AN
ACT Relating to the implementation of the recommendations of the joint select
committee on the equitable distribution of secure community transition
facilities; amending RCW 36.70A.200, 71.09.020, 71.09.285, 71.09.305,
71.09.255, and 36.70A.103; adding a new section to chapter 4.24 RCW; adding new
sections to chapter 71.09 RCW; adding a new section to chapter 34.05 RCW;
adding a new section to chapter 43.21C RCW; adding a new section to chapter
90.58 RCW; adding a new section to chapter 77.55 RCW; creating a new section;
providing expiration dates; and declaring an emergency.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
purpose of this act is to:
(1)
Enable the legislature to act upon the recommendations of the joint select
committee on the equitable distribution of secure community transition
facilities established in section 225, chapter 12, Laws of 2001 2nd sp. sess.;
and
(2)
Harmonize the preemption provisions in RCW 71.09.250 with the preemption
provisions applying to future secure community transition facilities to reflect
the joint select committee's recommendation that the preemption granted for
future secure community transition facilities be the same throughout the state.
Sec.
2. RCW
36.70A.200 and 2001 2nd sp.s. c 12 s 205 are each amended to read as follows:
(1)
The comprehensive plan of each county and city that is planning under RCW
36.70A.040 shall include a process for identifying and siting essential public
facilities. Essential public facilities include those facilities that are
typically difficult to site, such as airports, state education facilities and
state or regional transportation facilities as defined in RCW 47.06.140, state
and local correctional facilities, solid waste handling facilities, and
in-patient facilities including substance abuse facilities, mental health
facilities, group homes, and secure community transition facilities as defined
in RCW 71.09.020.
(2)
Each county and city planning under RCW 36.70A.040 shall, not later than ((the
deadline specified in RCW 36.70A.130)) September 1, 2002, establish
a process, or amend its existing process, for identifying and siting essential
public facilities((,)) and adopt or amend its development regulations as
necessary to provide for the siting of secure community transition facilities
consistent with statutory requirements applicable to these facilities.
(3)
Any city or county not planning under RCW 36.70A.040 shall, not later than ((the
deadline specified in RCW 36.70A.130)) September 1, 2002, establish
a process for siting secure community transition facilities and adopt or amend
its development regulations as necessary to provide for the siting of such
facilities consistent with statutory requirements applicable to these
facilities.
(4)
The office of financial management shall maintain a list of those essential
state public facilities that are required or likely to be built within the next
six years. The office of financial management may at any time add facilities
to the list.
(5)
No local comprehensive plan or development regulation may preclude the siting
of essential public facilities.
(6)
No person may bring a cause of action for civil damages based on the good faith
actions of any county or city to provide for the siting of secure community
transition facilities in accordance with this section and with the requirements
of chapter 12, Laws of 2001 2nd sp. sess. For purposes of this subsection,
"person" includes, but is not limited to, any individual, agency as
defined in RCW 42.17.020, corporation, partnership, association, and limited
liability entity.
(7)
Counties or cities siting facilities pursuant to subsection (2) or (3) of this
section shall comply with section 7 of this act.
(8)
The failure of a county or city to act by the deadlines established in
subsections (2) and (3) of this section is not:
(a)
A condition that would disqualify the county or city for grants, loans, or
pledges under RCW 43.155.070 or 70.146.070;
(b)
A consideration for grants or loans provided under RCW 43.17.250(2); or
(c)
A basis for any petition under RCW 36.70A.280 or for any private cause of
action.
NEW
SECTION. Sec. 3. A
new section is added to chapter 4.24 RCW to read as follows:
(1)
Law enforcement shall respond to a call regarding a resident of a secure
community transition facility as a high priority call.
(2)
No law enforcement officer responding reasonably and in good faith to a call
regarding a resident of a secure community transition facility shall be held
liable nor shall the city or county employing the officer be held liable, in
any cause of action for civil damages based on the acts of the resident or the
actions of the officer during the response.
Sec.
4. RCW
71.09.020 and 2001 2nd sp.s. c 12 s 102 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Department" means the department of social and health services.
(2)
"Less restrictive alternative" means court‑ordered treatment in
a setting less restrictive than total confinement which satisfies the
conditions set forth in RCW 71.09.092.
(3)
"Likely to engage in predatory acts of sexual violence if not confined in
a secure facility" means that the person more probably than not will
engage in such acts if released unconditionally from detention on the sexually
violent predator petition. Such likelihood must be evidenced by a recent overt
act if the person is not totally confined at the time the petition is filed
under RCW 71.09.030.
(4)
"Mental abnormality" means a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the person to
the commission of criminal sexual acts in a degree constituting such person a
menace to the health and safety of others.
(5)
"Predatory" means acts directed towards: (a) Strangers; (b)
individuals with whom a relationship has been established or promoted for the
primary purpose of victimization; or (c) persons of casual acquaintance with
whom no substantial personal relationship exists.
(6)
"Recent overt act" means any act or threat that has either caused
harm of a sexually violent nature or creates a reasonable apprehension of such
harm in the mind of an objective person who knows of the history and mental
condition of the person engaging in the act.
(7)
"Risk potential activity" or "risk potential facility"
means an activity or facility that provides a higher incidence of risk to the
public from persons conditionally released from the special commitment center.
Risk potential activities and facilities include: Public and private schools,
school bus stops, licensed day care and licensed preschool facilities, public
parks, publicly dedicated trails, sports fields, playgrounds, recreational and
community centers, churches, synagogues, temples, mosques, ((and))
public libraries, and others identified by the department following the
hearings on a potential site required in RCW 71.09.315. For purposes of this
chapter, "school bus stops" does not include bus stops established
primarily for public transit.
(8)
"Secretary" means the secretary of social and health services or the
secretary's designee.
(9)
"Secure facility" means a residential facility for persons civilly
confined under the provisions of this chapter that includes security measures
sufficient to protect the community. Such facilities include total confinement
facilities, secure community transition facilities, and any residence used as a
court-ordered placement under RCW 71.09.096.
(10)
"Secure community transition facility" means a residential facility
for persons civilly committed and conditionally released to a less restrictive
alternative under this chapter. A secure community transition facility has
supervision and security, and either provides or ensures the provision of sex
offender treatment services. Secure community transition facilities include
but are not limited to the facilities established pursuant to RCW 71.09.250 and
any community‑based facilities established under this chapter and
operated by the secretary or under contract with the secretary.
(11)
"Sexually violent offense" means an act committed on, before, or
after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the
first degree, rape in the second degree by forcible compulsion, rape of a child
in the first or second degree, statutory rape in the first or second degree,
indecent liberties by forcible compulsion, indecent liberties against a child
under age fourteen, incest against a child under age fourteen, or child
molestation in the first or second degree; (b) a felony offense in effect at
any time prior to July 1, 1990, that is comparable to a sexually violent
offense as defined in (a) of this subsection, or any federal or out-of-state
conviction for a felony offense that under the laws of this state would be a
sexually violent offense as defined in this subsection; (c) an act of murder in
the first or second degree, assault in the first or second degree, assault of a
child in the first or second degree, kidnapping in the first or second degree,
burglary in the first degree, residential burglary, or unlawful imprisonment,
which act, either at the time of sentencing for the offense or subsequently
during civil commitment proceedings pursuant to this chapter, has been
determined beyond a reasonable doubt to have been sexually motivated, as that
term is defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28
RCW, that is an attempt, criminal solicitation, or criminal conspiracy to
commit one of the felonies designated in (a), (b), or (c) of this subsection.
(12)
"Sexually violent predator" means any person who has been convicted
of or charged with a crime of sexual violence and who suffers from a mental
abnormality or personality disorder which makes the person likely to engage in
predatory acts of sexual violence if not confined in a secure facility.
(13)
"Total confinement facility" means a facility that provides
supervision and sex offender treatment services in a total confinement
setting. Total confinement facilities include the special commitment center
and any similar facility designated as a secure facility by the secretary.
Sec.
5. RCW
71.09.285 and 2001 2nd sp.s. c 12 s 213 are each amended to read as follows:
(1)
Except with respect to the secure community transition facility established
pursuant to RCW 71.09.250, the secretary shall develop policy guidelines that
balance the average response time of emergency services to the general area of
a proposed secure community transition facility against the proximity of the
proposed site to risk potential activities and facilities in existence at the
time the site is listed for consideration.
(2)
In ((balancing the competing criteria of proximity and response time the policy
guidelines shall endeavor to achieve an average law enforcement response time
not greater than five minutes and in)) no case shall the policy guidelines
permit location of a facility adjacent to, immediately across a street or
parking lot from, or within the line of sight of a risk potential activity or
facility in existence at the time a site is listed for consideration.
"Within the line of sight" means that it is possible to reasonably
visually distinguish and recognize individuals.
(3)
The policy guidelines shall require that great weight be given to sites that
are the farthest removed from any risk potential activity.
(4)
The policy guidelines shall specify how distance from the location is measured
and any variations in the measurement based on the size of the property within
which a proposed facility is to be located.
(5)
The policy guidelines shall establish a method to analyze and compare the
criteria for each site in terms of public safety and security, site
characteristics, and program components. In making a decision regarding a site
following the analysis and comparison, the secretary shall give priority to
public safety and security considerations. The analysis and comparison of the
criteria are to be documented and made available at the public hearings
prescribed in RCW 71.09.315.
(6)
Policy guidelines adopted by the secretary under this section shall be
considered by counties and cities when providing for the siting of secure
community transition facilities as required under RCW 36.70A.200.
Sec.
6. RCW
71.09.305 and 2001 2nd sp.s. c 12 s 217 are each amended to read as follows:
(1)
Unless otherwise ordered by the court:
(a)
Residents of a secure community transition facility shall wear electronic
monitoring devices at all times. To the extent that electronic monitoring
devices that employ global positioning system technology are available and
funds for this purpose are appropriated by the legislature, the department
shall use these devices.
(b)
At least one staff member, or other court‑authorized and department‑approved
person must escort each resident when the resident leaves the secure community
transition facility for appointments, employment, or other approved
activities. Escorting persons must supervise the resident closely and maintain
close proximity to the resident. The escort must immediately notify the
department of any serious violation, as defined in RCW 71.09.325, by the
resident and must immediately notify law enforcement of any violation of law by
the resident. The escort may not be a relative of the resident or a person
with whom the resident has, or has had, a dating relationship as defined in RCW
26.50.010.
(2)
Staff members of the special commitment center and any other total confinement
facility and any secure community transition facility must be trained in
self-defense and appropriate crisis responses including incident
de-escalation. Prior to escorting a person outside of a facility, staff
members must also have training in the offense pattern of the offender they are
escorting. ((The escort may not be a relative of the resident.))
(3)
Any escort must carry a cellular telephone or a similar device at all times
when escorting a resident of a secure community transition facility.
(4)
The department shall require training in offender pattern, self-defense, and
incident response for all court-authorized escorts who are not employed by the
department or the department of corrections.
NEW
SECTION. Sec. 7. A
new section is added to chapter 71.09 RCW to read as follows:
The
minimum requirements set out in RCW 71.09.285 through 71.09.340 are minimum
requirements to be applied by the department. Nothing in this section is
intended to prevent a city or county from adopting development regulations, as
defined in RCW 36.70A.030, unless the proposed regulation imposes requirements
more restrictive than those specifically addressed in RCW 71.09.285 through
71.09.340. Regulations that impose requirements more restrictive than those
specifically addressed in these sections are void. Nothing in these sections
prevents the department from adding requirements to enhance public safety.
Sec.
8. RCW
71.09.255 and 2001 2nd sp.s. c 12 s 204 are each amended to read as follows:
(1)
Upon receiving the notification required by RCW 71.09.250, counties must
promptly notify the cities within the county of the maximum number of secure
community transition facility beds that may be required and the projected
number of beds to be needed in that county.
(2)
The incentive grants and payments provided under this section are
subject to the following provisions:
(a)
Counties and the cities within the county must notify each other of siting
plans to promote the establishment and equitable distribution of secure
community transition facilities;
(b)
Development regulations, ordinances, plans, laws, and criteria established for
siting must be consistent with statutory requirements and rules applicable to
siting and operating secure community transition facilities;
(c)
The minimum size for any facility is three beds; and
(d)
The department must approve any sites selected.
(3)
Any county or city that makes a commitment to initiate the process to site one
or more secure community transition facilities by ((February 1, 2002)) one
hundred twenty days after the effective date of this act, shall receive a
planning grant as proposed and approved by the department of community, trade,
and economic development.
(4)
Any county or city that has issued all necessary permits by May 1, 2003, for
one or more secure community transition facilities that comply with the
requirements of this section shall receive an incentive grant in the amount of
fifty thousand dollars for each bed sited.
(5)
To encourage the rapid permitting of sites, any county or city that has issued
all necessary permits by January 1, 2003, for one or more secure community
transition facilities that comply with the requirements of this section shall
receive a bonus in the amount of twenty percent of the amount provided under
subsection (4) of this section.
(6)
Any county or city that establishes secure community transition facility beds
in excess of the maximum number that could be required to be sited in that
county shall receive a bonus payment of one hundred thousand dollars for each
bed established in excess of the maximum requirement.
(7)
No payment shall be made under subsection (4), (5), or (6) of this section
until all necessary permits have been issued.
(8)
The funds available to counties and cities under this section are contingent
upon funds being appropriated by the legislature.
NEW
SECTION. Sec. 9. A
new section is added to chapter 71.09 RCW to read as follows:
(1)
After October 1, 2002, notwithstanding RCW 36.70A.103 or any other law, this
section preempts and supersedes local plans, development regulations,
permitting requirements, inspection requirements, and all other laws as
necessary to enable the department to site, construct, renovate, occupy, and
operate secure community transition facilities within the borders of the
following:
(a)
Any county that had five or more persons civilly committed from that county, or
detained at the special commitment center under a pending civil commitment
petition from that county where a finding of probable cause has been made, on
April 1, 2001, if the department determines that the county has not met the
requirements of RCW 36.70A.200 with respect to secure community transition
facilities. This subsection does not apply to the county in which the secure
community transition facility authorized under RCW 71.09.250(1) is located; and
(b)
Any city located within a county listed in (a) of this subsection that the
department determines has not met the requirements of RCW 36.70A.200 with
respect to secure community transition facilities.
(2)
The department's determination under subsection (1)(a) or (b) of this section
is final and is not subject to appeal under chapter 34.05 or 36.70A RCW.
(3)
When siting a facility in a county or city that has been preempted under this
section, the department shall consider the policy guidelines established under
RCW 71.09.275 and 71.09.290 and shall hold the hearings required in RCW
71.09.315.
(4)
Nothing in this section prohibits the department from:
(a)
Siting a secure community transition facility in a city or county that has
complied with the requirements of RCW 36.70A.200 with respect to secure
community transition facilities, including a city that is located within a
county that has been preempted. If the department sites a secure community
transition facility in such a city or county, the department shall use the
process established by the city or county for siting such facilities; or
(b)
Consulting with a city or county that has been preempted under this section
regarding the siting of a secure community transition facility.
(5)(a)
A preempted city or county may propose public safety measures specific to any
finalist site to the department. The measures must be consistent with the
location of the facility at that finalist site. The proposal must be made in writing
by the date of:
(i)
The second hearing under RCW 71.09.315(2)(a) when there are three finalist
sites; or
(ii)
The first hearing under RCW 71.09.315(2)(b) when there is only one site under
consideration.
(b)
The department shall respond to the city or county in writing within fifteen
business days of receiving the proposed measures. The response shall address
all proposed measures.
(c)
If the city or county finds that the department's response is inadequate, the
city or county may notify the department in writing within fifteen business
days of the specific items which it finds inadequate. If the city or county
does not notify the department of a finding that the response is inadequate
within fifteen business days, the department's response shall be final.
(d)
If the city or county notifies the department that it finds the response
inadequate and the department does not revise its response to the satisfaction
of the city or county within seven business days, the city or county may
petition the governor to designate a person with law enforcement expertise to
review the response under RCW 34.05.479.
(e)
The governor's designee shall hear a petition filed under this subsection and
shall make a determination within thirty days of hearing the petition. The
governor's designee shall consider the department's response, and the
effectiveness and cost of the proposed measures, in relation to the purposes of
this chapter. The determination by the governor's designee shall be final and
may not be the basis for any cause of action in civil court.
(f)
The city or county shall bear the cost of the petition to the governor's
designee. If the city or county prevails on all issues, the department shall
reimburse the city or county costs incurred, as provided under chapter 34.05
RCW.
(g)
Neither the department's consideration and response to public safety conditions
proposed by a city or county nor the decision of the governor's designee shall
affect the preemption under this section or the department's authority to site,
construct, renovate, occupy, and operate the secure community transition
facility at that finalist site or at any finalist site.
(6)
Until June 30, 2009, the secretary shall site, construct, occupy, and operate a
secure community transition facility sited under this section in an
environmentally responsible manner that is consistent with the substantive
objectives of chapter 43.21C RCW, and shall consult with the department of
ecology as appropriate in carrying out the planning, construction, and
operations of the facility. The secretary shall make a threshold determination
of whether a secure community transition facility sited under this section
would have a probable significant, adverse environmental impact. If the
secretary determines that the secure community transition facility has such an
impact, the secretary shall prepare an environmental impact statement that
meets the requirements of RCW 43.21C.030 and 43.21C.031 and the rules
promulgated by the department of ecology relating to such statements. Nothing
in this subsection shall be the basis for any civil cause of action or
administrative appeal.
(7)
This section does not apply to the secure community transition facility
established pursuant to RCW 71.09.250(1).
NEW
SECTION. Sec. 10. A
new section is added to chapter 34.05 RCW to read as follows:
A
petition brought pursuant to section 9(5) of this act shall be heard under the
provisions of RCW 34.05.479 except that the decision of the governor's designee
shall be final and is not subject to judicial review.
NEW
SECTION. Sec. 11. A
new section is added to chapter 71.09 RCW to read as follows:
An
emergency has been caused by the need to expeditiously site facilities to house
sexually violent predators who have been committed under this chapter. To meet
this emergency, for purposes of RCW 71.09.250 and section 9 of this act,
"all other laws" means the state environmental policy act, the
shoreline management act, the hydraulics code, and all other state laws
regulating the protection and use of the water, land, and air.
This
section expires June 30, 2009.
NEW
SECTION. Sec. 12. A
new section is added to chapter 43.21C RCW to read as follows:
An
emergency has been caused by the need to expeditiously site facilities to house
sexually violent predators who have been committed under chapter 71.09 RCW. To
meet this emergency, secure community transition facilities sited pursuant to
the preemption provisions of section 9 of this act and secure facilities sited
pursuant to the preemption provisions of RCW 71.09.250 are not subject to the
provisions of this chapter.
This
section expires June 30, 2009.
NEW
SECTION. Sec. 13. A
new section is added to chapter 90.58 RCW to read as follows:
An
emergency has been caused by the need to expeditiously site facilities to house
sexually violent predators who have been committed under chapter 71.09 RCW. To
meet this emergency, secure community transition facilities sited pursuant to
the preemption provisions of section 9 of this act and secure facilities sited
pursuant to the preemption provisions of RCW 71.09.250 are not subject to the
provisions of this chapter.
This
section expires June 30, 2009.
NEW
SECTION. Sec. 14. A
new section is added to chapter 77.55 RCW to read as follows:
An
emergency has been caused by the need to expeditiously site facilities to house
sexually violent predators who have been committed under chapter 71.09 RCW. To
meet this emergency, secure community transition facilities sited pursuant to
the preemption provisions of section 9 of this act and secure facilities sited
pursuant to the preemption provisions of RCW 71.09.250 are not subject to the
provisions of this chapter.
This
section expires June 30, 2009.
Sec.
15. RCW
36.70A.103 and 2001 2nd sp.s. c 12 s 203 are each amended to read as follows:
State
agencies shall comply with the local comprehensive plans and development
regulations and amendments thereto adopted pursuant to this chapter except as
otherwise provided in RCW 71.09.250 (1) through (3), section 9 of this act,
and 72.09.333.
The
provisions of chapter 12, Laws of 2001 2nd sp. sess. do not affect the state's
authority to site any other essential public facility under RCW 36.70A.200 in
conformance with local comprehensive plans and development regulations adopted
pursuant to chapter 36.70A RCW.
NEW
SECTION. Sec. 16. A
new section is added to chapter 71.09 RCW to read as follows:
(1)
At the request of the local government of the city or county in which a secure
community transition facility is initially sited after January 1, 2002, the department
shall enter into a long-term contract memorializing the agreements between the
state and the city or county for the operation of the facility. This contract
shall be separate from any contract regarding mitigation due to the facility.
The contract shall include a clause that states:
(a)
The contract does not obligate the state to continue operating any aspect of
the civil commitment program under this chapter;
(b)
The operation of any secure community transition facility is contingent upon sufficient
appropriation by the legislature. If sufficient funds are not appropriated,
the department is not obligated to operate the secure community transition
facility and may close it; and
(c)
This contract does not obligate the city or county to operate a secure
community transition facility.
(2)
Any city or county may, at their option, contract with the department to
operate a secure community transition facility.
NEW
SECTION. Sec. 17. A
new section is added to chapter 71.09 RCW to read as follows:
(1)
Subject to funds appropriated by the legislature, the department may enter into
negotiation for a mitigation agreement with:
(a)
The county and/or city in which a secure community transition facility sited
after January 1, 2002, is located;
(b)
Each community in which the persons from those facilities will reside or
regularly spend time, pursuant to court orders, for regular work or education,
or to receive social services, or through which the person or persons will
regularly be transported to reach other communities; and
(c)
Educational institutions in the communities identified in (a) and (b) of this
subsection.
(2)
Mitigation agreements are limited to the following:
(a)
One-time training for local law enforcement and administrative staff, upon the
establishment of a secure community transition facility.
(i)
Training between local government staff and the department includes training in
coordination, emergency procedures, program and facility information, legal
requirements, and resident profiles.
(ii)
Reimbursement for training under this subsection is limited to:
(A)
The salaries or hourly wages and benefits of those persons who receive training
directly from the department; and
(B)
Costs associated with preparation for, and delivery of, training to the
department or its contracted staff by local government staff or contractors;
(b)
Information coordination:
(i)
Information coordination includes data base infrastructure establishment and
programming for the dissemination of information among law enforcement and the
department related to facility residents.
(ii)
Reimbursement for information coordination is limited to start-up costs;
(c)
One-time capital costs:
(i)
One-time capital costs are off-site costs associated with the need for
increased security in specific locations.
(ii)
Reimbursement for one-time capital costs is limited to actual costs; and
(d)
Incident response:
(i)
Incident response costs are law enforcement and criminal justice costs
associated with violations of conditions of release or crimes by residents of
the secure community transition facility.
(ii)
Reimbursement for incident response does not include private causes of action.
NEW
SECTION. Sec. 18. A
new section is added to chapter 71.09 RCW to read as follows:
(1)
To encourage economies of scale in the siting and operation of secure community
transition facilities, the department may enter into an agreement with two or
more counties to create a regional secure community transition facility. The
agreement must clearly identify the number of beds from each county that will
be contained in the regional secure community transition facility. The
agreement must specify which county must contain the regional secure community
transition facility and the facility must be sited accordingly. No county may
withdraw from an agreement under this section unless it has provided an
alternative acceptable secure community transition facility to house any displaced
residents that meets the criteria established for such facilities in this
chapter and the guidelines established by the department.
(2)
A regional secure community transition facility must meet the criteria
established for secure community transition facilities in this chapter and the
guidelines established by the department.
(3)
The department shall count the beds identified for each participating county in
a regional secure community transition facility against the maximum number of
beds that could be required for each county under RCW 71.09.250(7)(a).
(4)
An agreement for a regional secure community transition facility does not alter
the maximum number of beds for purposes of the incentive grants under RCW
71.09.255 for the county containing the regional facility.
NEW
SECTION. Sec. 19. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW SECTION. Sec. 20. 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 takes effect immediately.
