BILL REQ. #:  H-3539.2 

Read first time 01/11/2006.   Referred to Committee on Local Government.

     AN ACT Relating to a collaborative design pilot program; amending RCW 90.58.100 and 90.58.140; adding new sections to chapter 36.70A RCW; adding a new section to chapter 43.21C RCW; creating a new section; and providing expiration dates.

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:
     The office of regulatory assistance shall conduct a collaborative design pilot program. The pilot program shall, at a minimum, establish a mechanism for convening collaborative design teams, evaluate the effectiveness of collaborative design pilot projects, and make findings and recommendations regarding the feasibility of applying collaborative design practices throughout the state.
     (1) To be eligible for consideration as a collaborative design pilot program jurisdiction, a county or city must:
     (a) Plan under RCW 36.70A.040; and
     (b) Provide the office of regulatory assistance with a written request signed by a majority of the county or city's legislative authority requesting participation in the pilot program authorized under this section.
     (2) The office of regulatory assistance, the department of community, trade, and economic development, and the department of ecology shall develop operational guidelines and criteria for the collaborative design pilot program. The operational guidelines and criteria shall include provisions for:
     (a) Establishing collaborative design teams comprised of local government officials with project design and permitting expertise, and public or private sector project applicants;
     (b) Using collaborative design practices in the design and realization of comprehensive or phased projects;
     (c) Varying the application of development regulations and use regulations adopted under this chapter and chapter 90.58 RCW, respectively;
     (d) Exempting qualifying collaborative design projects from chapter 43.21C RCW;
     (e) Expediting county and city processing of permit applications and project approval requests, including using hearing examiner systems, for projects utilizing collaborative design teams;
     (f) Tracking permit fees and collaborative design team costs associated with projects authorized under this section; and
     (g) Awarding appropriated grant funds in accordance with subsection (5) of this section.
     (3) The office of regulatory assistance, the department of community, trade, and economic development, and the department of ecology shall provide technical assistance to counties and cities participating in the collaborative design pilot program.
     (4) Permits and approvals issued pursuant to collaborative design pilot projects shall provide a level of environmental analysis, protection, and mitigation that is at least equal to the level required by the jurisdiction's applicable:
     (a) Comprehensive land use plan and development regulations adopted under this chapter; and
     (b) Shoreline master program and use regulations adopted under chapter 90.58 RCW.
     (5) Subject to the availability of amounts appropriated for this specific purpose, the department of community, trade, and economic development shall provide grants to counties and cities participating in the pilot program authorized under this section. The grants shall be for reimbursing jurisdictions for local government personnel costs attributable to participating in a collaborative design project.
     (6) This act does not limit or otherwise modify the level of environmental analysis, protection, and mitigation required or authorized by this chapter and chapters 43.21C and 90.58 RCW.
     (7) The office of regulatory assistance shall report its findings and recommendations to the appropriate committees of the house of representatives and the senate by December 31, 2009.
     (8) This section expires December 31, 2009.

NEW SECTION.  Sec. 2   A new section is added to chapter 36.70A RCW to read as follows:
     (1) A county or city participating in the pilot program authorized under section 1 of this act may, by ordinance or resolution, allow variances in the application of development regulations adopted under RCW 36.70A.040 for collaborative design projects if the project and associated permits and approvals provide a level of environmental analysis, protection, and mitigation that is at least equal to the level required by the county or city's applicable comprehensive plan and development regulations adopted under this chapter.
     (2) This section expires December 31, 2009.

Sec. 3   RCW 90.58.100 and 1997 c 369 s 7 are each amended to read as follows:
     (1) The master programs provided for in this chapter, when adopted or approved by the department shall constitute use regulations for the various shorelines of the state. In preparing the master programs, and any amendments thereto, the department and local governments shall to the extent feasible:
     (a) Utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts;
     (b) Consult with and obtain the comments of any federal, state, regional, or local agency having any special expertise with respect to any environmental impact;
     (c) Consider all plans, studies, surveys, inventories, and systems of classification made or being made by federal, state, regional, or local agencies, by private individuals, or by organizations dealing with pertinent shorelines of the state;
     (d) Conduct or support such further research, studies, surveys, and interviews as are deemed necessary;
     (e) Utilize all available information regarding hydrology, geography, topography, ecology, economics, and other pertinent data;
     (f) Employ, when feasible, all appropriate, modern scientific data processing and computer techniques to store, index, analyze, and manage the information gathered.
     (2) The master programs shall include, when appropriate, the following:
     (a) An economic development element for the location and design of industries, industrial projects of statewide significance, transportation facilities, port facilities, tourist facilities, commerce and other developments that are particularly dependent on their location on or use of the shorelines of the state;
     (b) A public access element making provision for public access to publicly owned areas;
     (c) A recreational element for the preservation and enlargement of recreational opportunities, including but not limited to parks, tidelands, beaches, and recreational areas;
     (d) A circulation element consisting of the general location and extent of existing and proposed major thoroughfares, transportation routes, terminals, and other public utilities and facilities, all correlated with the shoreline use element;
     (e) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for housing, business, industry, transportation, agriculture, natural resources, recreation, education, public buildings and grounds, and other categories of public and private uses of the land;
     (f) A conservation element for the preservation of natural resources, including but not limited to scenic vistas, aesthetics, and vital estuarine areas for fisheries and wildlife protection;
     (g) An historic, cultural, scientific, and educational element for the protection and restoration of buildings, sites, and areas having historic, cultural, scientific, or educational values;
     (h) An element that gives consideration to the statewide interest in the prevention and minimization of flood damages; and
     (i) Any other element deemed appropriate or necessary to effectuate the policy of this chapter.
     (3) The master programs shall include such map or maps, descriptive text, diagrams and charts, or other descriptive material as are necessary to provide for ease of understanding.
     (4) Master programs will reflect that state-owned shorelines of the state are particularly adapted to providing wilderness beaches, ecological study areas, and other recreational activities for the public and will give appropriate special consideration to same.
     (5)(a) Each master program shall contain provisions to allow for the varying of the application of use regulations of the program, including provisions for permits for conditional uses and variances, to insure that strict implementation of a program will not create unnecessary hardships or thwart the policy enumerated in RCW 90.58.020. Except as provided in (b) of this subsection, any such varying shall be allowed only if extraordinary circumstances are shown ((and)). Variances are allowed only when the public interest suffers no substantial detrimental effect. The concept of this subsection (5)(a) shall be incorporated in the rules adopted by the department relating to the establishment of a permit system as provided in RCW 90.58.140(3).
     (b) Until December 31, 2009, a county or city participating in the pilot program authorized under section 1 of this act may, by ordinance or resolution, allow variances in the application of use regulations of the master program for collaborative design projects if the project and associated permits and approvals provide a level of environmental analysis, protection, and mitigation that is at least equal to the level required by the county or city's applicable master program and use regulations adopted under this chapter.
     (6) Each master program shall contain standards governing the protection of single family residences and appurtenant structures against damage or loss due to shoreline erosion. The standards shall govern the issuance of substantial development permits for shoreline protection, including structural methods such as construction of bulkheads, and nonstructural methods of protection. The standards shall provide for methods which achieve effective and timely protection against loss or damage to single family residences and appurtenant structures due to shoreline erosion. The standards shall provide a preference for permit issuance for measures to protect single family residences occupied prior to January 1, 1992, where the proposed measure is designed to minimize harm to the shoreline natural environment.

Sec. 4   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. With 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:
     (a) The date a decision of the department rendered on the permit pursuant to subsection (10)(a) 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; or
     (b) The date a decision of the local government rendered on the permit under subsection (10)(b) of this section is transmitted by the local government to the department.
     (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)(a) Except as provided in (b) of this subsection, 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 disapproval.
     (b) Until December 31, 2009, permits for variances or conditional uses under an approved master program requested of a county or city participating in the pilot program authorized under section 1 of this act shall be approved or disapproved by the applicable county or city.
     (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. 5   A new section is added to chapter 43.21C RCW to read as follows:
     (1) A county or city participating in the pilot program authorized under section 1 of this act may, by ordinance or resolution, establish categorical exemptions from the requirements of this chapter for collaborative design projects. An exemption may be adopted by a county or city under this section if it meets the following criteria:
     (a) The project and associated permits and approvals issued pursuant to a collaborative design project provide a level of environmental analysis, protection, and mitigation that is at least equal to the level required by the county or city's applicable comprehensive land use plan and development regulations adopted under chapter 36.70A RCW;
     (b) The county or city's applicable comprehensive plan was previously subjected to environmental analysis through an environmental impact statement under the requirements of this chapter prior to adoption;
     (c) The project and associated permits and approvals issued pursuant to a collaborative design project provide a level of environmental analysis, protection, and mitigation that is at least equal to the level required by the county or city's applicable master program and use regulations adopted under chapter 90.58 RCW; and
     (d) The county or city's applicable shoreline master program was previously subjected to environmental analysis through an environmental impact statement under the requirements of this chapter prior to adoption.
     (2) Subsection (1)(c) and (d) of this section shall apply only if the collaborative design project is proposed for an area subject to the jurisdiction of chapter 90.58 RCW.
     (3) An exemption adopted under this section applies even if it differs from the categorical exemptions adopted by rule of the department under RCW 43.21C.110(1)(a).
     (4) This section expires December 31, 2009.

NEW SECTION.  Sec. 6   If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2006, in the omnibus appropriations act, this act is null and void.