HOUSE BILL REPORT

                  HB 2847

             As Reported By House Committee On:

                      Local Government

Title:  An act relating to remedies for exceeding the one hundred twenty day timeline for land use project permit applications.

Brief Description:  Providing sanctions when a local government fails to issue a final decision on a project permit application within the applicable time period.

Sponsors:  Representatives Mulliken, Edwards, Cairnes and Mielke.

Brief History:

  Committee Activity:

Local Government:  1/31/00, 2/2/00 [DPS].

           Brief Summary of Substitute Bill

CAuthorizes project applicants to file a peremptory writ of mandamus action based on a local government's failure to issue a final permit decision within 120 days after a project permit application is deemed complete.

CRequires the superior court to issue the peremptory writ (which may include conditions of permit approval) unless the local government can demonstrate approval would violate a substantive provision of its comprehensive plan or land use regulations.

C Prohibits the local government from requiring a permit applicant to waive the 120 day period or the right to seek the peremptory writ as a condition for taking action on the permit application unless the application is filed concurrently with a comprehensive plan amendment.

C Repeals the June 30, 2000, expiration of the 120 day time permit requirement.

HOUSE COMMITTEE ON LOCAL GOVERNMENT

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  Signed by 7 members:  Representatives Mulliken, Republican Co-Chair; Scott, Democratic Co-Chair; Doumit, Democratic Vice Chair; Mielke, Republican Vice Chair; Edwards; Ericksen and Fortunato.

Staff:  Caroleen Dineen (786-7156).

Background:

Legislation enacted in 1995 required counties and cities planning under Growth Management Act (GMA) jurisdictions to issue a final decision on permit applications within 120 days after the applicant is notified the application is complete.  This 120 day permit requirement does not include:

Cany period during which the applicant is requested to correct plans, perform required studies, or provide additional information;

Cthe period during which an environmental impact statement is prepared;

Cany period for administrative appeals of permits with certain limitations; and

Ca mutually agreed upon time extension. 

The 1995 legislation also specified counties and cities are not liable for damages due to failure to make a final decision within this 120 day permit period.

The 120 day permit requirement does not apply to projects requiring an amendment of the comprehensive plan or development regulations, new fully contained communities, master planned resorts, or essential public facilities.  If an applicant substantially revises the proposal, the 120 day permit period starts again. 

The 120 day permit requirement and local government liability waiver are scheduled to expire on June 30, 2000.

A writ of mandamus is a directive from a court requiring the performance of a particular act.

Summary of Substitute Bill:

The expiration of  the 120 day permit requirement liability is repealed.

A permit applicant may file a peremptory writ of mandamus action in superior court if the local government fails to take final action on the project permit application within 120 days after the application is deemed complete, the statutory basis for extension of the

120 day permit period.

The mandamus action may seek to compel the local government to issue an approval for the project permit application.  Unless a project permit application is filed concurrently with a comprehensive plan amendment, a local government may not compel an applicant to waive the 120 day permit requirement or the right to file a mandamus action as a condition for taking action on a project permit application.

The person filing the action must give notice to all persons entitled to notice under the local project review statutes (RCW 36.70B.110) and any person who participated orally or in writing in the local evidentiary hearing on the project permit application.  Notice must be mailed or hand delivered on the same day the writ of mandamus petition is filed. 

The superior court has jurisdiction for all decisions regarding the project permit application, including settlement, when the mandamus action is filed.  The superior court must issue the peremptory writ of mandamus unless the local government shows that the approval would violate a substantive provision of its comprehensive plan or land use regulations.  The peremptory writ of mandamus may specify conditions of permit approval that would otherwise be allowed by the comprehensive plan or land use regulations.

Substitute Bill Compared to Original Bill:  The original bill repealed the expiration of both the 120 day permit requirement and the local government liability waiver provision.

Appropriation:  None.

Fiscal Note:  Requested on January 21, 2000.

Effective Date of Substitute Bill:  Ninety days after adjournment of session in which bill is passed.

Testimony For:  (Original bill)  The 120 day time limit for permits has worked out well for both the applicants and the local governments and should be continued.  It is not difficult for local governments to comply with the 120 day time limit.  The permitting system needs to be streamlined and has to have deadlines.  This bill creates accountability; the intent is to avoid court and encourage local governments to meet the deadline.

Permit applicants would appreciate greater criteria for a complete application at the beginning of the process rather than additional requirements later on in the process.  Permit delays impact the ability to provide affordable housing.  Carrying costs from delays add to the construction costs. 

The 120 day time limit is not working now, as some local governments are not meeting the deadline. The bill also should include some penalties if the local government does not meet the deadline.

Testimony Against:  (Original bill) This bill has many unintended consequences.  Planners will increase criteria for a complete application, increasing the costs to applicants for a complete application.  This bill also will clog the superior court system and make the court a "super zoning board."  Focusing on substantive and not procedural issues at the superior court level denies due process rights.

Some local governments have had to reduce planning staffs as a result of I-695; with I-695, permit fee increases would require a vote.  There needs to be a balance for permit applicants and local governments.  This is an unfunded state mandate that will require additional local planning staff. 

The Land Use Study Commission was asked to review the 120 day time limit and reported it works for some large projects but creates problems for some smaller projects.  Numerous counties report the current 120 day provisions are working.  Most planning directors now are conscientious about permit time frames. 

Testified:  (In support) Representative Mulliken, prime sponsor; Representative Edwards, sponsor; Representative Cairnes, sponsor; Jodi Slavik, Building Industry Association of Washington; Thomas C. O'Connor, O'Conner and Associates, LLC; Michael Reid, Reid and Associates; Scott Hazelgrove, Association of Washington Business; and Leo Deatherage.

(Opposed) Vincent Moore, Association of County and Regional Planning Directors; Paul Parker, Washington State Association of Counties; Pat Hamilton, Pacific County; Dave Williams, Association of Washington Cities; and Steve Stuart, 1000 Friends of Washington.