PROPOSED RULES
(Shorelines Hearings Board)
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Shorelines Hearings Board--Practice and procedure--Part C filing an appeal with the board and service. Decisions by the board after hearing--Final decisions and orders.
Purpose: WAC 461-08-355, brings rules into conformance with amendment to RCW 90.58.180(1) requiring that a petitioner serve local government with a copy of a petition for review to the Shorelines Hearings Board within seven days of filing the petition, condenses service information into one section for greater clarity. WAC 461-08-360 (repeal) eliminates reference to service on the chief legal officer of local government, which had proved confusing and unworkable. WAC 461-08-555, clarifies the result when less than a majority of the board members agree on a decision.
Statutory Authority for Adoption: RCW 90.58.175.
Statute Being Implemented: RCW 90.58.180(1), 90.58.170, 90.58.185(2).
Summary: WAC 461-08-355 is amended to incorporate service on local government as required by RCW 90.58.180(1). Service on the project applicant is moved from WAC 461-08-360 to 461-08-355, consolidating service requirements into one section. WAC 461-08-360 is repealed and the reference to service on the chief legal officer of local government is eliminated. WAC 461-08-555 is amended to clarify which decision controls when less than a majority of the board members agree on a decision.
Reasons Supporting Proposal: (1) Consistency between Shorelines Hearings Board rules and RCW 90.58.180(1); (2) consolidates service requirements in one place for increased ease of use; (3) eliminates confusing reference to serving the chief legal office of local government; (4) further clarifies the controlling decision in cases where a majority of the board members do not agree on a decision.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Phyllis Macleod, Environmental Hearings Office, (360) 459-6327.
Name of Proponent: Environmental Hearings Office, governmental.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The Environmental Hearings Office recommends making these amendments to the rules of the Shorelines Hearings Board.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The legislature amended RCW 90.58.180(1) to require a petitioner challenging action by a local government to serve a copy of the petition on that local government within seven days of filing the petition with the Shorelines Hearings Board. The amendment to WAC 461-08-355 incorporates that requirement into the regulation governing service. The need to serve the permit applicant formerly addressed in WAC 461-08-360 is moved to WAC 461-08-355 to place all service requirements in one section. WAC 461-08-360 is repealed. Reference to service on the chief legal office of local government is deleted from the regulations because it has proved confusing and unworkable. WAC 461-08-555 is modified to clarify that the decision being appealed controls if our members of a full board or two members of a short board do not agree to grant the appeal. The decision on appeal could be rendered by a local government or by state government.
Proposal Changes the Following Existing Rules: The proposal changes WAC 461-08-355 to bring it into conformance with local government service requirements established by RCW 90.58.180(1). The proposal also moves language about serving the permit applicant into this section on service. WAC 461-08-360 is repealed, thereby consolidating service requirements into one section and eliminating a reference to serving the chief legal office which had proved confusing and inaccurate. WAC 461-08-555 is modified to further clarify that pursuant to RCW 90.58.170 and 90.58.185(2), whatever decision is being appealed will control if a majority of the board members do not agree to grant the appeal. The decision on appeal could be a local or state decision depending on the permit involved.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposal is exempt under RCW 19.85.025(3) which states that the small business economic impact statement is not required for rules described in RCW 34.05.310(4). RCW 34.05.310 (4)(g)(ii) pertains to rules that adopt, amend or repeal procedural rules for agency hearings.
RCW 34.05.328 does not apply to this rule adoption. These procedural rule changes are not significant legislative rules of any of the agencies described in RCW 34.05.328(5) and as these are largely changes dictated by statute or efforts to provide greater clarity, the Environmental Hearings Office is not voluntarily making the requirements applicable to these rules.
Hearing Location: Environmental Hearings Office, 4224 Sixth Avenue S.E., Building 2, RoweSix, P.O. Box 40903, Lacey, WA 98504-0903, on November 4, 1999, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Judy Greear, Clerk, by October 20, 1999, (360) 459-6327.
Submit Written Comments to: Phyllis Macleod, Environmental Hearings Office, 4224 Sixth Avenue S.E., Building No. 2, RoweSix, P.O. Box 40903, Lacey, WA 98504-0903, fax (360) 438-7699.
Date of Intended Adoption: November 4, 1999.
Phyllis K. Macleod
OTS-3342.1
AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96,
effective 8/3/96)
WAC 461-08-355
Service of petitions for review with
department and attorney general--Intervention by the department
and attorney general.
(1) For a petition((s)) pertaining to a
local government's final decision on a permit, the petitioner
shall ((file one copy of)) serve the petition with the department
((and one copy with the office of)), the attorney general and
that local government within seven days of ((the date that))
filing the petition ((was filed)) with the board.
(2) Within fifteen days of the date of receipt of the petition for review described in subsection (1) of this section, the department or the attorney general may intervene in the case before the board to protect the public interest and to insure compliance with chapter 90.58 RCW. Nothing in WAC 461-08-345, setting a twenty-one day limit on when the department or the attorney general can directly file a petition for review, limits the right of the department or attorney general to intervene under this section in a board proceeding.
(3) When the petitioner is not the permit applicant, the petitioner shall serve the permit applicant with a copy of the petition for review.
[Statutory Authority: RCW 90.58.175. 96-15-002, § 461-08-355, filed 7/3/96, effective 8/3/96.]
(1) Full-board
cases. When the hearing on the petition for review has been
heard by a majority of the board in a full-board case, and upon
completion of the record and submission of the issues for
decision and order, a written final decision and order concurred
in by them then may be adopted which shall contain findings and
conclusions as to each contested issue of fact and law:
Provided, That in the event that the full board considers the
record and that four of the members cannot agree on a decision,
the substantive decision ((of the local government)) under appeal
will control. The board will formally adopt its final decision
and order: Provided further, That this subsection does not apply
to a request for review filed under RCW 90.58.210.
(2) Short-board cases. When the hearing on the petition for
review has been heard by two or more board members in a
short-board case, and upon completion of the record and
submission of the issues for decision and order, a written final
decision and order concurred in by them then may be adopted which
shall contain findings and conclusions as to each contested issue
of fact and law: Provided, That in the event that the three
board members consider the record and two members cannot agree on
a decision, the substantive decision ((of the local government))
under appeal will control. The board will formally adopt its
final decision and order.
(3) Copies of the final decision and order shall be mailed by the board to each party to the petition for review or to the attorney or representative of record, if any. Service upon the representative shall constitute service upon the party.
[Statutory Authority: RCW 90.58.175. 96-15-002, § 461-08-555, filed 7/3/96, effective 8/3/96.]
The following section of the Washington Administrative Code is repealed:
| WAC 461-08-360 | Service of the petition for review on local government and other parties. |