BILL REQ. #:  S-0144.2 

Read first time 01/10/11.   Referred to Committee on Government Operations, Tribal Relations & Elections.

     AN ACT Relating to the use of hearing examiners or local planning officials in a quasi-judicial land use permit process; amending RCW 36.70B.060, 35.63.130, 35A.63.170, 36.70.970, and 58.17.330; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature intends that the legislative authority of each city and county planning under RCW 36.70A.040 adopt a policy framework of comprehensive plan, capital budget, and development regulations; however, the legislature does not intend that a local legislative authority also administer or adjudicate permit applications pursuant to that framework. The legislature finds that in order to create a more timely, fair, and predictable permit process pursuant to RCW 36.70A.020(7), local legislative bodies should divest themselves of responsibility for administrative, quasi-judicial, and appellate decision making, and assign those responsibilities to hearing examiners or professional staff.

Sec. 2   RCW 36.70B.060 and 1995 c 347 s 407 are each amended to read as follows:
     (1) Not later than March 31, 1996, each local government planning under RCW 36.70A.040 shall establish by ordinance or resolution an integrated and consolidated project permit process that may be included in its development regulations. In addition to the elements required by RCW 36.70B.050, the process shall include the following elements:
     (((1))) (a) A determination of completeness to the applicant as required by RCW 36.70B.070;
     (((2))) (b) A notice of application to the public and agencies with jurisdiction as required by RCW 36.70B.110;
     (((3))) (c) Except as provided in RCW 36.70B.140, an optional consolidated project permit review process as provided in RCW 36.70B.120. The review process shall provide for no more than one consolidated open record hearing and one closed record appeal. If an open record predecision hearing is provided prior to the decision on a project permit, the process shall not allow a subsequent open record appeal hearing;
     (((4))) (d) Provision allowing for any public meeting or required open record hearing to be combined with any public meeting or open record hearing that may be held on the project by another local, state, regional, federal, or other agency, in accordance with provisions of RCW ((36.70B.090 and)) 36.70B.110;
     (((5))) (e) A single report stating all the decisions made as of the date of the report on all project permits included in the consolidated permit process that do not require an open record predecision hearing and any recommendations on project permits that do not require an open record predecision hearing. The report shall state any mitigation required or proposed under the development regulations or the agency's authority under RCW 43.21C.060. The report may be the local permit. If a threshold determination other than a determination of significance has not been issued previously by the local government, the report shall include or append this determination;
     (((6))) (f) Except for the appeal of a determination of significance as provided in RCW 43.21C.075, if a local government elects to provide an appeal of its threshold determinations or project permit decisions, the local government shall provide for no more than one consolidated open record hearing on such appeal. The local government need not provide for any further appeal and may provide an appeal for some but not all project permit decisions. If an appeal is provided after the open record hearing, it shall be a closed record appeal before a single decision-making body or officer;
     (((7))) (g) A notice of decision as required by RCW 36.70B.130 and issued within the time period provided in RCW 36.70B.080 ((and 36.70B.090));
     (((8))) (h) Completion of project review by the local government, including environmental review and public review and any appeals to the local government, within any applicable time periods ((under RCW 36.70B.090)); and
     (((9))) (i) Any other provisions not inconsistent with the requirements of this chapter or chapter 43.21C RCW.
     (2)(a) Except as provided in (b) of this subsection, not later than March 31, 2012, each local government that has a population of ten thousand or greater and is planning under RCW 36.70A.040 shall adopt an ordinance that requires all quasi-judicial permits be decided by either the planning official or director at the local government or a hearing examiner authorized by RCW 35.63.130, 35A.63.170, 36.70.970, or 58.17.330.
     (b) A local government may adopt an ordinance opting out of the requirements of (a) of this subsection no sooner than March 1, 2012, or later than May 30, 2012.
     (c) A local government may require a permit applicant or the appellant to reimburse the local government for the costs of using a hearing examiner, including all associated administrative and staff costs, required notice costs, and environmental review costs. Issuance of a hearing examiner decision may be delayed beyond the ten-day period required by RCW 35.63.130, 35A.63.170, 36.70.970, or 58.17.330 until the local government is reimbursed.

Sec. 3   RCW 35.63.130 and 1995 c 347 s 423 are each amended to read as follows:
     (1) As an alternative to those provisions of this chapter relating to powers or duties of the planning commission to hear and report on any proposal to amend a zoning ordinance, the legislative body of a city or county may adopt a hearing examiner system under which a hearing examiner or hearing examiners may hear and decide applications for amending the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative body may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to:
     (a) Applications for conditional uses, variances, subdivisions, shoreline permits, or any other class of applications for or pertaining to development of land or land use;
     (b) Appeals of administrative decisions or determinations; and
     (c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW.
     The legislative body shall prescribe procedures to be followed by the hearing examiner.
     (2) Each city or county legislative body electing to use a hearing examiner pursuant to this section shall by ordinance specify the legal effect of the decisions made by the examiner. The legal effect of such decisions may vary for the different classes of applications decided by the examiner but shall include one of the following:
     (a) The decision may be given the effect of a recommendation to the legislative body;
     (b) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative body; or
     (c) Except in the case of a rezone, the decision may be given the effect of a final decision of the legislative body.
     (3) Each final decision of a hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. Such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the city's or county's comprehensive plan and the city's or county's development regulations. Each final decision of a hearing examiner, unless a longer period is mutually agreed to in writing by the applicant and the hearing examiner, shall be rendered within ten working days following conclusion of all testimony and hearings. Issuance of a hearing examiner decision may be delayed beyond the ten-day period until a local government is reimbursed pursuant to RCW 36.70B.060.

Sec. 4   RCW 35A.63.170 and 1995 c 347 s 424 are each amended to read as follows:
     (1) As an alternative to those provisions of this chapter relating to powers or duties of the planning commission to hear and report on any proposal to amend a zoning ordinance, the legislative body of a city may adopt a hearing examiner system under which a hearing examiner or hearing examiners may hear and decide applications for amending the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative body may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to:
     (a) Applications for conditional uses, variances, subdivisions, shoreline permits, or any other class of applications for or pertaining to development of land or land use;
     (b) Appeals of administrative decisions or determinations; and
     (c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW.
     The legislative body shall prescribe procedures to be followed by a hearing examiner. If the legislative authority vests in a hearing examiner the authority to hear and decide variances, then the provisions of RCW 35A.63.110 shall not apply to the city.
     (2) Each city legislative body electing to use a hearing examiner pursuant to this section shall by ordinance specify the legal effect of the decisions made by the examiner. The legal effect of such decisions may vary for the different classes of applications decided by the examiner but shall include one of the following:
     (a) The decision may be given the effect of a recommendation to the legislative body;
     (b) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative body; or
     (c) Except in the case of a rezone, the decision may be given the effect of a final decision of the legislative body.
     (3) Each final decision of a hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. Such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the city's comprehensive plan and the city's development regulations. Each final decision of a hearing examiner, unless a longer period is mutually agreed to in writing by the applicant and the hearing examiner, shall be rendered within ten working days following conclusion of all testimony and hearings. Issuance of a hearing examiner decision may be delayed beyond the ten-day period until a local government is reimbursed pursuant to RCW 36.70B.060.

Sec. 5   RCW 36.70.970 and 1995 c 347 s 425 are each amended to read as follows:
     (1) As an alternative to those provisions of this chapter relating to powers or duties of the planning commission to hear and issue recommendations on applications for plat approval and applications for amendments to the zoning ordinance, the county legislative authority may adopt a hearing examiner system under which a hearing examiner or hearing examiners may hear and issue decisions on proposals for plat approval and for amendments to the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative authority may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to:
     (a) Applications for conditional uses, variances, shoreline permits, or any other class of applications for or pertaining to development of land or land use;
     (b) Appeals of administrative decisions or determinations; and
     (c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW.
     The legislative authority shall prescribe procedures to be followed by a hearing examiner.
     Any county which vests in a hearing examiner the authority to hear and decide conditional uses and variances shall not be required to have a zoning adjuster or board of adjustment.
     (2) Each county legislative authority electing to use a hearing examiner pursuant to this section shall by ordinance specify the legal effect of the decisions made by the examiner. Such legal effect may vary for the different classes of applications decided by the examiner but shall include one of the following:
     (a) The decision may be given the effect of a recommendation to the legislative authority;
     (b) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative authority; or
     (c) Except in the case of a rezone, the decision may be given the effect of a final decision of the legislative authority.
     (3) Each final decision of a hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. Such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the county's comprehensive plan and the county's development regulations. Each final decision of a hearing examiner, unless a longer period is mutually agreed to in writing by the applicant and the hearing examiner, shall be rendered within ten working days following conclusion of all testimony and hearings. Issuance of a hearing examiner decision may be delayed beyond the ten-day period until a local government is reimbursed pursuant to RCW 36.70B.060.

Sec. 6   RCW 58.17.330 and 1995 c 347 s 429 are each amended to read as follows:
     (1) As an alternative to those provisions of this chapter requiring a planning commission to hear and issue recommendations for plat approval, the county or city legislative body may adopt a hearing examiner system and shall specify by ordinance the legal effect of the decisions made by the examiner. The legal effect of such decisions shall include one of the following:
     (a) The decision may be given the effect of a recommendation to the legislative body;
     (b) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative body; or
     (c) The decision may be given the effect of a final decision of the legislative body.
     The legislative authority shall prescribe procedures to be followed by a hearing examiner.
     (2) Each final decision of a hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. Each final decision of a hearing examiner, unless a longer period is mutually agreed to by the applicant and the hearing examiner, shall be rendered within ten working days following conclusion of all testimony and hearings. Issuance of a hearing examiner decision may be delayed beyond the ten-day period until a local government is reimbursed pursuant to RCW 36.70B.060.