BILL REQ. #:  H-2160.1 

Read first time 03/05/2003.   Referred to Committee on State Government.

     AN ACT Relating to review of permit decisions by state agencies and local governments for economic development projects; amending RCW 43.21B.110, 77.55.170, and 90.58.180; adding a new chapter to Title 43 RCW; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The purpose of this chapter is to reform the process of appeal and review of permit decisions made by state agencies for qualifying economic development projects, by establishing uniform, expedited, and consolidated appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review. The appeal process authorized in this chapter is intended to be the exclusive process for review of decisions made by agencies on permit applications for qualifying economic development projects, superseding other existing administrative board appeal procedures.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Final decision" means the highest and last decision available within the permit agency with respect to a permit application to the agency, including but not limited to decisions resulting from internal appeals available within the agency for the permit decision.
     (2) "Participating permit agency" means any permit agency in which the applicant for a qualifying project has filed an application for an environmental or land use permit that is required for the qualifying project.
     (3) "Permit" means any discretionary environmental or land use permit or similar approval document that is issued by a state agency or local government and is required for a qualifying project; this definition does not include building, grading, and other nondiscretionary construction permits.
     (4) "Permit agency" means any state or local government authorized by law to issue permits.
     (5) "Qualifying project" means an economic development project that is (a) located within a county that qualifies as a distressed area as defined in RCW 43.168.020(3) and a rural natural resources impact area as defined in RCW 43.160.020, and (b) designed to provide at least thirty full-time year-round jobs.

NEW SECTION.  Sec. 3   The appeal process authorized in this chapter shall, notwithstanding any other provisions of this code, be the exclusive process for review of the decisions made by participating permit agencies on permit applications for a qualifying project and shall be in lieu of state hearings board or other state quasi-judicial appeals processes that would otherwise apply to final permit decisions by the agencies. The superior court civil rules shall govern procedural matters for the appeal process under this chapter to the extent that the rules are consistent with this chapter.

NEW SECTION.  Sec. 4   (1) Proceedings for review under this section shall be commenced by filing a petition in the superior court for the county in which the property of the qualifying project is located.
     (2) Such petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served on the following persons who shall be parties to the review of the petition:
     (a) The participating permit agencies, which for purposes of the petition shall be (i) if a state agency, the director thereof, and (ii) if a local government, the jurisdiction's corporate entity and not an individual decision maker;
     (b) Each of the following persons if the person is not the petitioner:
     (i) Each person identified by name and address in the application to the participating permit agencies;
     (ii) Each person identified in project application documents as an owner of the property at issue or, if none, each person identified as a taxpayer for the property at issue in the records of the county assessor.
     (3) The petition is timely if it is filed and served on all parties listed in subsection (2) of this section within twenty-one days of the issuance by the permit agency of the permit for the qualifying project.
     (4) For the purposes of this section, the date on which a permit decision is issued is:
     (a) Three days after a written decision is mailed by the permit agency to the project applicant or, if not mailed, the date on which the permit agency provides notice that a written decision is publicly available; or
     (b) If (a) of this subsection does not apply, the date the decision is entered into the public record.
     (5) Service on all parties must be in accordance with superior court rules and applicable statutes. Service by mail is effective on the date of mailing. Proof of service shall be by affidavit or declaration under penalty of perjury.

NEW SECTION.  Sec. 5   If the project applicant for the permit approval is not the owner of the real property at issue, and if the owner is not accurately identified in the records referred to in this chapter, the applicant shall be responsible for promptly securing the joinder of the owners. In addition, within fourteen days after service each party initially named by the petitioner shall disclose to the other parties the name and address of any person whom such party knows may be needed for just adjudication of the petition, and the petitioner shall promptly name and serve any such person whom the petitioner agrees may be needed for just adjudication. If such a person is named and served before the initial hearing, leave of court for the joinder is not required, and the petitioner shall provide the newly joined party with copies of the pleadings filed before the party's joinder. Failure by the petitioner to name or serve, within the time required by section 4(3) of this act, persons who are needed for just adjudication but who are not identified in the records referred to in this section shall not deprive the court of jurisdiction to hear the petition.

NEW SECTION.  Sec. 6   Standing to bring a petition under this chapter is limited to the following persons:
     (1) The applicant and the owner of the property to which the permit decision is directed;
     (2) Another person aggrieved or adversely affected by the permit decision, or who would be aggrieved or adversely affected by a reversal or modification of the permit decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:
     (a) The permit decision has prejudiced or is likely to prejudice that person;
     (b) That person's asserted interests are among those that at least one participating permit agency was required to consider when it made its permit decision;
     (c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the permit decision; and
     (d) The petitioner has exhausted his or her administrative remedies to the extent required by law.

NEW SECTION.  Sec. 7   A petition must set forth:
     (1) The name and mailing address of the petitioner;
     (2) The name and mailing address of the petitioner's attorney, if any;
     (3) The name and mailing address of the permit agency whose permit is at issue, if any;
     (4) A duplicate copy of the permit decision;
     (5) Identification of each person to be made a party under this chapter;
     (6) Facts demonstrating that the petitioner has standing to seek judicial review under this chapter;
     (7) A separate and concise statement of each error alleged to have been committed;
     (8) A concise statement of facts upon which the petitioner relies to sustain the statement of error; and
     (9) A request for relief, specifying the type and extent of relief requested.

NEW SECTION.  Sec. 8   (1) Within seven days (a) after the petition is served on the parties identified in section 4(2) of this act or (b) if the project applicant elects consolidation of the project permits as provided in section 9 of this act after the appeal period for the final permit issued for the qualifying project, the petitioner shall note, according to the local rules of superior court, an initial hearing on jurisdictional and other preliminary matters and, if applicable, other pretrial matters. This initial hearing shall be set no sooner than thirty-five days and not later than fifty days after the petition is served on the parties identified in section 4(2) of this act or if applicable after the appeal period for the final permit issued on the qualifying project.
     (2) The parties shall note all motions on jurisdictional and procedural issues for resolution at the initial hearing, except that a motion to allow discovery may be brought sooner. Where confirmation of motions is required, each party shall be responsible for confirming its own motions.
     (3) The defenses of lack of standing, untimely filing or service of the petition, lack of good faith or improper purpose in filing, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the initial hearing, unless the court allows discovery on such issues.
     (4) The petitioner shall move the court for an order at the initial hearing that sets the date on which the permit decision record of applicable permit agency or agencies must be submitted, sets a briefing schedule, sets a discovery schedule if discovery is to be allowed, and sets a date for the hearing or trial on the merits. Such hearing or trial shall be set no later than one hundred eighty days after the initial hearing date.
     (5) The parties may waive the initial hearing by scheduling with the court a date for the hearing or trial on the merits and filing a stipulated order that resolves the jurisdictional and procedural issues raised by the petition, including the issues identified in subsections (3) and (4) of this section.
     (6) A party need not file an answer to the petition.

NEW SECTION.  Sec. 9   (1) The project applicant, if a party, may within seven days after receiving service of the petition file with the court an affidavit certifying all environmental or land use permit applications that the project applicant has filed with participating permit agencies for the qualifying project. The court shall request verification from the participating agencies of the permit applications certified in the project applicant's affidavit and of the expected date for final decision on the permit applications. If permits for the qualifying project are verified by a participating permit agency as applied for but not yet issued, the court shall toll from the date of filing of the applicant's affidavit the hearings and other schedules as set forth in section 8 of this act for any and all petitions for review already filed on the qualifying project until twenty-one days after the issuance of the final permit for the qualifying project that has been certified in the applicant's affidavit and verified by a participating agency as applied for.
     (2) If petitions for review of other permits issued by participating permit agencies for the qualifying project have previously been filed with the court, the court shall consolidate all such petitions into the same case for review and hearing. The schedules set forth in section 8 of this act shall be adjusted accordingly.

NEW SECTION.  Sec. 10   The court shall provide expedited review of petitions filed under this chapter. The matter must be set for hearing within sixty days of the date set for submitting the decision record of all participating permit agencies, absent a showing of good cause for a different date or a stipulation of the parties.

NEW SECTION.  Sec. 11   (1) A petitioner or other party may request the court to stay or suspend an action by a participating permit agency or another party to implement the decision under review. The request must set forth a statement of grounds for the stay and the factual basis for the request.
     (2) A court may grant a stay only if the court finds that: (a) The party requesting the stay is likely to prevail on the merits, (b) without the stay the party requesting it will suffer irreparable harm, (c) the grant of a stay will not substantially harm other parties to the proceedings, and (d) the request for the stay is timely in light of the circumstances of the case.
     (3) The court may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.

NEW SECTION.  Sec. 12   (1) Within forty-five days after entry of an order to submit the record, or within such a further time as the court allows or as the parties agree, each participating agency shall submit to the court a certified copy of the record for judicial review of the permit decision, except that the petitioner shall prepare at the petitioner's expense and submit a verbatim transcript of any hearings held on the matter.
     (2) If the parties agree, or upon order of the court, the record shall be shortened or summarized to avoid reproduction and transcription of portions of the record that are duplicative or not relevant to the issues to be reviewed by the court.
     (3) The petitioner shall pay the participating agency the cost of preparing the record before the participating agency submits the record to the court. Failure by the petitioner to timely pay the participating agency relieves the participating agency of responsibility to submit the record and is grounds for dismissal of the petition.
     (4) If the relief sought by the petitioner is granted in whole or in part the court shall equitably assess the cost of preparing the record among the parties. In assessing costs the court shall take into account the extent to which each party prevailed and the reasonableness of the parties' conduct in agreeing or not agreeing to shorten or summarize the record under subsection (2) of this section.

NEW SECTION.  Sec. 13   (1) For all permit decisions being reviewed that (a) were made by quasi-judicial bodies or permit agency officers who made factual determinations in support of the decisions, and (b) provided proceedings in which the parties had an opportunity consistent with due process to make records on the factual issues, judicial review of factual issues and the conclusions drawn from the factual issues shall be confined to the records created by the quasi-judicial bodies or permit agency officers, except as provided in subsections (2) through (4) of this section.
     (2) For decisions described in subsection (1) of this section, the records may be supplemented by additional evidence only if the additional evidence relates to:
     (a) Grounds for disqualification of a member of the body or of the officer that made the permit decision, when such grounds were unknown by the petitioner at the time the record was created;
     (b) Matters that were improperly excluded from the record after being offered by a party to a permit decision proceeding; or
     (c) Matters that were outside the jurisdiction of the body or officer that made the permit decision.
     (3) For permit decisions other than those described in subsection (1) of this section, the judicial review of the permit decision shall be de novo on issues presented as error in the petition.
     (4) The court may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record.
     (5) The parties may not conduct pretrial discovery except with the prior permission of the court, which may be sought by motion at any time after service of the petition. Except as required under subsection (3) of this section, the court shall not grant permission unless the party requesting it makes a prima facie showing of need. The court shall strictly limit discovery to what is necessary for equitable and timely review of the issues that are raised under subsections (2) and (3) of this section. If the court allows the record to be supplemented or requires de novo review, the court shall require the parties to disclose before the hearing or trial on the merits the specific evidence they intend to offer. If any party, or anyone acting on behalf of any party, requests records under chapter 42.17 RCW relating to the matters at issue, a copy of the request shall simultaneously be given to all other parties and the court shall take such request into account in fashioning an equitable discovery order under this subsection.

NEW SECTION.  Sec. 14   (1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted or required for de novo review under section 13 of this act. The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are:
     (a) The body or officer that made the permit decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
     (b) The permit decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by an agency with expertise;
     (c) The permit decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
     (d) The permit decision is a clearly erroneous application of the law to the facts;
     (e) The permit decision is outside the authority or jurisdiction of the body or officer making the decision; or
     (f) The permit decision violates the constitutional rights of the party seeking relief.
     (2) In order to grant relief under this section, it is not necessary for the court to find that the permit agency engaged in arbitrary and capricious conduct. The court may grant relief on a petition for review of one permit decision and not on others consolidated with it for review. A grant of relief by itself may not be deemed to establish liability for monetary damages or compensation.
     (3) The court may affirm or reverse any or all permit decisions under review or remand the decision for modification or further proceedings involving the permit agencies. If the decision is remanded for modification or further proceedings, the court may make such an order as it finds necessary to preserve the interests of the parties and the public, pending further proceedings or action by the permit agencies.

Sec. 15   RCW 43.21B.110 and 2001 c 220 s 2 are each amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330.
     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Proceedings conducted by the department, or the department's designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (e) Appeals of decisions by the department as provided in chapter 43.-- RCW (sections 1 through 14 of this act).
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 16   RCW 77.55.170 and 2000 c 107 s 20 are each amended to read as follows:
     (1) There is hereby created within the environmental hearings office under RCW 43.21B.005 the hydraulic appeals board of the state of Washington.
     (2) The hydraulic appeals board shall consist of three members: The director of the department of ecology or the director's designee, the director of the department of agriculture or the director's designee, and the director or the director's designee of the department whose action is appealed under subsection (6) of this section. A decision must be agreed to by at least two members of the board to be final.
     (3) The board may adopt rules necessary for the conduct of its powers and duties or for transacting other official business.
     (4) The board shall make findings of fact and prepare a written decision in each case decided by it, and that finding and decision shall be effective upon being signed by two or more board members and upon being filed at the hydraulic appeals board's principal office, and shall be open to public inspection at all reasonable times.
     (5) The board has exclusive jurisdiction to hear appeals arising from the approval, denial, conditioning, or modification of a hydraulic approval issued by the department: (a) Under the authority granted in RCW 77.55.110 for the diversion of water for agricultural irrigation or stock watering purposes or when associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020; or (b) under the authority granted in RCW 77.55.230 for off-site mitigation proposals.
     (6)(a) Any person aggrieved by the approval, denial, conditioning, or modification of a hydraulic approval pursuant to RCW 77.55.110 may, except as otherwise provided in chapter 43.-- RCW (sections 1 through 14 of this act), seek review from the board by filing a request for the same within thirty days of notice of the approval, denial, conditioning, or modification of such approval.
     (b) The review proceedings authorized in (a) of this subsection are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings.

Sec. 17   RCW 90.58.180 and 1997 c 199 s 1 are each amended to read as follows:
     (1) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may, except as otherwise provided in chapter 43.-- RCW (sections 1 through 14 of this act), seek review from the shorelines hearings board by filing a petition for review within twenty-one days of the date of filing as defined in RCW 90.58.140(6).
     Within seven days of the filing of any petition for review with the board as provided in this section pertaining to a final decision of a local government, the petitioner shall serve copies of the petition on the department, the office of the attorney general, and the local government. The department and the attorney general may intervene to protect the public interest and insure that the provisions of this chapter are complied with at any time within fifteen days from the date of the receipt by the department or the attorney general of a copy of the petition for review filed pursuant to this section. The shorelines hearings board shall schedule review proceedings on the petition for review without regard as to whether the period for the department or the attorney general to intervene has or has not expired.
     (2) The department or the attorney general may obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition with the shorelines hearings board and the appropriate local government within twenty-one days from the date the final decision was filed as provided in RCW 90.58.140(6).
     (3) The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by chapter 34.05 RCW. The board shall issue its decision on the appeal authorized under subsections (1) and (2) of this section within one hundred eighty days after the date the petition is filed with the board or a petition to intervene is filed by the department or the attorney general, whichever is later. The time period may be extended by the board for a period of thirty days upon a showing of good cause or may be waived by the parties.
     (4) Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval. The board shall make a final decision within sixty days following the hearing held thereon.
     (5) The board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect unless it determines that the rule, regulation, or guideline:
     (a) Is clearly erroneous in light of the policy of this chapter; or
     (b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or
     (c) Is arbitrary and capricious; or
     (d) Was developed without fully considering and evaluating all material submitted to the department during public review and comment; or
     (e) Was not adopted in accordance with required procedures.
     (6) If the board makes a determination under subsection (5)(a) through (e) of this section, it shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government and any other interested party, a new rule, regulation, or guideline consistent with the board's decision.
     (7) A decision of the board on the validity of a rule, regulation, or guideline shall be subject to review in superior court, if authorized pursuant to chapter 34.05 RCW. A petition for review of the decision of the shorelines hearings board on a rule, regulation, or guideline shall be filed within thirty days after the date of final decision by the shorelines hearings board.

NEW SECTION.  Sec. 18   Sections 1 through 14 of this act constitute a new chapter in Title 43 RCW.

NEW SECTION.  Sec. 19   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 immediately.