SENATE BILL 6768
State of Washington 57th Legislature 2002 Regular Session
By Senators Snyder, Rasmussen and Morton
Read first time 02/01/2002. Referred to Committee on Natural Resources, Parks & Shorelines.
AN ACT Relating to permits for a conditional use or variance issued by local governments under approved master programs pursuant to the shoreline management act; amending RCW 90.58.140; adding a new section to chapter 90.58 RCW; creating a new section; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature finds that environmental permit processes must provide protection for the resource, adequate public involvement, and fairness to the permit applicants. The legislature further finds that duplicative procedures should be eliminated from these permit processes when they delay permit decisions without providing any meaningful additional protection to the resource.
The shoreline management act allows local governments to issue both conditional use permits and variance permits. Local governments may only issue a permit for a variance or a conditional use under the shoreline management act after providing extensive public notice and an opportunity for public involvement. Conditional use and variance permits, unlike substantial development permits, must be approved by the department of ecology. The department can approve, deny, or approve with conditions these permits. The legislature finds that this process, which allows the department of ecology to impose additional conditions on these two types of permits when the department often has not been a participant in the public hearings, is an unnecessary step that adds frustration and delay to the parties involved. The legislature therefore finds that it is in the public interest to eliminate the authority of the department of ecology to impose conditions upon conditional use permits or variance permits issued under the shoreline management act, and that instead the department simply appeal any conditional use or variance permit which it finds defective.
Sec. 2. RCW 90.58.140 and 1995 c 347 s 309 are each amended to read as follows:
(1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program.
(2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter.
A permit shall be granted:
(a) From June 1, 1971, until such time as an applicable master program has become effective, only when the development proposed is consistent with: (i) The policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and rules of the department; and (iii) so far as can be ascertained, the master program being developed for the area;
(b) After adoption or approval, as appropriate, by the department of an applicable master program, only when the development proposed is consistent with the applicable master program and this chapter.
(3) The local government shall establish a program, consistent with rules adopted by the department, for the administration and enforcement of the permit system provided in this section. The administration of the system so established shall be performed exclusively by the local government.
(4) Except as otherwise specifically provided in subsection (11) of this section, the local government shall require notification of the public of all applications for permits governed by any permit system established pursuant to subsection (3) of this section by ensuring that notice of the application is given by at least one of the following methods:
(a) Mailing of the notice to the latest recorded real property owners as shown by the records of the county assessor within at least three hundred feet of the boundary of the property upon which the substantial development is proposed;
(b) Posting of the notice in a conspicuous manner on the property upon which the project is to be constructed; or
(c) Any other manner deemed appropriate by local authorities to accomplish the objectives of reasonable notice to adjacent landowners and the public.
The notices shall include a statement that any person desiring to submit written comments concerning an application, or desiring to receive notification of the final decision concerning an application as expeditiously as possible after the issuance of the decision, may submit the comments or requests for decisions to the local government within thirty days of the last date the notice is to be published pursuant to this subsection. The local government shall forward, in a timely manner following the issuance of a decision, a copy of the decision to each person who submits a request for the decision.
If a hearing is to be held on an application, notices of such a hearing shall include a statement that any person may submit oral or written comments on an application at the hearing.
(5) The system shall include provisions to assure that construction pursuant to a permit will not begin or be authorized until twenty-one days from the date the permit decision was filed as provided in subsection (6) of this section; or until all review proceedings are terminated if the proceedings were initiated within twenty-one days from the date of filing as defined in subsection (6) of this section except as follows:
(a) In the case of any permit issued to the state of Washington, department of transportation, for the construction and modification of SR 90 (I-90) on or adjacent to Lake Washington, the construction may begin after thirty days from the date of filing, and the permits are valid until December 31, 1995;
(b) Construction may be commenced no sooner than thirty days after the date of the appeal of the board's decision is filed if a permit is granted by the local government and (i) the granting of the permit is appealed to the shorelines hearings board within twenty-one days of the date of filing, (ii) the hearings board approves the granting of the permit by the local government or approves a portion of the substantial development for which the local government issued the permit, and (iii) an appeal for judicial review of the hearings board decision is filed pursuant to chapter 34.05 RCW. The appellant may request, within ten days of the filing of the appeal with the court, a hearing before the court to determine whether construction pursuant to the permit approved by the hearings board or to a revised permit issued pursuant to the order of the hearings board should not commence. If, at the conclusion of the hearing, the court finds that construction pursuant to such a permit would involve a significant, irreversible damaging of the environment, the court shall prohibit the permittee from commencing the construction pursuant to the approved or revised permit until all review proceedings are final. Construction pursuant to a permit revised at the direction of the hearings board may begin only on that portion of the substantial development for which the local government had originally issued the permit, and construction pursuant to such a revised permit on other portions of the substantial development may not begin until after all review proceedings are terminated. In such a hearing before the court, the burden of proving whether the construction may involve significant irreversible damage to the environment and demonstrating whether such construction would or would not be appropriate is on the appellant;
(c) If the permit is for a substantial development meeting the requirements of subsection (11) of this section, construction pursuant to that permit may not begin or be authorized until twenty-one days from the date the permit decision was filed as provided in subsection (6) of this section.
If a permittee begins construction pursuant to subsections (a), (b), or (c) of this subsection, the construction is begun at the permittee's own risk. If, as a result of judicial review, the courts order the removal of any portion of the construction or the restoration of any portion of the environment involved or require the alteration of any portion of a substantial development constructed pursuant to a permit, the permittee is barred from recovering damages or costs involved in adhering to such requirements from the local government that granted the permit, the hearings board, or any appellant or intervener.
(6) Any decision on an
application for a permit under the authority of this section, whether it is an
approval or a denial, shall, concurrently with the transmittal of the ruling to
the applicant, be filed with the department and the attorney general. ((
regard to a permit other than a permit governed by subsection (10) of this
section,)) "Date of filing" as used (( herein)) in
this section means the date of actual receipt by the department. (( With
regard to a permit for a variance or a conditional use, "date of
filing" means the date a decision of the department rendered on the permit
pursuant to subsection (10) of this section is transmitted by the department to
the local government.)) The department shall notify in writing the local
government and the applicant of the date of filing.
(7) Applicants for permits under this section have the burden of proving that a proposed substantial development is consistent with the criteria that must be met before a permit is granted. In any review of the granting or denial of an application for a permit as provided in RCW 90.58.180 (1) and (2), the person requesting the review has the burden of proof.
(8) Any permit may, after a hearing with adequate notice to the permittee and the public, be rescinded by the issuing authority upon the finding that a permittee has not complied with conditions of a permit. If the department is of the opinion that noncompliance exists, the department shall provide written notice to the local government and the permittee. If the department is of the opinion that the noncompliance continues to exist thirty days after the date of the notice, and the local government has taken no action to rescind the permit, the department may petition the hearings board for a rescission of the permit upon written notice of the petition to the local government and the permittee if the request by the department is made to the hearings board within fifteen days of the termination of the thirty-day notice to the local government.
(9) The holder of a certification from the governor pursuant to chapter 80.50 RCW shall not be required to obtain a permit under this section.
(10) Any permit for a
variance or a conditional use by local government under approved master
programs must be submitted to the department ((
for its approval or
(11)(a) An application for a substantial development permit for a limited utility extension or for the construction of a bulkhead or other measures to protect a single family residence and its appurtenant structures from shoreline erosion shall be subject to the following procedures:
(i) The public comment period under subsection (4) of this section shall be twenty days. The notice provided under subsection (4) of this section shall state the manner in which the public may obtain a copy of the local government decision on the application no later than two days following its issuance;
(ii) The local government shall issue its decision to grant or deny the permit within twenty-one days of the last day of the comment period specified in (i) of this subsection; and
(iii) If there is an appeal of the decision to grant or deny the permit to the local government legislative authority, the appeal shall be finally determined by the legislative authority within thirty days.
(b) For purposes of this section, a limited utility extension means the extension of a utility service that:
(i) Is categorically exempt under chapter 43.21C RCW for one or more of the following: Natural gas, electricity, telephone, water, or sewer;
(ii) Will serve an existing use in compliance with this chapter; and
(iii) Will not extend more than twenty-five hundred linear feet within the shorelines of the state.
NEW SECTION. Sec. 3. A new section is added to chapter 90.58 RCW to read as follows:
(1) The department is not authorized to deny or impose new conditions for a shoreline conditional use permit or a shoreline variance permit authorized by a local government after May 1, 2002. The local government issuing the conditional use or variance permit is required to file the permit with the department in accordance with RCW 90.58.140(10). The department or any aggrieved party may seek review of a conditional use or variance permit pursuant to RCW 90.58.180.
(2) For any conditional use or variance permit that was either denied by the department or had conditions imposed upon it before May 1, 2002, and for which a final permit has not yet been issued, the local government at its option may: (a) Continue to process the permit with the conditions; or (b) notify the department in writing by June 1, 2002, that it is not accepting the permit conditions and is treating the original permit issuance by the local government as final. The department or any aggrieved party may seek review pursuant to RCW 90.58.180 of any conditional use or variance permit deemed as final under this subsection by the local government.
(3) This section does not change the requirements or standards that must be met for the issuance of a conditional use or variance permit.
NEW SECTION. Sec. 4. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect May 1, 2002.
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