
shorelines unless it determines that the submitted segments are not consistent
with the policy of RCW 90.58.020 and the applicable guidelines.
(4)
The department shall approve those segments of the master program relating to
shorelines of state-wide significance only after determining the program provides
the optimum implementation of the policy of this chapter to satisfy the
state-wide interest. If the department does not approve a segment of a local
government master program relating to a shoreline of state-wide significance,
the department may develop and by rule adopt an alternative to the local
government’s proposal.
(5)
In the event a local government has not complied with the requirements of RCW
90.58.070 it may thereafter upon written notice to the department elect to
adopt a master program for the shorelines within its jurisdiction, in which
event it shall comply with the provisions established by this chapter for the
adoption of a master program for such shorelines.
Upon
approval of such master program by the department it shall supersede such
master program as may have been adopted by the department for such shorelines.
(6)
A master program or amendment to a master program takes effect when and in such
form as approved or adopted by the department. Shoreline master programs
that were adopted by the department prior to July 22, 1995, in accordance with
the provisions of this section then in effect, shall be deemed approved by the
department in accordance with the provisions of this section that became
effective on that date. The department shall maintain a record of each
master program, the action taken on any proposal for adoption or amendment of
the master program, and any appeal of the department's action. The
department's approved document of record constitutes the official master program.
Sec.
51. RCW
90.58.143 and 1996 c 62 s 1 are each amended to read as follows:
(1)
The time requirements of this section shall apply to all substantial
development permits and to any development authorized pursuant to a variance or
conditional use permit authorized under this chapter. Upon a finding of good
cause, based on the requirements and circumstances of the project proposed and
consistent with the policy and provisions of the master program and this
chapter, local government may adopt different time limits from those set
forth in subsections (2) and (3) of this section as a part of action on a
substantial development permit.
(2)
Construction activities shall be commenced or, where no construction activities
are involved, the use or activity shall be commenced within two years of the
effective date of a substantial development permit. However, local government
may authorize a single extension for a period not to exceed one year based on
reasonable factors, if a request for extension has been filed before the
expiration date and notice of the proposed extension is given to parties of
record on the substantial development permit and to the department.
(3)
Authorization to conduct construction activities shall terminate five years
after the effective date of a substantial development permit. However, local
government may authorize a single extension for a period not to exceed one year
based on reasonable factors, if a request for extension has been filed before
the expiration date and notice of the proposed extension is given to parties of
record and to the department.
(4)
The effective date of a substantial development permit shall be the date of ((the
last action required on the substantial development permit and all)) filing
as provided in RCW 90.58.140(6). The permit time periods in subsections (2)
and (3) of this section do not include the time during which a use or activity
was not actually pursued due to the pendency of administrative appeals or legal
actions or due to the need to obtain any other government permits and
approvals for the development that authorize the development to proceed,
including all reasonably related administrative ((and)) or
legal actions on any such permits or approvals.
Sec.
52. RCW
34.05.518 and 1995 c 382 s 5 are each amended to read as follows:
(1)
The final decision of an administrative agency in an adjudicative proceeding
under this chapter may be directly reviewed by the court of appeals either (a)
upon certification by the superior court pursuant to this section or (b) if the
final decision is from an environmental board as defined in subsection (3) of
this section, upon acceptance by the court of appeals after a certificate of
appealability has been filed by the environmental board that rendered the final
decision.
(2)
For direct review upon certification by the superior court, an application for
direct review must be filed with the superior court within thirty days of the
filing of the petition for review in superior court. The superior court may
certify a case for direct review only if the judicial review is limited to the
record of the agency proceeding and the court finds that:
(a)
Fundamental and urgent issues affecting the future administrative process or
the public interest are involved which require a prompt determination;
(b)
Delay in obtaining a final and prompt determination of such issues would be
detrimental to any party or the public interest;
(c)
An appeal to the court of appeals would be likely regardless of the
determination in superior court; and
(d)
The appellate court's determination in the proceeding would have significant
precedential value.
Procedures
for certification shall be established by court rule.
(3)(a)
For the purposes of direct review of final decisions of environmental boards,
environmental boards include those boards identified in RCW 43.21B.005 ((and
growth management hearings boards as identified in RCW 36.70A.250)).
(b)
An environmental board may issue a certificate of appealability if it finds
that delay in obtaining a final and prompt determination of the issues would be
detrimental to any party or the public interest and either:
(i)
Fundamental and urgent state-wide or regional issues are raised; or
(ii)
The proceeding is likely to have significant precedential value.
(4)
The environmental board shall state in the certificate of appealability which
criteria it applied, explain how that criteria was met, and file with the
certificate a copy of the final decision.
(5)
For an appellate court to accept direct review of a final decision of an
environmental board, it shall consider the same criteria outlined in subsection
(3) of this section.
(6)
The procedures for direct review of final decisions of environmental boards
include:
(a)
Within thirty days after filing the petition for review with the superior
court, a party may file an application for direct review with the superior
court and serve the appropriate environmental board and all parties of record.
The application shall request the environmental board to file a certificate of
appealability.
(b)
If an issue on review is the jurisdiction of the environmental board, the board
may file an application for direct review on that issue.
(c)
The environmental board shall have thirty days to grant or deny the request for
a certificate of appealability and its decision shall be filed with the
superior court and served on all parties of record.
(d)
If a certificate of appealability is issued, the parties shall have fifteen
days from the date of service to file a notice of discretionary review in the
superior court, and the notice shall include a copy of the certificate of
appealability and a copy of the final decision.
(e)
If the appellate court accepts review, the certificate of appealability shall
be transmitted to the court of appeals as part of the certified record.
(f)
If a certificate of appealability is denied, review shall be by the superior
court. The superior court's decision may be appealed to the court of appeals.
NEW
SECTION. Sec. 53.
Except as otherwise specifically provided in section 22 of this act, sections 1
through 21, chapter . . ., Laws of 1997 (sections 1 through 21 of
this act) are prospective in effect and shall not affect the validity of
actions taken or decisions made before the effective date of this section.
NEW
SECTION. Sec. 54. 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. 55.
Sections 29 and 30 of this act are necessary for the immediate preservation of
the public peace, health, or safety, or support of the state government and its
existing public institutions, and take effect immediately.
