H-4488              _______________________________________________

                                          SUBSTITUTE HOUSE BILL NO. 2740

                        _______________________________________________

State of Washington                               51st Legislature                              1990 Regular Session

By House Committee on Environmental Affairs (originally sponsored by Representatives G. Fisher, Schoon, Belcher, Pruitt, Heavey, Hine and Phillips)

Read first time 2/2/90.

AN ACT Relating to the permitting process for certain utility extensions; amending RCW 90.58.140; and adding a new section to chapter 90.58 RCW.

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

NEW SECTION. Sec. 1.  A new section is added to chapter 90.58 RCW to read as follows:

          The legislature finds that delays in substantial development permit review for the extension of vital utility services to existing and lawful uses within the shorelines of the state have caused hardship upon existing residents without serving any of the purposes and policies of the shoreline management act.  It is the intent of RCW 90.58.140 to provide a more expeditious permit review process for that limited category of utility extension activities only, while fully preserving safeguards of public review and appeal rights regarding permit applications and decisions.

        Sec. 2.  Section 14, chapter 286, Laws of 1971 ex. sess. as last amended by section 1, chapter 22, Laws of 1988 and RCW 90.58.140 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 the  provisions of chapter 90.58 RCW.

          (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) 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:

          (a) A notice of such an application is published at least once a week on the same day of the week for two consecutive weeks in a legal newspaper of general circulation within the area in which the development is proposed; and

          (b) Additional notice of such an application is given by at least one of the following methods:

          (i) 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;

          (ii) Posting of the notice in a conspicuous manner on the property upon which the project is to be constructed; or

          (iii) 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 a copy of the final order concerning an application as expeditiously as possible after the issuance of the order, may submit the comments or requests for orders to the local government within thirty days of the last date the notice is to be published pursuant to subsection (a) of this subsection.  Where the application is for a substantial development meeting the requirements of subsection (5) of this section, this period shall be twenty days, and the notice shall state the manner in which the public may obtain a copy of the local government decision upon the application no later than two days following its issuance.   The local government shall forward, in a timely manner following the issuance of an order, a copy of the order to each person who submits a request for the order.

          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) Local governments shall either grant or deny a permit within fifteen days of the last day of the comment period specified in subsection (4) of this section, for substantial development applications meeting the following three requirements;

(a) The application is for the construction of utility service connections for natural gas, electricity, telephone, water, or sewer;

(b) The construction will serve an existing use in compliance with this chapter; and

(c) The construction will not be more than twenty-five hundred lineal feet within a shoreline of the state.

(6) The system shall include provisions to assure that construction pursuant to a permit will not begin or be authorized until  thirty days from the date the final order was filed as provided in subsection (((6))) (7) of this section; or until all review proceedings are terminated if the proceedings were initiated within thirty days from the date of filing as defined in subsection (((6))) (7) 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) If a permit is granted by the local government and (i) the granting of the permit is appealed to the shorelines hearings board within thirty 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 permittee may request, within ten days of the filing of the appeal with the court, a hearing before the court to determine whether construction may begin pursuant to the permit approved by the hearings board or to a revised permit issued pursuant to the order of the hearings board.  If, at the conclusion of the hearing, the court finds that construction pursuant to such a permit would not involve a significant, irreversible damaging of the environment, the court may allow the permittee to begin the construction pursuant to the approved or revised permit as the court deems appropriate.  The court may require the permittee to post bonds, in the name of the local government that issued the permit, sufficient to remove the substantial development or to restore the environment if the permit is ultimately disapproved by the courts, or to alter the substantial development if the alteration is ultimately ordered by the courts.  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 a permit is granted by the local government and the granting of the permit is appealed directly to the superior court for judicial review pursuant to the proviso in RCW 90.58.180(1), the permittee may request the court to remand the appeal to the shorelines hearings board, in which case the appeal shall be so remanded and construction pursuant to such a permit shall be governed by the provisions of subsection (b) of this subsection or may otherwise begin after review proceedings before the hearings board are terminated if judicial review is not thereafter requested pursuant to chapter 34.05 RCW;

(d) Where the application is for a substantial development meeting the requirements of subsection (5) of this section, such system shall include provisions to assure that construction pursuant to a permit will not begin or be authorized until seven days from the date the order of local government granting the permit was issued.

          If a permittee begins construction pursuant to subsections (a), (b), ((or)) (c), or (d) 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))) (7) Any ruling 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 (((12))) (13) of this section, "date of filing" as used herein 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 (((12))) (13) 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))) (8) 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))) (9) 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))) (10) 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))) (11) A permit shall not be required for any development on shorelines of the state included within a preliminary or final plat approved by the applicable state agency or local government before April 1, 1971, if:

          (a) The final plat was approved after April 13, 1961, or the preliminary plat was approved after April 30, 1969; and

          (b) The development is completed within two years after June 1, 1971.

          (((11))) (12) The applicable state agency or local government is authorized to approve a final plat with respect to shorelines of the state included within a preliminary plat approved after April 30, 1969, and before April 1, 1971:  PROVIDED, That any substantial development within the platted shorelines of the state is authorized by a permit granted pursuant to this section, or does not require a permit as provided in subsection (((10))) (11) of this section, or does not require a permit because of substantial development occurred before June 1, 1971.

          (((12))) (13) 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.