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 email@example.com, 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
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 ((
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.]
(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.
(1) A caption in the following form:
(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.]
(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.]
(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.]
(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.]
(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.]
[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.]