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Chapter 36.70C RCW

JUDICIAL REVIEW OF LAND USE DECISIONS

RCW Sections

36.70C.005Short title.
36.70C.010Purpose.
36.70C.020Definitions.
36.70C.030Chapter exclusive means of judicial review of land use decisions -- Exceptions.
36.70C.040Commencement of review -- Land use petition -- Procedure.
36.70C.050Joinder of parties.
36.70C.060Standing.
36.70C.070Land use petition -- Required elements.
36.70C.080Initial hearing.
36.70C.090Expedited review.
36.70C.100Stay of action pending review.
36.70C.110Record for judicial review -- Costs.
36.70C.120Scope of review -- Discovery.
36.70C.130Standards for granting relief -- Renewable resource projects within energy overlay zones.
36.70C.140Decision of the court.
36.70C.900Finding -- Severability -- Part headings and table of contents not law -- 1995 c 347.


36.70C.005
Short title.

This chapter may be known and cited as the land use petition act.

[1995 c 347 § 701.]




36.70C.010
Purpose.

The purpose of this chapter is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.

[1995 c 347 § 702.]




36.70C.020
Definitions.

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

     (1) "Energy overlay zone" means a formal plan enacted by the county legislative authority that establishes suitable areas for siting renewable resource projects based on currently available resources and existing infrastructure with sensitivity to adverse environmental impact.

     (2) "Land use decision" means a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on:

     (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;

     (b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and

     (c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.

     Where a local jurisdiction allows or requires a motion for reconsideration to the highest level of authority making the determination, and a timely motion for reconsideration has been filed, the land use decision occurs on the date a decision is entered on the motion for reconsideration, and not the date of the original decision for which the motion for reconsideration was filed.

     (3) "Local jurisdiction" means a county, city, or incorporated town.

     (4) "Person" means an individual, partnership, corporation, association, public or private organization, or governmental entity or agency.

     (5) "Renewable resources" has the same meaning provided in RCW
19.280.020.

[2010 c 59 § 1; 2009 c 419 § 1; 1995 c 347 § 703.]




36.70C.030
Chapter exclusive means of judicial review of land use decisions — Exceptions.

(1) This chapter replaces the writ of certiorari for appeal of land use decisions and shall be the exclusive means of judicial review of land use decisions, except that this chapter does not apply to:

     (a) Judicial review of:

     (i) Land use decisions made by bodies that are not part of a local jurisdiction;

     (ii) Land use decisions of a local jurisdiction that are subject to review by a quasi-judicial body created by state law, such as the shorelines hearings board or the growth management hearings board;

     (b) Judicial review of applications for a writ of mandamus or prohibition; or

     (c) Claims provided by any law for monetary damages or compensation. If one or more claims for damages or compensation are set forth in the same complaint with a land use petition brought under this chapter, the claims are not subject to the procedures and standards, including deadlines, provided in this chapter for review of the petition. The judge who hears the land use petition may, if appropriate, preside at a trial for damages or compensation.

     (2) The superior court civil rules govern procedural matters under this chapter to the extent that the rules are consistent with this chapter.

[2010 1st sp.s. c 7 § 38; 2003 c 393 § 17; 1995 c 347 § 704.]

Notes:

     Effective date -- 2010 1st sp.s. c 26; 2010 1st sp.s. c 7: See note following RCW 43.03.027.




36.70C.040
Commencement of review — Land use petition — Procedure.

(1) Proceedings for review under this chapter shall be commenced by filing a land use petition in superior court.

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

     (a) The local jurisdiction, which for purposes of the petition shall be the jurisdiction's corporate entity and not an individual decision maker or department;

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

     (i) Each person identified by name and address in the local jurisdiction's written decision as an applicant for the permit or approval at issue; and

     (ii) Each person identified by name and address in the local jurisdiction's written decision as an owner of the property at issue;

     (c) If no person is identified in a written decision as provided in (b) of this subsection, each person identified by name and address as a taxpayer for the property at issue in the records of the county assessor, based upon the description of the property in the application; and

     (d) Each person named in the written decision who filed an appeal to a local jurisdiction quasi-judicial decision maker regarding the land use decision at issue, unless the person has abandoned the appeal or the person's claims were dismissed before the quasi-judicial decision was rendered. Persons who later intervened or joined in the appeal are not required to be made parties under this subsection.

     (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 of the land use decision.

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

     (a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available;

     (b) If the land use decision is made by ordinance or resolution by a legislative body sitting in a quasi-judicial capacity, the date the body passes the ordinance or resolution; or

     (c) If neither (a) nor (b) of this subsection applies, the date the decision is entered into the public record.

     (5) Service on the local jurisdiction must be by delivery of a copy of the petition to the persons identified by or pursuant to RCW
4.28.080 to receive service of process. Service on other parties must be in accordance with the superior court civil rules or by first-class mail to:

     (a) The address stated in the written decision of the local jurisdiction for each person made a party under subsection (2)(b) of this section;

     (b) The address stated in the records of the county assessor for each person made a party under subsection (2)(c) of this section; and

     (c) The address stated in the appeal to the quasi-judicial decision maker for each person made a party under subsection (2)(d) of this section.

     (6) Service by mail is effective on the date of mailing and proof of service shall be by affidavit or declaration under penalty of perjury.

[1995 c 347 § 705.]




36.70C.050
Joinder of parties.

If the applicant for the land use approval is not the owner of the real property at issue, and if the owner is not accurately identified in the records referred to in RCW 36.70C.040(2) (b) and (c), the applicant shall be responsible for promptly securing the joinder of the owners. In addition, within fourteen days after service each party initially named by the petitioner shall disclose to the other parties the name and address of any person whom such party knows may be needed for just adjudication of the petition, and the petitioner shall promptly name and serve any such person whom the petitioner agrees may be needed for just adjudication. If such a person is named and served before the initial hearing, leave of court for the joinder is not required, and the petitioner shall provide the newly joined party with copies of the pleadings filed before the party's joinder. Failure by the petitioner to name or serve, within the time required by RCW 36.70C.040(3), persons who are needed for just adjudication but who are not identified in the records referred to in RCW 36.70C.040(2)(b), or in RCW 36.70C.040(2)(c) if applicable, shall not deprive the court of jurisdiction to hear the land use petition.

[1995 c 347 § 706.]




36.70C.060
Standing.

Standing to bring a land use petition under this chapter is limited to the following persons:

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

     (2) Another person aggrieved or adversely affected by the land use decision, or who would be aggrieved or adversely affected by a reversal or modification of the land use 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 land use decision has prejudiced or is likely to prejudice that person;

     (b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;

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

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

[1995 c 347 § 707.]




36.70C.070
Land use petition — Required elements.

A land use 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 local jurisdiction whose land use decision is at issue;

     (4) Identification of the decision-making body or officer, together with a duplicate copy of the decision, or, if not a written decision, a summary or brief description of it;

     (5) Identification of each person to be made a party under RCW
36.70C.040(2) (b) through (d);

     (6) Facts demonstrating that the petitioner has standing to seek judicial review under RCW 36.70C.060;

     (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.

[1995 c 347 § 708.]




36.70C.080
Initial hearing.

(1) Within seven days after the petition is served on the parties identified in RCW 36.70C.040(2), the petitioner shall note, according to the local rules of superior court, an initial hearing on jurisdictional and preliminary matters. This initial hearing shall be set no sooner than thirty-five days and no later than fifty days after the petition is served on the parties identified in RCW 36.70C.040(2).

     (2) 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. Where confirmation of motions is required, each party shall be responsible for confirming its own motions.

     (3) The defenses of lack of standing, untimely filing or service of the petition, 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 court allows discovery on such issues.

     (4) The petitioner shall move the court for an order at the initial hearing that sets the date on which the record must be submitted, sets a briefing schedule, sets a discovery schedule if discovery is to be allowed, and sets a date for the hearing or trial on the merits.

     (5) The parties may waive the initial hearing by scheduling with the court a date for the hearing or trial 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 (3) and (4) of this section.

     (6) A party need not file an answer to the petition.

[1995 c 347 § 709.]




36.70C.090
Expedited review.

The court shall provide expedited review of petitions filed under this chapter. The matter must be set for hearing within sixty days of the date set for submitting the local jurisdiction's record, absent a showing of good cause for a different date or a stipulation of the parties.

[1995 c 347 § 710.]




36.70C.100
Stay of action pending review.

(1) A petitioner or other party may request the court to stay or suspend an action by the local jurisdiction 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) A court may grant a stay only if the court 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 court 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.

[1995 c 347 § 711.]




36.70C.110
Record for judicial review — Costs.

(1) Within forty-five days after entry of an order to submit the record, or within such a further time as the court allows or as the parties agree, the local jurisdiction shall submit to the court a certified copy of the record for judicial review of the land use 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 court, 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 court.

     (3) The petitioner shall pay the local jurisdiction the cost of preparing the record before the local jurisdiction submits the record to the court. Failure by the petitioner to timely pay the local jurisdiction relieves the local jurisdiction 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 court shall equitably assess the cost of preparing the record among the parties. In assessing costs the court 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.

[1995 c 347 § 712.]




36.70C.120
Scope of review — Discovery.

(1) When the land use decision being reviewed was made by a quasi-judicial body or officer who made factual determinations in support of the decision and the parties to the quasi-judicial proceeding had an opportunity consistent with due process to make a record on the factual issues, judicial review of factual issues and the conclusions drawn from the factual issues shall be confined to the record created by the quasi-judicial body or officer, except as provided in subsections (2) through (4) of this section.

     (2) For decisions described in subsection (1) of this section, the record 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 land use 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 the quasi-judicial proceeding; or

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

     (3) For land use decisions other than those described in subsection (1) of this section, the record for judicial review may be supplemented by evidence of material facts that were not made part of the local jurisdiction's record.

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

     (5) The parties may not conduct pretrial discovery except with the prior permission of the court, which may be sought by motion at any time after service of the petition. The court shall not grant permission unless the party requesting it makes a prima facie showing of need. The court shall strictly limit discovery to what is necessary for equitable and timely review of the issues that are raised under subsections (2) and (3) of this section. If the court allows the record to be supplemented, the court shall require the parties to disclose before the hearing or trial on the merits the specific evidence they intend to offer. 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 court shall take such request into account in fashioning an equitable discovery order under this section.

[2005 c 274 § 273; 1995 c 347 § 713.]

Notes:

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




36.70C.130
Standards for granting relief — Renewable resource projects within energy overlay zones.

(1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. The court 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 land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

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

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

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

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

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

     (2) In order to grant relief under this chapter, it is not necessary for the court to find that the local jurisdiction engaged in arbitrary and capricious conduct. A grant of relief by itself may not be deemed to establish liability for monetary damages or compensation.

     (3) Land use decisions made by a local jurisdiction concerning renewable resource projects within a county energy overlay zone are presumed to be reasonable if they are in compliance with the requirements and standards established by local ordinance for that zone. However, for land use decisions concerning wind power generation projects, either:

     (a) The local ordinance for that zone is consistent with the department of fish and wildlife's wind power guidelines; or

     (b) The local jurisdiction prepared an environmental impact statement under chapter 43.21C RCW on the energy overlay zone; and

     (i) The local ordinance for that zone requires project mitigation, as addressed in the environmental impact statement and consistent with local, state, and federal law;

     (ii) The local ordinance for that zone requires site specific fish and wildlife and cultural resources analysis; and

     (iii) The local jurisdiction has adopted an ordinance that addresses critical areas under chapter 36.70A RCW.

     (4) If a local jurisdiction has taken action and adopted local ordinances consistent with subsection (3)(b) of this section, then wind power generation projects permitted consistently with the energy overlay zone are deemed to have adequately addressed their environmental impacts as required under chapter 43.21C RCW.

[2009 c 419 § 2; 1995 c 347 § 714.]




36.70C.140
Decision of the court.

The court may affirm or reverse the land use decision under review or remand it for modification or further proceedings. If the decision is remanded for modification or further proceedings, the court may make such an order as it finds necessary to preserve the interests of the parties and the public, pending further proceedings or action by the local jurisdiction.

[1995 c 347 § 715.]




36.70C.900
Finding — Severability — Part headings and table of contents not law — 1995 c 347.

See notes following RCW 36.70A.470.