[atlas:bill]

AN ACT Relating to growth management hearings boards; amending RCW 36.70A.270, 36.70A.280, 36.70A.290, 36.70A.295, 36.70A.300, 36.70A.310, 36.70A.320, and 36.70A.340; adding a new section to chapter 36.70A RCW; recodifying RCW 36.70A.340; and repealing RCW 36.70A.302 and 36.70A.330.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 36.70A.270 and 1997 c 429 s 11 are each amended to read as follows:

Each growth management hearings board shall be governed by the following rules on conduct and procedure:

(1) Any board member may be removed for inefficiency, malfeasance, and misfeasance in office, under specific written charges filed by the governor. The governor shall transmit such written charges to the member accused and the chief justice of the supreme court. The chief justice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Removal of any member of a board by the tribunal shall disqualify such member for reappointment.

(2) Each board member shall receive reimbursement for travel expenses incurred in the discharge of his or her duties in accordance with RCW 43.03.050 and 43.03.060. If it is determined that the review boards shall operate on a full-time basis, each member shall receive an annual salary to be determined by the governor pursuant to RCW 43.03.040. If it is determined that a review board shall operate on a part-time basis, each member shall receive compensation pursuant to RCW 43.03.250, provided such amount shall not exceed the amount that would be set if they were a full-time board member. The principal office of each board shall be located by the governor within the jurisdictional boundaries of each board. The boards shall operate on either a part-time or full-time basis, as determined by the governor.

(3) Each board member shall not: (a) Be a candidate for or hold any other public office or trust; (b) engage in any occupation or business interfering with or inconsistent with his or her duty as a board member; and (c) for a period of one year after the termination of his or her board membership, act in a representative capacity before the board on any matter.

(4) A majority of each board shall constitute a quorum for making orders or decisions, adopting rules necessary for the conduct of its powers and duties, or transacting other official business, and may act even though one position of the board is vacant. One or more members may hold hearings and take testimony to be reported for action by the board when authorized by rule or order of the board. The board shall perform all the powers and duties specified in this chapter or as otherwise provided by law.

(5) ((~~The~~)) Each board may appoint one or more hearing examiners to assist the board in its hearing function, to make ((~~conclusions of law and~~)) findings of fact and, if requested by the board, to make recommendations to the board for decisions in cases before the board. Such hearing examiners must have demonstrated knowledge of land use planning and law. The boards shall specify in their joint rules of practice and procedure, as required by subsection (7) of this section, the procedure and criteria to be employed for designating hearing examiners as a presiding officer. Hearing examiners selected by a board shall meet the requirements of subsection (3) of this section. The findings and conclusions of the hearing examiner shall not become final until they have been formally approved by the board. This authorization to use hearing examiners does not waive the requirement of RCW 36.70A.300 that ((~~final orders be issued~~)) decisions be made within one hundred eighty days of board receipt of a petition. Each board may mediate disputes between counties or cities, over whether their comprehensive plans are coordinated or consistent, by using one or more of its own members, hiring staff to provide mediation, or contracting for the provision of mediation.

(6) Each board shall make findings of fact and prepare a written decision in each case decided by it, and such findings and decision shall be effective upon being signed by two or more members of the board and upon being filed at the board's principal office, and shall be open for public inspection at all reasonable times.

(7) All proceedings before the board, any of its members, or a hearing examiner appointed by the board shall be conducted in accordance with such administrative rules of practice and procedure as the boards jointly prescribe. All three boards shall jointly meet to develop and adopt joint rules of practice and procedure, including rules regarding expeditious and summary disposition of appeals. The boards shall publish such rules and decisions they render and arrange for the reasonable distribution of the rules and decisions. Except as it conflicts with specific provisions of this chapter, the administrative procedure act, chapter 34.05 RCW, and specifically including the provisions of RCW 34.05.455 governing ex parte communications, shall govern the practice and procedure of the boards.

(8) A board member or hearing examiner is subject to disqualification under chapter 34.05 RCW. The joint rules of practice of the boards shall establish procedures by which a party to a hearing conducted before the board may file with the board a motion to disqualify, with supporting affidavit, against a board member or hearing examiner assigned to preside at the hearing.

(9) The members of the boards shall meet jointly on at least an annual basis with the objective of sharing information that promotes the goals and purposes of this chapter.

Sec. 2. RCW 36.70A.280 and 1996 c 325 s 2 are each amended to read as follows:

(1) A growth management hearings board shall hear and determine only those petitions alleging either:

(a) That a ((~~state agency,~~)) county((,)) or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to ((~~plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW~~)) the shoreline master programs or amendments thereto;

(b) That a county or city planning under this chapter has not taken an action required under this chapter by the time the action is required to have been taken; ((or

~~(b)~~)) (c) That ((~~the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted~~)) a county or city has not addressed relevant issues associated with an action required to be taken under this chapter;

(d) That the comprehensive plan of a county or city adopted under this chapter is not coordinated with, or consistent with, the comprehensive plan of another county or city, as required under RCW 36.70A.100; or

(e) That the shoreline master program or amendment thereto, or chapter 43.21C RCW as it relates thereto, are not in compliance with the requirements of chapter 90.58 RCW.

(2) A petition alleging that a county or city has not addressed issues associated with an action required under this chapter, or that the comprehensive plan of a county or city is not coordinated with or consistent with another comprehensive plan as required under RCW 36.70A.100, may be filed only by: (a) The state, or a county or city that plans under this chapter; (b) a person who has participated orally or in writing before the county or city regarding the matter on which a review is being requested; (c) a person who is certified by the governor within sixty days of filing the request with the board; or (d) a person qualified pursuant to RCW 34.05.530. A petition alleging that a county or city has not taken an action required under this chapter, by the time such action is required to have been taken, may be filed by any person. A petition alleging that the shoreline master program or amendments thereto, or chapter 43.21C RCW as it relates thereto, may be filed by a person with standing under chapter 43.21C RCW.

(3) For purposes of this section "person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit thereof, or public or private organization or entity of any character.

(((4) When considering a possible adjustment to a growth management planning population projection prepared by the office of financial management, a board shall consider the implications of any such adjustment to the population forecast for the entire state.

~~The rationale for any adjustment that is adopted by a board must be documented and filed with the office of financial management within ten working days after adoption.~~

If adjusted by a board, a county growth management planning population projection shall only be used for the planning purposes set forth in this chapter and shall be known as a "board adjusted population projection". None of these changes shall affect the official state and county population forecasts prepared by the office of financial management, which shall continue to be used for state budget and planning purposes.))

Sec. 3. RCW 36.70A.290 and 1997 c 429 s 12 are each amended to read as follows:

(1) All requests for review to a growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board. The board shall render written decisions articulating the basis for its holdings. The board shall not issue advisory opinions on issues not presented to the board in the statement of issues, as modified by any prehearing order.

(2) All petitions relating to whether or not an adopted comprehensive plan, development regulation, or permanent amendment thereto, is in compliance with the goals and requirements of ((~~this chapter or~~)) chapter 90.58 or 43.21C RCW must be filed within sixty days after publication by the legislative ((~~bodies~~)) authority of the county or city. All petitions relating to whether or not a county or city has addressed relevant issues associated with an action required under this chapter must be filed within sixty days after publication by the legislative authority of the county or city. All petitions relating to whether or not comprehensive plans are coordinated or consistent, as required under RCW 36.70A.100, must be filed within sixty days after publication by the legislative authority of the county or city adopting or amending its comprehensive plan that is alleged not to be coordinated or consistent with another comprehensive plan. Petitions relating to whether a county or city has not taken an action required under this chapter by the time such action is required to have been taken may be filed at any time.

((~~(a) Except as provided in (c) of this subsection,~~)) The date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published.

((~~(b)~~)) Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.

((~~Except as provided in (c) of this subsection, for purposes of this section~~)) The date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.

(((c) For local governments planning under RCW 36.70A.040, promptly after approval or disapproval of a local government’s shoreline master program or amendment thereto by the department of ecology as provided in RCW 90.58.090, the local government shall publish a notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology. For purposes of this section, the date of publication for the adoption or amendment of a shoreline master program is the date the local government publishes notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology.))

(3) Unless the board dismisses the petition as frivolous or finds that the person filing the petition lacks standing, or the parties have filed an agreement to have the case heard in superior court as provided in RCW 36.70A.295, the board shall, within ten days of receipt of the petition, set a time for hearing the matter.

(4) The board shall base its decision on the record developed by the city((,)) or county((~~, or the state~~)) and supplemented with additional evidence if the board determines that such additional evidence would be necessary or of substantial assistance to the board in reaching its decision.

(5) The board, shall consolidate, when appropriate, all petitions involving the review of the same comprehensive plan or the same development regulation or regulations.

Sec. 4. RCW 36.70A.295 and 1997 c 429 s 13 are each amended to read as follows:

(1) The superior court may directly review a petition for review filed under RCW 36.70A.290 if all parties to the proceeding before the board have agreed to direct review in the superior court. The agreement of the parties shall be in writing and signed by all of the parties to the proceeding or their designated representatives. ((~~The agreement shall include the parties' agreement to proper venue as provided in RCW 36.70A.300(5).~~)) The parties shall file their agreement with the board within ten days after the date the petition is filed, or if multiple petitions have been filed and the board has consolidated the petitions pursuant to RCW 36.70A.300, within ten days after the board serves its order of consolidation.

(2) Within ten days of receiving the timely and complete agreement of the parties, the board shall file a certificate of agreement with the designated superior court and shall serve the parties with copies of the certificate. The superior court shall obtain exclusive jurisdiction over a petition when it receives the certificate of agreement. With the certificate of agreement the board shall also file the petition for review, any orders entered by the board, all other documents in the board's files regarding the action, and the written agreement of the parties.

(3) For purposes of a petition that is subject to direct review, the superior court's subject matter jurisdiction shall be equivalent to that of the board. Consistent with the requirements of the superior court civil rules, the superior court may consolidate a petition subject to direct review under this section with a separate action filed in the superior court.

(4)(a) Except as otherwise provided in (b) and (c) of this subsection, the provisions of RCW 36.70A.280 through ((~~36.70A.330~~)) 36.70A.3201, 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~~)) 36.70A.340.

(7) After the court has assumed jurisdiction over a petition for review under this section, the superior court civil rules shall govern a request for intervention and all other procedural matters not specifically provided for in this section.

Sec. 5. RCW 36.70A.300 and 1997 c 429 s 14 are each amended to read as follows:

(1) ((The board shall issue a final order that shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW.

~~(2)~~))(a) Except as provided in (b) of this subsection, the ((~~final order~~)) board shall ((~~be issued~~)) issue a decision within one hundred eighty days of receipt of the petition for review, or, if multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated.

(b) The board may extend the period of time for issuing a decision to enable the parties to settle the dispute if additional time is necessary to achieve a settlement, and (i) an extension is requested by all parties, or (ii) an extension is requested by the petitioner and respondent and the board determines that a negotiated settlement between the remaining parties could resolve significant issues in dispute. The request must be filed with the board not later than seven days before the date scheduled for the hearing on the merits of the petition. The board may authorize one or more extensions for up to ninety days each, subject to the requirements of this section.

((~~(3)~~)) (2) In ((~~the final order~~)) rendering its decision, the board shall ((~~either~~)):

(a) Find that the ((~~state agency,~~)) county((,)) or city is in compliance with the requirements of ((~~this chapter,~~)) chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW; or

(b) Find that the county or city either has, or has not, taken the action by the time such action is required to have been taken; or

(c) Find that the ((~~state agency,~~)) county((,)) or city ((is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, in which case)) either has, or has not, addressed relevant issues associated with an action required under this chapter, but may not consider the adequacy of the actions taken by the county or city. If the board finds that the county or city has not addressed the relevant issues, the board shall ((~~remand the matter to the affected state agency, county, or city. The board shall~~)) specify a reasonable time not in excess of one hundred eighty days, or such longer period as determined by the board in cases of unusual scope or complexity, within which the ((~~state agency,~~)) county((,)) or city and the person or persons appealing the action shall ((~~comply with the requirements of this chapter. The board may require periodic reports to the board on the progress the jurisdiction is making towards compliance.~~

(4) Unless the board makes a determination of invalidity as provided in RCW 36.70A.302, a finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand.

~~(5) Any party aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board~~)) attempt to resolve the dispute; or

(d) Find that the comprehensive plans either are, or are not, coordinated or consistent, as required under RCW 36.70A.100. If the board finds that the comprehensive plans are not coordinated or consistent, the board shall mediate between the affected counties or cities to resolve the lack of coordination or lack of consistency.

(3) Nothing in RCW 36.70A.250 through 36.70A.345 precludes an aggrieved party from filing a law suit seeking equitable relief against a county or city for failing to comply with the requirements of this chapter or seeking other remedies that may exist challenging the actions of a county or city taken under this chapter.

(4) Any party aggrieved by a final decision of the hearings board may appeal the decision directly to the court of appeals for assignment by the chief presiding judge.

Sec. 6. RCW 36.70A.310 and 1994 c 249 s 32 are each amended to read as follows:

A request for review by the state to a growth management hearings board under RCW 36.70A.280(1) may be made only by the governor, or with the governor's consent the head of an agency, or by the commissioner of public lands as relating to state trust lands((, for the review of whether: (1) A county or city that is required or chooses to plan under RCW 36.70A.040 has failed to adopt a comprehensive plan or development regulations, or countywide planning policies within the time limits established by this chapter; or (2) a county or city that is required or chooses to plan under this chapter has adopted a comprehensive plan, development regulations, or countywide planning policies, that are not in compliance with the requirements of this chapter)).

Sec. 7. RCW 36.70A.320 and 1997 c 429 s 20 are each amended to read as follows:

(1) ((~~Except as provided in subsection (5) of this section,~~)) Comprehensive plans and development regulations, and amendments thereto, adopted under this chapter are presumed valid upon adoption.

(2) Except as otherwise provided in subsection (4) of this section, the burden is on the petitioner to demonstrate that any action taken by a state agency, county, or city under this chapter is not in compliance with the requirements of this chapter.

(3) In any petition under this chapter, the board, after full consideration of the petition, shall ((determine whether there is compliance with the requirements of this chapter. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). The board shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter)) render its decision.

(4) A county or city ((~~subject to a determination of invalidity~~)) aggrieved by a final decision made under RCW 36.70A.300 ((~~or 36.70A.302~~)) has the burden of demonstrating that the ordinance or resolution it has enacted in response to the ((~~determination of invalidity~~)) final decision will no longer substantially interfere with the fulfillment of the goals of this chapter ((~~under the standard in RCW 36.70A.302(1)~~)).

((~~(5) The shoreline element of a comprehensive plan and the applicable development regulations adopted by a county or city shall take effect as provided in chapter 90.58 RCW.~~))

Sec. 8. RCW 36.70A.340 and 1991 sp.s. c 32 s 26 are each amended to read as follows:

((~~Upon receipt from the board of a finding that a state agency, county, or city is in noncompliance under RCW 36.70A.330, or as a result of failure to meet the requirements of~~)) If sanctions are imposed under RCW 36.70A.210, 36.70A.295, or 36.70A.345, the governor may either:

(1) Notify and direct the director of the office of financial management to revise allotments in appropriation levels;

(2) Notify and direct the state treasurer to withhold the portion of revenues to which the county or city is entitled under one or more of the following: The motor vehicle fuel tax, as provided in chapter 82.36 RCW; the transportation improvement account, as provided in RCW 47.26.084; the urban arterial trust account, as provided in RCW 47.26.080; the rural arterial trust account, as provided in RCW 36.79.150; the sales and use tax, as provided in chapter 82.14 RCW; the liquor profit tax, as provided in RCW 66.08.190; and the liquor excise tax, as provided in RCW 82.08.170; or

(3) File a notice of noncompliance with the secretary of state and the county or city, which shall temporarily rescind the county or city's authority to collect the real estate excise tax under RCW 82.46.030 until the governor files a notice rescinding the notice of noncompliance.

NEW SECTION. Sec. 9. The following acts or parts of acts are each repealed:

(1) RCW 36.70A.302 (Determination of invalidity--Vesting of development permits--Interim controls) and 1997 c 429 s 16; and

(2) RCW 36.70A.330 (Noncompliance) and 1997 c 429 s 21, 1995 c 347 s 112, & 1991 sp.s. c 32 s 14.

NEW SECTION. Sec. 10. RCW 36.70A.340 is recodified to appear immediately after RCW 36.70A.345.