Read first time 01/14/09.   Referred to Committee on Environment, Water & Energy.

     AN ACT Relating to energy overlay zones; and amending RCW 36.70C.020 and 36.70C.130.

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

Sec. 1   RCW 36.70C.020 and 1995 c 347 s 703 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Energy overlay zone" means a formal plan enacted by the county legislative authority that establishes suitable areas for siting renewable resource projects based on currently available resources and existing infrastructure with sensitivity to adverse environmental impact.
     (2) "Land use decision" means a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on:
     (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;
     (b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and
     (c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.
     (((2))) (3) "Local jurisdiction" means a county, city, or incorporated town.
     (((3))) (4) "Person" means an individual, partnership, corporation, association, public or private organization, or governmental entity or agency.
     (5) "Renewable resources" has the same meaning provided in RCW 19.280.020.

Sec. 2   RCW 36.70C.130 and 1995 c 347 s 714 are each amended to read as follows:
     (1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. 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 land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
     (b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
     (c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
     (d) The land use decision is a clearly erroneous application of the law to the facts;
     (e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
     (f) The land use decision violates the constitutional rights of the party seeking relief.
     (2) In order to grant relief under this chapter, it is not necessary for the court to find that the local jurisdiction engaged in arbitrary and capricious conduct. A grant of relief by itself may not be deemed to establish liability for monetary damages or compensation.
     (3) Land use decisions made by a local jurisdiction concerning renewable resource projects within a county energy overlay zone are presumed to be reasonable if they are in compliance with the requirements and standards established by local ordinance for that zone. However, for land use decisions concerning wind power generation projects, either:
     (a) The local ordinance for that zone is consistent with the department of fish and wildlife's wind power guidelines; or
     (b) The local jurisdiction prepared an environmental impact statement under chapter 43.21C RCW on the energy overlay zone; and
     (i) The local ordinance for that zone requires project mitigation, as addressed in the environmental impact statement and consistent with local, state, and federal law;
     (ii) The local ordinance for that zone requires site specific fish and wildlife and cultural resources analysis; and
     (iii) The local jurisdiction has adopted an ordinance that addresses critical areas under chapter 36.70A RCW.
     (4) If a local jurisdiction has taken action and adopted local ordinances consistent with subsection (3)(b) of this section, then wind power generation projects permitted consistently with the energy overlay zone are deemed to have adequately addressed their environmental impacts as required under chapter 43.21C RCW.