WSR 06-06-048

PROPOSED RULES

GROWTH MANAGEMENT

HEARINGS BOARDS

[ Filed February 24, 2006, 1:57 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: Rule changes to chapter 242-02 WAC, Practice and procedure before the growth management hearings boards. Changes are proposed to WAC 242-02-074, 242-02-210, 242-02-230, 242-02-530, 242-02-640, 242-02-831, and 242-02-890. New rules are proposed as WSR 242-02-115, 242-02-515, 242-02-892, and 242-02-899.

Hearing Location(s): The Olympia Country and Golf Club, 3636 Country Club Drive N.W., Olympia, WA 98502, on April 27, 2006, at 9:15 a.m.

Date of Intended Adoption: April 27, 2006.

Submit Written Comments to: Margery Hite, 905 24th Way S.W., Suite B-2, Olympia, WA 98504-0953, e-mail mhite@clearwire.net, fax (360) 664-8975, by April 20, 2006.

Assistance for Persons with Disabilities: Contact Patricia Davis, WWGMHB, by April 17, 2006, TTY (711) (360) 664-8966.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule changes are proposed to respond to requests from participants in growth management board proceedings and to issues that have been identified by board members that interfere with the efficacy of board procedures. The proposed rule changes are a continuation of the rules revision process begun in 2004 after publication and public hearings. The following rules are proposed for change: WAC 242-02-074 establishing regular meeting times for all three boards; WAC 242-02-115 a new rule setting forth notice of appearance and substitution obligations of representatives of parties in proceedings before the boards; WAC 242-02-210, requiring complete copies of the appealed enactment to be provided to the board; WAC 242-02-230, requiring four copies of the petition for review; WAC 242-02-515, a new rule expressly allowing the board to consolidate and/or segregate issues from more than one petition for review; WAC 242-02-530, allowing a challenge to a claim of insufficiency of public participation to be brought by motion; WAC 242-02-640, allowing new evidence at a hearing if requested by the board and providing for responses to any such new evidence; WAC WAC 242-02-831, providing that the period of remand on compliance will extend until the board issues its next order on; WAC 242-02-890, requiring the board to set a compliance schedule upon a determination of noncompliance; WAC 242-02-892, a new rule requiring that those intending to participate in a compliance proceeding based on public participation in the adoption of the enactment adopted to achieve compliance provide the board with advance notice of intent to participate; and WAC 242-02-899, a new rule requiring a party seeking judicial review to file a designation of exhibits for certification to the reviewing court.

Statutory Authority for Adoption: RCW 36.70A.270(7).

Statute Being Implemented: Chapter 36.70A RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Rules committee, joint growth management hearings boards, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Margery Hite, Rules Coordinator, WWGMHB, 905 24th Way S.W., Suite B-2, Olympia, WA 98504-0953, (360) 664-8966.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule changes only apply to practice and procedure before quasijudicial boards, the growth management hearings boards.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rule changes only apply to practice and procedure before quasijudicial boards, the growth management hearings boards.

February 24, 2006

Margery Hite

Rules Coordinator

OTS-8661.1


AMENDATORY SECTION(Amending WSR 97-04-008, filed 1/24/97, effective 3/1/97)

WAC 242-02-074   Regular meetings.   (1) Regular meetings of each board will be held at its principal office or designated location at the following times:

(a) Eastern Washington board - on the first Wednesday of each month at 10:00 a.m. or following any scheduled hearing on that date.

(b) Western Washington board - on the second and fourth Wednesdays of each month at 11:00 a.m. or following any scheduled hearing on that date.

(c) Central Puget Sound board - on the ((second Thursday)) first Monday of each month at 10:00 a.m. or following any scheduled hearing on that date.

(2) The joint boards shall meet annually at a time and location to be announced.

[Statutory Authority: RCW 36.70A.270(7). 97-04-008, 242-02-074, filed 1/24/97, effective 3/1/97. Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-074, filed 10/15/92, effective 10/15/92.]


NEW SECTION
WAC 242-02-115   Authorized representatives.   (1) Notice of appearance. Any person acting in a representative capacity on behalf of a party or participant shall file a notice of appearance with the board and shall serve a copy on all parties. This requirement shall apply to attorneys as well as to other duly authorized representatives of parties.

(2) Substitution. In the event of a change in representative or attorney, a notice of substitution must be filed with the board and a copy served on all parties before the change in representative shall become effective.

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AMENDATORY SECTION(Amending WSR 04-21-046, filed 10/15/04, effective 11/15/04)

WAC 242-02-210   Petition for review -- Forms -- Contents.   A petition for review shall substantially contain:

(1) A caption in the following form:


BEFORE THE. . . . GROWTH MANAGEMENT

HEARINGS BOARD

STATE OF WASHINGTON
Petitioner,

Case No.
v.

Respondent.

PETITION FOR REVIEW

(2) Numbered paragraphs stating:

(a) Petitioner's name, mailing address and telephone number and those of the attorney or other authorized representative, if any;

(b) Date of the challenged order, determination, publication, or other action or, in the case of an alleged failure to act, the date by which the action was required to be taken;

(c) A detailed statement of the issues presented for resolution by the board that specifies the provision of the act or other statute allegedly being violated and, if applicable, the provision of the document that is being appealed;

(d) A statement specifying the type and the basis of the petitioner's standing before the board pursuant to RCW 36.70A.280(2);

(e) The estimated length of the hearing;

(f) The relief sought, including the specific nature and extent;

(g) A statement that the petitioner has read the petition for review and believes the contents to be true, followed by the petitioner's signature or signature of the attorney(s) or other authorized representative(s), if any.

(3) One copy of the applicable provisions of the document being appealed, if any, shall be attached to the petition for review. Petitioner shall provide the board with a copy of the entire document being appealed within thirty days of filing a petition for review.

[Statutory Authority: RCW 36.70A.270(7). 04-21-046, 242-02-210, filed 10/15/04, effective 11/15/04; 97-04-008, 242-02-210, filed 1/24/97, effective 3/1/97. Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-210, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-210, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-210, filed 10/15/92, effective 10/15/92.]


AMENDATORY SECTION(Amending WSR 04-21-046, filed 10/15/04, effective 11/15/04)

WAC 242-02-230   Petition for review -- Service and filing.   (1) The original and ((three)) four copies of the petition for review shall be filed with a board personally, or by first class, certified, or registered mail. Filings may also be made with a board by electronic telefacsimile transmission as provided in WAC 242-02-240. A copy of the petition for review shall be personally served upon all other named parties or deposited in the mail and postmarked on or before the date filed with the board. When a county is a party, the county auditor shall be served in noncharter counties and the agent designated by the legislative authority in charter counties. The mayor, city manager, or city clerk shall be served when a city is a party. When the state of Washington is a party, the office of the attorney general shall be served at its main office in Olympia unless service upon the state is otherwise provided by law. Proof of service may be filed with the board pursuant to WAC 242-02-340.

(2) A board may dismiss a case for failure to substantially comply with subsection (1) of this section.

[Statutory Authority: RCW 36.70A.270(7). 04-21-046, 242-02-230, filed 10/15/04, effective 11/15/04. Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-230, filed 10/15/92, effective 10/15/92.]


NEW SECTION
WAC 242-02-515   Consolidation and segregation of issues.   To avoid duplication and/or to provide efficient adjudication of issues, the presiding officer or board may coordinate, consolidate, or segregate issues from more than one petition for review for hearing in a proceeding on the merits or a compliance proceeding.

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AMENDATORY SECTION(Amending WSR 94-23-112, filed 11/22/94, effective 12/23/94)

WAC 242-02-530   Motions -- Requirements.   (1) A motion is an application for an order or ruling. Every motion shall be in writing, unless made during a hearing; shall state with particularity the grounds; and shall set forth the relief or order sought. An original and three copies of the motion shall be filed with a board and a copy served on each opposing party or that party's attorney or other authorized representative.

(2) All motions shall be properly captioned and signed by the moving party or that party's attorney or other authorized representative.

(3) The motion shall specify the amount of time required for argument, whether appearance by telecommunication is requested, and the names and telephone numbers of all parties served with the motion.

(4) Dispositive motions on a limited record, similar to a motion for summary judgment in superior court or a motion on the merits in the appellate courts, are permitted. Time frames for making and responding to such a motion shall be established by the presiding officer.

(5) Motions to disqualify a hearing examiner acting as the presiding officer, or a board member, for bias, prejudice, interest or other cause, with supporting affidavit(s), may be filed with a board.

(6) Any party may bring a motion for the board to decide a challenge to compliance with the public participation requirements of the act raised in the petition for review, provided that the evidence relevant to the challenge is limited. If such a motion is timely brought, the presiding officer or the board shall determine whether to decide the public participation issue(s) on motion or whether to continue those issues to the hearing on the merits.

[Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-530, filed 11/22/94, effective 12/23/94; 94-07-033, 242-02-530, filed 3/9/94, effective 4/9/94; 92-21-034, 242-02-530, filed 10/15/92, effective 10/15/92.]


AMENDATORY SECTION(Amending WSR 98-01-144, filed 12/19/97, effective 1/20/98)

WAC 242-02-640   Hearing -- Procedures at hearing.   (1) Presiding officer. All hearings shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and rule on all procedural matters, objections, and motions.

(2) Order of presentation. The presiding officer shall determine the proper order of presentation.

(3) Opening statements. Unless the presiding officer rules otherwise, parties may present oral opening statements setting out briefly a statement of the basic facts and issues of the case.

(4) Objections. Objection to the admission or exclusion of evidence shall state briefly the legal ground of objection.

(5) Rulings. The presiding officer, on objection or on his/her own motion, shall exclude all irrelevant or unduly repetitious evidence. All rulings upon objections to the admissibility of evidence shall be made in accordance with WAC 242-02-650.

(6) Time. The presiding officer, after consultation with the parties, shall determine the time allotted for presentation.

(7) New evidence submitted at hearing. The board may allow the submission of new evidence at a hearing in response to board questions, upon a showing that the new evidence is necessary or of substantial assistance to the board. If new evidence is thereby introduced, the opposing party shall have the opportunity to respond. The board may require the parties to submit posthearing documents detailing the new evidence, and the opposing party's rebuttal to the new evidence.

[Statutory Authority: RCW 36.70A.270(7). 98-01-144, 242-02-640, filed 12/19/97, effective 1/20/98. Statutory Authority: RCW 36.70A.270(6). 92-21-034, 242-02-640, filed 10/15/92, effective 10/15/92.]


AMENDATORY SECTION(Amending WSR 98-01-144, filed 12/19/97, effective 1/20/98)

WAC 242-02-831   Final decision and order -- Compliance, noncompliance, invalidity.   (1) In its final decision and order, a board shall either:

(a) Find that the state agency, county or city is in compliance with the requirements of chapter 36.70A RCW, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW; or

(b) Find that the state agency, county or city is not in compliance with the requirements of chapter 36.70A RCW, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, in which case the board shall remand the matter to the state agency, county or city and specify a time for compliance. The period of remand shall extend to the date the board issues its next order on compliance.

(2) In its final decision and order, a board may determine that part or all of a comprehensive plan or development regulations are invalid if the board:

(a) Makes a finding of noncompliance and issues an order of remand;

(b) Includes in its final decision and order a determination, supported by findings of fact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment of the goals of the act; and

(c) Specifies the part or parts, if applicable, of the plan or regulation that are determined to be invalid and the reasons for invalidity.

(3) The effect of a determination of invalidity is as set forth in RCW 36.70A.302.

[Statutory Authority: RCW 36.70A.270(7). 98-01-144, 242-02-831, filed 12/19/97, effective 1/20/98.]


AMENDATORY SECTION(Amending WSR 98-01-144, filed 12/19/97, effective 1/20/98)

WAC 242-02-890   Determination of noncompliance -- Compliance schedule.   In those cases where a board finds that a state agency, county, or city is not in compliance with the requirements of the act, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, the board shall remand the matter to the affected state agency, county, or city. The board's final decision and order shall specify a reasonable time not in excess of one hundred eighty days, or such longer time as determined by the board in cases of unusual scope or complexity, within which the state agency, county, or city shall comply. In its order the board ((may)) shall establish a compliance schedule and may require periodic reports on the progress the jurisdiction is making toward compliance.

[Statutory Authority: RCW 36.70A.270(7). 98-01-144, 242-02-890, filed 12/19/97, effective 1/20/98. Statutory Authority: RCW 36.70A.270(6). 94-23-112, 242-02-890, filed 11/22/94, effective 12/23/94; 92-21-034, 242-02-890, filed 10/15/92, effective 10/15/92.]


NEW SECTION
WAC 242-02-89201   Intent to participate in compliance hearings.   Any person eligible to participate in a compliance proceeding based upon his or her participation in the proceedings to enact legislation in response to a board order shall abide by any briefing schedule set in the board's compliance order, as amended or extended, and provide the board with written notice of intent to participate no later than two weeks prior to the compliance hearing date set in that order.

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NEW SECTION
WAC 242-02-899   Record on review.   The party seeking review should, within thirty days after the notice of appeal is filed, serve on all other parties and file with the board a designation of those exhibits that the party wants the board to transmit to the superior court. Each party is encouraged to designate only those exhibits needed to review the issues presented to the superior court.

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Washington State Code Reviser's Office