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State
Washington
Chapter 43.21L RCW Economic development projects appeals and reviews of permit decisions




Chapter 43.21L RCW
Economic development projects appeals and reviews of permit decisions






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43.21L.005
Purpose.
The purpose of this chapter is to reform the process of appeal and review of final permit decisions made by state agencies and local governments for qualifying economic development projects, by establishing uniform, expedited, and coordinated appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely review. The appeal process authorized in this chapter is intended to be the exclusive process for review of final decisions made by state agencies and local governments on permit applications for qualifying economic development projects, superseding other existing administrative board and judicial appeal procedures.


[2003 c 393 1.]




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43.21L.010
Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Board" means the environmental and land use hearings board established in this chapter.

(2) "Final decision" means the highest and last decision available within the permit agency with respect to a permit application to the agency, including but not limited to decisions resulting from internal appeals available within the agency for the permit decision.

(3) "Participating permit agency" means any permit agency in which the applicant for a qualifying project has filed an application for an environmental or land use permit that is required for the qualifying project.

(4) "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document pertaining to any regulatory or management program related to the protection, conservation, use of, or interference with the land, air, or water in the state. This document must be required to be obtained from a state agency or local government, including but not limited to counties, cities, and air agencies, prior to constructing or operating a qualifying project. Local government permits include, but are not limited to, subdivisions, binding site plans, planned unit developments, shoreline permits or other approvals under RCW 90.58.140, master plan approvals, site plan approvals, permits or approvals required by critical area ordinances, conditional use permits, variances, and site-specific rezones authorized by a comprehensive plan or subarea plan or other equivalent documents however titled or denominated. Local government permits excluded under this definition include the adoption or amendment of a comprehensive plan, subarea plan, legislative actions on development regulations, certifications by local health districts of water and sewer availability, and building, grading, flood hazard, utility connection, and other nondiscretionary construction permits.

(5) "Permit agency" means any state agency or local government, including but not limited to air agencies, authorized by law to issue permits.

(6) "Qualifying project" means an economic development project that is (a) located within a county that in its entirety qualifies as a distressed area as defined in RCW 43.168.020(3) and a rural natural resources impact area as defined in RCW 43.160.020, (b) designed to provide at least thirty full-time year-round jobs, and (c) designated as a qualifying project by the office of permit assistance established under chapter 43.42 RCW if a request for a determination of such designation is made to the office by the project applicant as provided under this chapter.


[2003 c 393 2.]




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43.21L.020
Exclusive review process Exception Procedural rules.
The appeal process authorized in this chapter shall, notwithstanding any other provisions of this code, be the exclusive process for review of the decisions made by participating permit agencies on permit applications for a qualifying project. This chapter shall not apply to applications for certification by the energy facility site evaluation council pursuant to chapter 80.50 RCW. The superior court civil rules and the rules of appellate procedure shall govern procedural matters for the judicial appeal process under this chapter to the extent that the rules are consistent with this chapter.


[2003 c 393 3.]




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43.21L.030
Designation as qualifying project Request for determination Duties of office of permit assistance.
(1) Any applicant for a project that meets the criteria set forth in RCW 43.21L.010(6) (a) and (b) may use the process of appeal and review of this chapter by filing with the office of permit assistance a request for a determination of designation as a qualifying project as required in RCW 43.21L.010(6)(c). Such request shall be filed with the office no later than thirty days after the filing with a permit agency of the first application for a permit relating to the subject project that is filed after May 20, 2003. No requests may be filed with the office of permit assistance after December 31, 2010. The request shall include a list of permits that the project applicant reasonably believes will be required for the subject project.

(2) The office of permit assistance shall: (a) Respond to such request within thirty days after the filing of the request; and (b) if the office determines to designate the project as a qualifying project under RCW 43.21L.010(6)(c), contemporaneously provide a copy of the designation response to all permit agencies responsible for the project permits listed in the request. The office of permit assistance shall provide notice of any project designation to the code reviser for publication in the state register and to any persons that have filed with the office of permit assistance a general request for such notice. Nothing in this section creates an independent cause of action or affects any existing cause of action.

(3) All final decisions of a permit agency notified under subsection (2) of this section shall include the following sentence: Any appeal of this decision shall be in accordance with the provisions of this chapter.


[2003 c 393 4.]




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43.21L.040
Environmental and land use hearings board.
(1) An environmental and land use hearings board is hereby established within the environmental hearings office created under RCW 43.21B.005. The environmental and land use hearings board shall be composed of six members, as provided in RCW 90.58.170. The chairperson of the pollution control hearings board shall be the chairperson of the environmental and land use hearings board. The members of the environmental and land use hearings board shall receive the compensation, travel, and subsistence expenses as provided in RCW 43.03.050 and 43.03.060.

(2) All proceedings before the board or any of its members shall be conducted in accordance with such rules of practice and procedure as the board may adopt. In all such proceedings, the board shall have all powers relating to the administration of oaths, issuance of subpoenas, and taking of depositions as set forth in RCW 34.05.446. The board shall publish any such rules and arrange for the reasonable distribution thereof. Failure to adopt such rules shall not deprive the board of jurisdiction nor relieve the board of the duty to hear petitions for review filed under this chapter.


[2003 c 393 5.]




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43.21L.050
Review proceedings Commencement Rules for filing and service.
(1) Proceedings for review under this chapter shall be commenced by filing a petition with the environmental and land use hearings board. The board may adopt by rule procedures for filing and service that are consistent with this chapter.

(2) Such petition is barred, and the board may not grant review, unless the petition is timely filed with the board and timely served on the following persons who shall be parties to the review of the petition:

(a) The participating permit agencies, which for purposes of the petition shall be (i) if a state agency, the director thereof, and (ii) if a local government, the jurisdiction's corporate entity which shall be served as provided in RCW 4.28.080; and

(b) Each of the following persons if the person is not the petitioner:

(i) Each person identified by name and address as applicant in the application to the participating permit agencies;

(ii) Each person identified in project application documents as an owner of the property at issue or, if none, each person identified as a taxpayer for the property at issue in the records of the county assessor.

(3) The petition is timely if it is filed and served on all parties listed in subsection (2) of this section within twenty-one days of the issuance by the permit agency of the permit for the qualifying project.

(4) For the purposes of this section, the date on which a permit decision is issued is:

(a) Three days after a written decision is mailed by the permit agency to the project applicant or, if not mailed, the date on which the permit agency provides notice that a written decision is publicly available; or

(b) If (a) of this subsection does not apply, the date the decision is entered into the public record.

(5) Service on all parties shall be by personal service or by mail. Service by mail is effective on the date of mailing. Proof of service shall be by affidavit or declaration under penalty of perjury.


[2003 c 393 6.]




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43.21L.060
Standing.
Standing to bring a petition under this chapter is limited to the following persons:

(1) The applicant and the owner of the property to which the permit decision is directed;

(2) Another person aggrieved or adversely affected by the permit decision, or who would be aggrieved or adversely affected by a reversal or modification of the permit decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:

(a) The permit decision has prejudiced or is likely to prejudice that person;

(b) That person's asserted interests are among those that the permit agency was required to consider when it made its permit decision;

(c) A decision of the board in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the permit decision; and

(d) The petitioner has exhausted his or her administrative remedies to the extent required by law;

(3) A participating permit agency under this chapter.


[2003 c 393 7.]




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43.21L.070
Petition requirements.
A petition must set forth:

(1) The name and mailing address of the petitioner;

(2) The name and mailing address of the petitioner's attorney, if any;

(3) The name and mailing address of the permit agency whose permit is at issue, if any;

(4) A duplicate copy of the permit decision;

(5) Identification of each person to be made a party under this chapter;

(6) Facts demonstrating that the petitioner has standing to seek board review under this chapter;

(7) A separate and concise statement of each error alleged to have been committed;

(8) A concise statement of facts upon which the petitioner relies to sustain the statement of error; and

(9) A request for relief, specifying the type and extent of relief requested.


[2003 c 393 8.]




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43.21L.080
Affidavit certifying applications for permits Initial hearing on jurisdictional and preliminary matters.
(1) Within seven days after receipt of service of the petition filed pursuant to RCW 43.21L.050, the project applicant shall file with the board and serve on all parties an affidavit certifying all applications for permits that the project applicant has filed with participating permit agencies for the qualifying project, provided, however, that no permit may be included that has been issued and appealed to an administrative hearings board or to court prior to the date of service of the petition filed with the board under this chapter. The board shall request verification from the participating agencies of the permit applications certified in the project applicant's affidavit and of the expected date for final decision on the permit applications. Filing of the affidavit shall toll the schedule for hearing by the board until twenty-one days after issuance of the final permit decision on the last permit required for the qualifying project that has been certified in the project applicant's affidavit and verified by a participating agency as applied for, unless the petition filed and served by the petitioner relates to the final permit decision.

(2) Within seven days after the expiration of the appeal period for the final permit decision on the last permit required for the qualifying project, the petitioner shall note an initial hearing on jurisdictional and other preliminary matters, and, if applicable, on other pretrial matters. This initial hearing shall be set no sooner than thirty-five days and not later than fifty days after the expiration of the appeal period for the final permit decision on the last permit required for the qualifying project.

(3) If petitions for review of more than one permit issued by participating permit agencies for a qualifying project are filed with the board, the board shall contemporaneously process all such petitions in accordance with the case schedule requirements set forth in chapter 393, Laws of 2003.

(4) The parties shall note all motions on jurisdictional and procedural issues for resolution at the initial hearing, except that a motion to allow discovery may be brought sooner.

(5) The defenses of lack of standing, untimely filing or service of the petition, lack of good faith or improper purpose in filing, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the initial hearing, unless the board allows discovery on such issues.

(6) The petitioner shall move the board for an order at the initial hearing that sets the date on which the permit decision record or records of the applicable permit agency or agencies, if any, must be submitted, sets a briefing schedule, sets a discovery schedule if discovery is to be allowed, and schedules a hearing or hearings on the merits.

(7) The parties may waive the initial hearing by scheduling with the board a date for the hearing or hearings on the merits and filing a stipulated order that resolves the jurisdictional and procedural issues raised by the petition, including the issues identified in subsections (5) and (6) of this section.

(8) A party need not file an answer to a petition for review filed pursuant to RCW 43.21L.050.


[2003 c 393 9.]




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43.21L.090
Expedited review of petitions.
The board shall provide expedited review of petitions filed under this chapter. Any matter reviewed on the decision record as provided in RCW 43.21L.120(1) must be set for hearing within sixty days of the date set for submitting the decision record of all participating permit agencies, absent a showing of good cause for a different date or a stipulation of the parties. Any matter reviewed de novo as provided in RCW 43.21L.120(3) must be set for hearing or trial no later than one hundred twenty days after the initial hearing date. The board shall issue a final decision and order within thirty days after the final hearing required in this section.


[2003 c 393 10.]




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43.21L.100
Stay or suspension of board action.
(1) A petitioner or other party may request the board to stay or suspend an action by a participating permit agency or another party to implement the decision under review. The request must set forth a statement of grounds for the stay and the factual basis for the request.

(2) The board may grant a stay only if the board finds that: (a) The party requesting the stay is likely to prevail on the merits, (b) without the stay the party requesting it will suffer irreparable harm, (c) the grant of a stay will not substantially harm other parties to the proceedings, and (d) the request for the stay is timely in light of the circumstances of the case.

(3) The board may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.


[2003 c 393 11.]




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43.21L.110
Decision record Certified copy to board Costs.
(1) Within forty-five days after entry of an order to submit the decision record, where applicable, or within such a further time as the board allows or as the parties agree, each participating agency shall submit to the board a certified copy of the decision record for board review of the permit decision, except that the petitioner shall prepare at the petitioner's expense and submit a verbatim transcript of any hearings held on the matter.

(2) If the parties agree, or upon order of the board, the record shall be shortened or summarized to avoid reproduction and transcription of portions of the record that are duplicative or not relevant to the issues to be reviewed by the board.

(3) The petitioner shall pay the participating agency the cost of preparing the record before the participating agency submits the decision record to the board. Failure by the petitioner to timely pay the participating agency relieves the participating agency of responsibility to submit the record and is grounds for dismissal of the petition.

(4) If the relief sought by the petitioner is granted in whole or in part the board shall equitably assess the cost of preparing the record among the parties. In assessing costs the board shall take into account the extent to which each party prevailed and the reasonableness of the parties' conduct in agreeing or not agreeing to shorten or summarize the record under subsection (2) of this section.


[2003 c 393 12.]




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43.21L.120
Board review of permit decisions Correction of errors and omissions Pretrial discovery Requests for records under chapter 42.17 RCW. (Effective until July 1, 2006.)
(1) For all permit decisions being reviewed that were made by quasi-judicial bodies or permit agency officers who made factual determinations in support of the decisions, after the conduct of proceedings in which the parties had an opportunity consistent with due process to make records on the factual issues, board review of factual issues and the conclusions drawn from the factual issues shall be confined to the records created by the quasi-judicial bodies or permit agency officers, except as provided in subsections (2) through (4) of this section.

(2) For decisions described in subsection (1) of this section, the records may be supplemented by additional evidence only if the additional evidence relates to:

(a) Grounds for disqualification of a member of the body or of the officer that made the permit decision, when such grounds were unknown by the petitioner at the time the record was created;

(b) Matters that were improperly excluded from the record after being offered by a party to a permit decision proceeding; or

(c) Matters that were outside the jurisdiction of the body or officer that made the permit decision.

(3) For permit decisions other than those described in subsection (1) of this section, the board review of the permit decision shall be de novo on issues presented as error in the petition.

(4) The board may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record.

(5)(a) The parties may not conduct pretrial discovery except with the prior permission of the board, which may be sought by motion, subject to any applicable rules adopted by the board, at any time after service of the petition. The board shall not grant permission unless the party requesting it makes a prima facie showing of need. The board shall strictly limit discovery to what is necessary for equitable and timely review of the issues.

(b) If the board allows the record to be supplemented, or in any de novo proceeding under subsection (3) of this section, the board shall require the parties to disclose before the hearing or trial on the merits the identity of witnesses and the specific evidence they intend to offer.

(c) If any party, or anyone acting on behalf of any party, requests records under chapter 42.17 RCW relating to the matters at issue, a copy of the request shall simultaneously be given to all other parties, and the board shall take such request into account in fashioning an equitable discovery order under this section.


[2003 c 393 13.]


RCW 43.21L

Board review of permit decisions Correction of errors and omissions Pretrial discovery Requests for records under chapter 42.17 RCW. (Effective July 1, 2006.)
(1) For all permit decisions being reviewed that were made by quasi-judicial bodies or permit agency officers who made factual determinations in support of the decisions, after the conduct of proceedings in which the parties had an opportunity consistent with due process to make records on the factual issues, board review of factual issues and the conclusions drawn from the factual issues shall be confined to the records created by the quasi-judicial bodies or permit agency officers, except as provided in subsections (2) through (4) of this section.

(2) For decisions described in subsection (1) of this section, the records may be supplemented by additional evidence only if the additional evidence relates to:

(a) Grounds for disqualification of a member of the body or of the officer that made the permit decision, when such grounds were unknown by the petitioner at the time the record was created;

(b) Matters that were improperly excluded from the record after being offered by a party to a permit decision proceeding; or

(c) Matters that were outside the jurisdiction of the body or officer that made the permit decision.

(3) For permit decisions other than those described in subsection (1) of this section, the board review of the permit decision shall be de novo on issues presented as error in the petition.

(4) The board may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record.

(5)(a) The parties may not conduct pretrial discovery except with the prior permission of the board, which may be sought by motion, subject to any applicable rules adopted by the board, at any time after service of the petition. The board shall not grant permission unless the party requesting it makes a prima facie showing of need. The board shall strictly limit discovery to what is necessary for equitable and timely review of the issues.

(b) If the board allows the record to be supplemented, or in any de novo proceeding under subsection (3) of this section, the board shall require the parties to disclose before the hearing or trial on the merits the identity of witnesses and the specific evidence they intend to offer.

(c) If any party, or anyone acting on behalf of any party, requests records under chapter 42.56 RCW relating to the matters at issue, a copy of the request shall simultaneously be given to all other parties, and the board shall take such request into account in fashioning an equitable discovery order under this section.


[2005 c 274 295; 2003 c 393 13.]

Notes: Part headings not law -- Effective date -- 2005 c 274: See RCW 42.56.901 and 42.56.902.







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43.21L.130
Standards for granting relief Action by board.
(1) The board shall review the decision record and all such evidence as is permitted to supplement the record for review restricted to the decision record or is required for de novo review under RCW 43.21L.120. The board may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are:

(a) The body or officer that made the permit decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The permit decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by an agency with expertise;

(c) The permit decision is not supported by evidence that is substantial when viewed in light of the whole record before the board;

(d) The permit decision is a clearly erroneous application of the law to the facts;

(e) The permit decision is outside the authority or jurisdiction of the body or officer making the decision; or

(f) The permit decision violates the constitutional rights of the party seeking relief.

(2) The board may affirm or reverse each and every permit decision under review or remand the decision for modification or further proceedings involving the permit agencies.


[2003 c 393 14.]




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43.21L.140
Judicial review.
(1) In order to obtain judicial review of a final decision of the environmental and land use hearings board, a party to the board case as consolidated shall timely file a petition for judicial review in the superior court for Thurston county and timely serve the board and all parties to the proceedings before the board by personal service or by mail. Such petition is timely filed and served only if it is filed and served on all parties within thirty days after the filing of the final decision and order of the board. Service by mail shall be deemed effective on the date of deposit with the United States postal service. Any party may apply for direct review by the court of appeals. An application for direct review must be filed with the superior court within ten days after the filing of the petition for judicial review. In considering an application for direct review under this chapter, it shall be presumed that: (a) The qualifying project presents fundamental and urgent issues affecting the public interest which require a prompt determination, and (b) delay in obtaining a final and prompt determination of such issues would be detrimental to a party and the public interest.

(2) The presumption set forth in subsection (1) of this section shall require that the superior court certify the direct review not less than ten days, and not more than fifteen days, after the filing of the application therefore, unless, upon motion of a party with supporting excerpts from the record within ten days after the filing of such application, the superior court finds that: (a) The project is not a qualifying project, or (b) the project will not in fact provide new employment within the county in which the project is located. The court may make such findings upon a showing that said record contains clear, cogent, and convincing evidence to support such findings, which evidence has been testified to by at least one witness competent to testify on employment matters.

(3) A motion as set forth in subsection (2) of this section shall be heard within fourteen days after the filing of the motion and shall be confined to certified excerpts from the record, which any party may produce. It shall not be necessary to certify the entire record to the court for the purpose of hearing such motion.

(4) The court of appeals shall accept direct review of a case unless it finds that the superior court's certification under the standards contained in this section was clearly erroneous. Review by the court of appeals shall be restricted to the decision record of the permit agency and the board proceedings. All certified appeals shall be provided priority processing by the court of appeals.


[2003 c 393 15.]




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43.21L.900
Implementation 2003 c 393.
The legislature does not intend to appropriate additional funds for the implementation of this act and expects all affected state agencies to implement this act's provisions within existing appropriations.


[2003 c 393 24.]




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43.21L.901
Effective date 2003 c 393.
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 [May 20, 2003].


[2003 c 393 25.]