2176-S AAS 3/3/94

2176-S AAS 3/3/94 - CC

SHB 2176 - S COMM AMD

By Committee on Government Operations

ADOPTED AS AMENDED 3/3/94

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 35.02 RCW to read as follows:

Any person proposing the incorporation of a city or town shall file a notice of the proposed incorporation with the county legislative authority of the county in which all or the major portion of the proposed city or town is located. The notice shall include the matters required to be included in the incorporation petition under RCW 35.02.030 and be accompanied by both a one hundred dollar filing fee and an affidavit from the person stating that he or she is a registered voter residing in the proposed city or town.

The county legislative authority shall promptly notify the boundary review board of the proposed incorporation, which shall hold a public meeting on the proposed incorporation within thirty days of the notice being filed where persons favoring and opposing the proposed incorporation may state their views. If a boundary review board does not exist in the county, the county legislative authority shall provide the public meeting. The public meeting shall be held at a location in or near the proposed city or town. Notice of the public meeting shall be published in a newspaper of general circulation in the area proposed to be incorporated at least once ten days prior to the public meeting.

NEW SECTION. Sec. 2. A new section is added to chapter 35.02 RCW to read as follows:

Within one working day after the public meeting under section 1 of this act, the county auditor shall provide an identification number for the incorporation effort to the person who made the notice of proposing the incorporation. The identification number shall be included on the petition proposing the incorporation.

The petition proposing the incorporation may retain the proposed boundaries and other matters as described in the notice, or may alter the proposed boundaries and other matters.

Sec. 3. RCW 35.02.030 and 1986 c 234 s 4 are each amended to read as follows:

The petition for incorporation shall: (1) Indicate whether the proposed city or town shall be a noncharter code city operating under Title 35A RCW, or a city or town operating under Title 35 RCW; (2) indicate the form or plan of government the city or town is to have; (3) set forth and particularly describe the proposed boundaries of the proposed city or town; (4) state the name of the proposed city or town; (5) state the number of inhabitants therein, as nearly as may be; and (6) pray that ((~~it may~~)) the city or town be incorporated. The petition shall conform to the requirements for form prescribed in RCW 35A.01.040. The petition shall include the identification number provided under section 2 of this act and state the last date by which the petition may be filed, as determined under RCW 35.02.020.

If the proposed city or town is located in more than one county, the petition shall be prepared in such a manner as to indicate the different counties within which the signators reside.

A city or town operating under Title 35 RCW may have a mayor/council, council/manager, or commission form of government. A city operating under Title 35A RCW may have a mayor/council or council/manager plan of government.

If the petition fails to specify the matters described in subsection (1) of this section, the proposal shall be to incorporate as a noncharter code city. If the petition fails to specify the matter described in subsection (2) of this section, the proposal shall be to incorporate with a mayor/council form or plan of government.

Sec. 4. RCW 35.02.020 and 1986 c 234 s 3 are each amended to read as follows:

A petition for incorporation must be signed by ((~~qualified~~)) registered voters resident within the limits of the proposed city or town equal in number to at least ten percent of the ((~~votes cast at the last state general election and presented to~~)) number of voters residing within the proposed city or town and filed with the auditor of the county in which all, or the largest portion of, the proposed city or town is located. The petition must be filed with the auditor by no later than one hundred eighty days after the date the public meeting on the proposed incorporation was held under section 1 of this act, or the next regular business day following the one hundred eightieth day if the one hundred eightieth day is not a regular business day.

NEW SECTION. Sec. 5. A new section is added to chapter 35.02 RCW to read as follows:

For a period of ninety days after a petition proposing the incorporation of a city or town is filed with the county auditor, a petition or resolution proposing the annexation of any portion of the territory included in the incorporation proposal may be filed or adopted and the proposed annexation may continue following the applicable statutory procedures. Territory that ultimately is annexed, as a result of the filing of such an annexation petition or adoption of such an annexation resolution during this ninety-day period, shall be withdrawn from the incorporation proposal.

A proposed annexation of a portion of the territory included within the proposed incorporation, that is initiated by the filing of an annexation petition or adoption of an annexation resolution after this ninety-day period, shall be held in abeyance and may not occur unless: (1) The boundary review board modifies the boundaries of the proposed incorporation to remove the territory from the proposed incorporation; (2) the boundary review board rejects the proposed incorporation and the proposed city or town has a population of less than seven thousand five hundred; or (3) voters defeat the ballot proposition authorizing the proposed incorporation.

NEW SECTION. Sec. 6. Where a petition proposing the incorporation of a city or town has been filed with a county auditor prior to the effective date of this act, the time limitations on competing annexation proposals that are provided under section 5 of this act are modified as follows:

(1) A petition or resolution proposing the annexation of any portion of the territory included in the incorporation proposal, that was filed or adopted within the later of ninety days after the date the incorporation petition was filed or the effective date of this act, may continue following the applicable statutory procedures. A boundary review board may simultaneously consider the proposed incorporation and such an annexation.

(2) A petition or resolution proposing the annexation of any portion of the territory included in the incorporation proposal, that is filed or adopted within the later of ninety days after the date the incorporation petition was filed or the effective date of this act, shall be held in abeyance and may not occur unless: (a) The boundary review board modifies the boundaries of the proposed incorporation to remove the territory from the proposed incorporation; (b) the boundary review board rejects the proposed incorporation and the proposed city or town has a population of less than seven thousand five hundred; or (c) voters defeat the ballot proposition authorizing the proposed incorporation.

NEW SECTION. Sec. 7. A new section is added to chapter 35.13 RCW to read as follows:

After a petition proposing an annexation by a city or town is filed with the city or town or the governing body of the city or town, or after a resolution proposing an annexation by a city or town has been adopted by the city or town governing body, no territory included in the proposed annexation may be annexed by another city or town or incorporated into a city or town unless: (1) The boundary review board modifies the boundaries of the proposed annexation and removes the territory; (2) the boundary review board or review board created under RCW 35.13.171 rejects the proposed annexation; or (3) the city or town governing body rejects the proposed annexation or voters defeat the ballot proposition authorizing the annexation.

NEW SECTION. Sec. 8. A new section is added to chapter 35A.14 RCW to read as follows:

After a petition proposing an annexation by a code city has been filed with the city or the city legislative authority, or after a resolution proposing the annexation by a code city has been adopted by the city legislative authority, no territory included in the proposed annexation may be annexed by another city or town or incorporated into a city or town unless: (1) The boundary review board or county annexation review board created under RCW 35A.14.160 modifies the boundaries of the proposed annexation and removes the territory; (2) the boundary review board or county annexation review board created under RCW 35A.14.160 rejects the proposed annexation; or (3) the city legislative authority rejects the proposed annexation or voters defeat the ballot proposition authorizing the annexation.

NEW SECTION. Sec. 9. A new section is added to chapter 36.93 RCW to read as follows:

A boundary review board may simultaneously consider the proposed incorporation of a city or town, and the proposed annexation of a portion of the territory included in the proposed incorporation, if the resolution or petition initiating the annexation is adopted or filed ninety or fewer days after the petition proposing the incorporation was filed.

NEW SECTION. Sec. 10. A new section is added to chapter 36.93 RCW to read as follows:

The proposed incorporation of any city or town that includes territory located in a county in which a boundary review board exists shall be reviewed by the boundary review board and action taken as described under RCW 36.93.150.

Sec. 11. RCW 35.02.001 and 1989 c 84 s 25 are each amended to read as follows:

((~~Actions taken under chapter 35.02 RCW may be~~)) The incorporation of a city or town is subject to ((~~potential~~)) review by a boundary review board under chapter 36.93 RCW if a boundary review board exists in the county in which all or any portion of the territory proposed to be incorporated is located.

Sec. 12. RCW 35.02.010 and 1986 c 234 s 2 are each amended to read as follows:

Any contiguous area containing not less than ((~~three~~)) one thousand five hundred inhabitants lying outside the limits of an incorporated city or town may become incorporated as a city or town operating under Title 35 or 35A RCW as provided in this chapter: PROVIDED, That no area which lies within five air miles of the boundary of any city having a population of fifteen thousand or more shall be incorporated which contains less than three thousand inhabitants.

Sec. 13. RCW 36.93.100 and 1992 c 162 s 1 are each amended to read as follows:

The board shall review and approve, disapprove, or modify any of the actions set forth in RCW 36.93.090 when any of the following shall occur within forty-five days of the filing of a notice of intention:

(1) Three members of a five-member boundary review board or five members of a boundary review board in a county with a population of one million or more files a request for review: PROVIDED, That the members of the boundary review board shall not be authorized to file a request for review of the following actions:

(a) The incorporation of any special district or change in the boundary of any city, town, or special purpose district;

(b) The extension of permanent water service outside of its existing corporate boundaries by a city, town, or special purpose district if (i) the extension is through the installation of water mains of six inches or less in diameter or (ii) the county legislative authority for the county in which the proposed extension is to be built is required or chooses to plan under RCW 36.70A.040 and has by a majority vote waived the authority of the board to initiate review of all other extensions; or

(c) The extension of permanent sewer service outside of its existing corporate boundaries by a city, town, or special purpose district if (i) the extension is through the installation of sewer mains of eight inches or less in diameter or (ii) the county legislative authority for the county in which the proposed extension is to be built is required or chooses to plan under RCW 36.70A.040 and has by a majority vote waived the authority of the board to initiate review of all other extensions;

(2) Any governmental unit affected, including the governmental unit for which the boundary change or extension of permanent water or sewer service is proposed, or the county within which the area of the proposed action is located, files a request for review of the specific action;

(3) A petition requesting review is filed and is signed by:

(a) Five percent of the registered voters residing within the area which is being considered for the proposed action (as determined by the boundary review board in its discretion subject to immediate review by writ of certiorari to the superior court); or

(b) An owner or owners of property consisting of five percent of the assessed valuation within such area;

(4) The majority of the members of boundary review boards concur with a request for review when a petition requesting the review is filed by five percent of the registered voters who deem themselves affected by the action and reside within one-quarter mile of the proposed action but not within the jurisdiction proposing the action.

If a period of forty-five days shall elapse without the board's jurisdiction having been invoked as set forth in this section, the proposed action shall be deemed approved.

If a review of a proposal is requested, the board shall make a finding as prescribed in RCW 36.93.150 within one hundred twenty days after the filing of such a request for review. If this period of one hundred twenty days shall elapse without the board making a finding as prescribed in RCW 36.93.150, the proposal shall be deemed approved unless the board and the person who submitted the proposal agree to an extension of the one hundred twenty day period.

Sec. 14. RCW 35.02.039 and 1986 c 234 s 7 are each amended to read as follows:

(1) The county legislative authority of the county in which the proposed city or town is located shall hold a public hearing on the proposed incorporation if no boundary review board exists in the county((~~, or if the boundary review board does not take jurisdiction over the proposal~~)). The public hearing shall be held within sixty days of when the county auditor notifies the legislative authority of the sufficiency of the petition if no boundary review board exists in the county, or within ninety days of when notice of the proposal is filed with the boundary review board if the boundary review board fails to take jurisdiction over the proposal. The public hearing may be continued to other days, not extending more than sixty days beyond the initial hearing date. If the boundary review board takes jurisdiction, the county legislative authority shall not hold a public hearing on the proposal.

(2) If the proposed city or town is located in more than one county, a public hearing shall be held in each of the counties by the county legislative authority or boundary review board. Joint public hearings may be held by two or more county legislative authorities, or two or more boundary review boards.

Sec. 15. RCW 36.93.150 and 1990 c 273 s 1 are each amended to read as follows:

The board, upon review of any proposed action, shall take such of the following actions as it deems necessary to best carry out the intent of this chapter:

(1) ((~~Approval of~~)) Approve the proposal as submitted((;)).

(2) Subject to RCW 35.02.170, ((~~modification of~~)) modify the proposal by adjusting boundaries to add or delete territory((~~: PROVIDED, That~~)). However, any proposal for annexation ((~~by the board~~)) of territory to a town shall be subject to RCW 35.21.010 and the board shall not add additional territory, the amount of which is greater than that included in the original proposal((~~: PROVIDED FURTHER, That such~~)). Any modifications shall not interfere with the authority of a city, town, or special purpose district to require or not require preannexation agreements, covenants, or petitions((~~: AND PROVIDED FURTHER, That~~)). A board shall not modify the proposed incorporation of a city with an estimated population of seven thousand five hundred or more by removing territory from the proposal, or adding territory to the proposal, that constitutes ten percent or more of the total area included within the proposal before the board((~~, but~~)). However, a board shall remove territory in the proposed incorporation that is located outside of an urban growth area or is annexed by a city or town, and may remove territory in the proposed incorporation if a petition or resolution proposing the annexation is filed or adopted that has priority over the proposed incorporation, before the area is established that is subject to this ten percent restriction on removing or adding territory. A board shall not modify the proposed incorporation of a city with a population of seven thousand five hundred or more to reduce the territory in such a manner as to reduce the population below seven thousand five hundred((;)).

(3) ((~~Determination of~~)) Determine a division of assets and liabilities between two or more governmental units where relevant((;)).

(4) ((~~Determination~~)) Determine whether, or the extent to which, functions of a special purpose district are to be assumed by an incorporated city or town, metropolitan municipal corporation, or another existing special purpose district((~~; or~~)).

(5) ((~~Disapproval of~~)) Disapprove the proposal except that the board shall not have jurisdiction: (a) To disapprove the dissolution or disincorporation of a special purpose district which is not providing services but shall have jurisdiction over the determination of a division of the assets and liabilities of a dissolved or disincorporated special purpose district; (b) over the division of assets and liabilities of a special purpose district that is dissolved or disincorporated pursuant to chapter 36.96 RCW; nor (c) to disapprove the incorporation of a city with an estimated population of seven thousand five hundred or more, but the board may recommend against the proposed incorporation of a city with such an estimated population.

Unless the board ((~~shall disapprove~~)) disapproves a proposal, it shall be presented under the appropriate statute for approval of a public body and, if required, a vote of the people. A proposal that has been modified shall be presented under the appropriate statute for approval of a public body and if required, a vote of the people. If a proposal, other than that for a city, town, or special purpose district annexation, after modification does not contain enough signatures of persons within the modified area, as are required by law, then the initiating party, parties or governmental unit has thirty days after the modification decision to secure enough signatures to satisfy the legal requirement. If the signatures cannot be secured then the proposal may be submitted to a vote of the people, as required by law.

The addition or deletion of property by the board shall not invalidate a petition which had previously satisfied the sufficiency of signature provisions of RCW 35.13.130 or 35A.14.120. When the board, after due proceedings held, disapproves a proposed action, such proposed action shall be unavailable, the proposing agency shall be without power to initiate the same or substantially the same as determined by the board, and any succeeding acts intended to or tending to effectuate that action shall be void, but such action may be reinitiated after a period of twelve months from date of disapproval and shall again be subject to the same consideration.

The board shall not modify or deny a proposed action unless there is evidence on the record to support a conclusion that the action is inconsistent with one or more of the objectives under RCW 36.93.180. Every such determination to modify or deny a proposed action shall be made in writing pursuant to a motion, and shall be supported by appropriate written findings and conclusions, based on the record.

Sec. 16. RCW 36.93.160 and 1988 c 202 s 40 are each amended to read as follows:

(1) When the jurisdiction of the boundary review board has been invoked, the board shall set the date, time and place for a public hearing on the proposal. The board shall give at least thirty days' advance written notice of the date, time and place of the hearing to the governing body of each governmental unit having jurisdiction within the boundaries of the territory proposed to be annexed, formed, incorporated, disincorporated, dissolved or consolidated, or within the boundaries of a special district whose assets and facilities are proposed to be assumed by a city or town, and to the governing body of each city within three miles of the exterior boundaries of ((~~such~~)) the area and to the proponent of ((~~such~~)) the change. Notice shall also be given by publication in any newspaper of general circulation in the area of the proposed boundary change at least three times, the last publication of which shall be not less than five days prior to the date set for the public hearing. Notice shall also be posted in ten public places in the area affected for five days when the area is ten acres or more. When the area affected is less than ten acres, five notices shall be posted in five public places for five days. Notice as provided in this subsection shall include any territory which the board has determined to consider adding in accordance with RCW 36.93.150(2).

(2) A verbatim record shall be made of all testimony presented at the hearing and upon request and payment of the reasonable costs thereof, a copy of the transcript of ((~~such~~)) the testimony shall be provided to any person or governmental unit.

(3) The chairman upon majority vote of the board or a panel may direct the chief clerk of the boundary review board to issue subpoenas to any public officer to testify, and to compel the production by him of any records, books, documents, public records or public papers.

(4) Within forty days after the conclusion of the final hearing on the proposal, the board shall file its written decision, setting forth the reasons therefor, with the board of county commissioners and the clerk of each governmental unit directly affected. The written decision shall indicate whether the proposed change is approved, rejected or modified and, if modified, the terms of ((~~such~~)) the modification. The written decision need not include specific data on every factor required to be considered by the board, but shall indicate that all standards were given consideration. Dissenting members of the board shall have the right to have their written dissents included as part of the decision.

(5) Unanimous decisions of the hearing panel or a decision of a majority of the members of the board shall constitute the decision of the board and shall not be appealable to the whole board. Any other decision shall be appealable to the entire board within ten days. Appeals shall be on the record, which shall be furnished by the appellant, but the board may, in its sole discretion, permit the introduction of additional evidence and argument. Decisions shall be final and conclusive unless within ((~~ten~~)) thirty days from the date of ((~~said~~)) the action a governmental unit affected by the decision or any person owning real property or residing in the area affected by the decision files in the superior court a notice of appeal.

The filing of ((~~such~~)) the notice of appeal within ((~~such~~)) the time limit shall stay the effective date of the decision of the board until such time as the appeal shall have been adjudicated or withdrawn. On appeal the superior court shall not take any evidence other than that contained in the record of the hearing before the board.

(6) The superior court may affirm the decision of the board or remand the case for further proceedings; or it may reverse the decision if any substantial rights may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) In violation of constitutional provisions, or

(b) In excess of the statutory authority or jurisdiction of the board, or

(d) Affected by other error of law, or

(e) Unsupported by material and substantial evidence in view of the entire record as submitted, or

(f) ((~~Arbitrary or capricious~~)) Clearly erroneous.

An aggrieved party may seek appellate review of any final judgment of the superior court in the manner provided by law as in other civil cases.

Sec. 17. RCW 35.02.070 and 1986 c 234 s 9 are each amended to read as follows:

(1) If a county legislative authority holds a public hearing on a proposed incorporation, it shall establish and define the boundaries of the proposed city or town, being authorized to decrease ((~~but not~~)) or increase the area proposed in the petition((, except for adjusting the boundaries out to the right of way line of any portion of a public highway, street, or road pursuant to RCW 35.02.170. Any decrease shall not exceed twenty percent of the area proposed or that portion of the area located within the county: PROVIDED, That the area shall not be so decreased that the number of inhabitants therein shall be less than required by RCW 35.02.010 as now or hereafter amended)) under the same restrictions that a boundary review board may modify the proposed boundaries. The county legislative authority, or the boundary review board if it takes jurisdiction, shall determine the number of inhabitants within the boundaries it has established.

(2) A county legislative authority shall disapprove the proposed incorporation if, without decreasing the area proposed in the petition, it does not conform with RCW 35.02.010. A county legislative authority may not otherwise disapprove a proposed incorporation.

(3) A county legislative authority or boundary review board has jurisdiction only over that portion of a proposed city or town located within the boundaries of the county.

Sec. 18. RCW 35.02.078 and 1986 c 234 s 10 are each amended to read as follows:

An election shall be held in the area proposed to be incorporated to determine whether the proposed city or town shall be incorporated ((if)) when the boundary review board ((~~approves or modifies and approves~~)) takes action on the proposal other than disapproving the proposal, or if the county legislative authority does not disapprove the proposal as provided in RCW 35.02.070. Voters at this election shall determine if the area is to be incorporated.

The initial election on the question of incorporation shall be held at the next special election date specified in RCW 29.13.020 that occurs sixty or more days after the final public hearing by the county legislative authority or authorities, or ((~~the approval or modification and approval~~)) action by the boundary review board or boards. The county legislative authority or authorities shall call for this election and, if the incorporation is approved, shall call for other elections to elect the elected officials as provided in this section. If the vote in favor of the incorporation receives forty percent or less of the total vote on the question of incorporation, no new election on the question of incorporation for the area or any portion of the area proposed to be incorporated may be held for a period of three years from the date of the election in which the incorporation failed.

If the incorporation is authorized as provided by RCW 35.02.120, separate elections shall be held to nominate and elect persons to fill the various elective offices prescribed by law for the population and type of city or town, and to which it will belong. The primary election to nominate candidates for these elective positions shall be held at the next special election date, as specified in RCW 29.13.020, that occurs sixty or more days after the election on the question of incorporation. The election to fill these elective positions shall be held at the next special election date, as specified in RCW 29.13.020, that occurs thirty or more days after certification of the results of the primary election.

NEW SECTION. Sec. 19. A new section is added to chapter 43.21C RCW to read as follows:

Annexation of territory by a city or town is exempted from compliance with this chapter.

NEW SECTION. Sec. 20. The following acts or parts of acts are each repealed:

(1) RCW 35.13.175 and 1973 1st ex.s. c 164 s 18 & 1965 c 7 s 35.13.175;

(2) RCW 35A.14.230 and 1967 ex.s. c 119 s 35A.14.230;

(3) RCW 36.93.115 and 1982 c 220 s 5; and

(4) RCW 36.93.152 and 1990 c 273 s 2.

NEW SECTION. Sec. 21. 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 shall take effect immediately."

SHB 2176 - S COMM AMD

By Committee on Government Operations

ADOPTED AS AMENDED 3/3/94

On page 1, line 1 of the title, after "annexations;" strike the remainder of the title and insert "amending RCW 35.02.030, 35.02.020, 35.02.001, 35.02.010, 36.93.100, 36.93.150, 36.93.160, 35.02.070, and 35.02.078; adding new sections to chapter 35.02 RCW; adding a new section to chapter 35.13 RCW; adding a new section to chapter 35A.14 RCW; adding new sections to chapter 36.93 RCW; adding a new section to chapter 43.21C RCW; creating a new section; repealing RCW 35.13.175, 35A.14.230, 36.93.115, and 36.93.152; and declaring an emergency."