Regulatory Reform (ESHB 1724) Overview

The 1995 Legislature adopted "regulatory reform" legislation (ESHB 1724) for the purpose of simplifying and integrating the various state land use and environmental regulations. Most of this legislation is embodied in chapter 36.70B RCW. All of this legislation's requirements apply to cities and counties planning under the Growth Management Act (GMA), while only part of its requirements apply to non-GMA cities and counties. Cities and counties were required to implement locally the requirements that apply to them by March 31, 1996. What follows is a summary of the major provisions of this legislation, including amendments adopted since 1995.

I. Provisions of most significance:

A. Coordination/consolidation of local permit process with State Environmental Policy Act (SEPA) review (RCW 43.21C.075(3)).

1. Before regulatory reform: SEPA review of threshold determination appeal hearings (if provided for) occurred before hearing(s) on underlying land use permit. Some cities and counties allowed a threshold determination appeal hearing (such as before a hearing examiner) and then an appeal of that decision to the legislative body (city council, board of county commissioners). Problem with this procedure - length of permit process, duplication of review.

2. Regulatory reforms: Apply to all cities and counties, GMA and non-GMA

3. SEPA appeal hearing (if any is provided) on negative threshold determination (DNS) must occur at the same hearing in which a hearing body (e.g. planning commission) or officer (hearing examiner) makes a recommendation (to legislative body) or decision on the underlying land use permit. This is the "open record hearing," discussed below.
4. SEPA appeal hearing (if any is provided) on DS (requiring that an EIS be prepared) may occur before any hearing on the underlying land use permit. (As in pre-regulatory reform days, any appeal of a SEPA determination is to superior court along with the appeal on the underlying permit.)
   

B. Project permit process.

1. Definition of project permit (RCW 36.70B.020): any land use or environmental permit or license required by a city for a project action, including building permits, subdivisions, planned unit developments, shoreline permits, site-specific rezones. (Some of these project permits may, however, be excluded from most project permit process requirements; see below.) Does not include: comprehensive plan adoption or amendment; area-wide zoning.

2. All cities and counties (GMA and non-GMA) must have established a project permit process to do the following (RCW 36.70B.050):

   • Combine SEPA review process with process for review of project permit applications (see above), and
   • Provide for no more than one open record hearing and one closed record appeal on a project permit application.

   What is an open record hearing? It is the traditional public hearing in which testimony, evidence, and other information (reports, studies, etc.) is presented, where the record for the decision on the project permit is developed. It may be held prior to the decision on the project permit or it may be held on an appeal (such as from an administrative decision). (RCW 36.70B.020(3))

   What is a closed record appeal? It is an appeal proceeding (typically this would be before the legislative body) held after an open record hearing on a project permit application. It is not a hearing, because no, or only limited, new evidence or information may be presented (the record is closed). Basically, all that would be presented would be oral argument based on the record. (RCW 36.70B.020(1))

3. GMA cities and counties must have established an integrated and consolidated project permit process. This is the requirement that causes the most sweat and fuss for GMA cities and counties. (RCW 36.70B.060)

   This integrated and consolidated process includes the following requirements (these are not all of them, but they are the most significant):
   

   • A determination of completeness of a project permit application. This must be done within 28 days of a city or county receiving a project permit application. This determination must state that the application is complete or that it is not complete and indicate what is needed to complete the application. (RCW 36.70B.070)

   • A notice of application that is to be provided to the public and any agencies with jurisdiction. It must be provided within 14 days of the determination of completeness. There are many requirements for this notice. (RCW 36.70B.110). Note that this statute was amended in two different ways in two separate bills passed by the 1997 Legislature. Under statutory rules for resolving conflicts between bills on the same subject, the amendments that were part of chapter 429, Laws of 1997 control.)

   • An optional consolidated project permit review process. This process is to be available when there are two or more project permits relating to a proposed action. The determination of completeness and the notice of application would include all of the project permits addressed by the consolidated procedure.

   • A determination of consistency. (RCW 36.70B.030, 36.70B.040) During project permit review, the city or county must determine the proposed project's consistency with its development (zoning) regulations or, in the absence of such regulations, with the comprehensive plan adopted under the GMA.

   • The one open record hearing and one closed record appeal limitation is again referenced here.

   • A decision on the application within the time period established by local ordinance for that decision, which time period should not exceed 120 days. (RCW 36.70B.080, as amended by ESHB 1458 (Chapter 322, Laws of 2001)). The time period for local government action may exceed 120 days only if the local government makes written findings that a specified period of additional time is necessary for processing. Local governments are subject to potential liability under RCW 64.40.020(1) for failure to make a decision on an application within the time period they have established for making that decision.

   • Other requirements relating to the project review process. (RCW 36.70B.030) One important element of this review process is the authorization to determine that the environmental analysis conducted for and the mitigation measures included in applicable development/zoning regulations provide adequate mitigation of a project's adverse impacts. One of the important regulatory reform policies that is implemented here is to avoid duplication in environmental review. This policy recognizes that the environmental analysis of a comprehensive plan and of specific development regulations may adequately address the impacts of certain developments/projects permitted under the plan and regulations.

   • Exclusions allowed. (RCW 36.70B.140) A local government may exclude certain project permits from most of the above provisions. A city or county may by ordinance or resolution exclude landmark designations, street vacations, other approvals relating to the use of public areas or facilities, and other project permits that the city or county determines present special circumstances that warrant a different review process.

     A city or county may also exclude certain project permits from some of the above provisions. Such excludable project permits include boundary line adjustments, building permits, and similar approvals that are categorically exempt from SEPA.
     

II. Selected other elements of regulatory reform:

A. Shoreline Management Act (SMA) changes, including integration of SMA planning and GMA planning. The goals and policies of a local government's shoreline master program now function as an element of its comprehensive plan adopted under the GMA. (RCW 36.70A.480)

B. Optional "development agreements" authorized (for all cities and counties). (RCW 36.70B.170 - .210) A development agreement, consistent with development regulations, may be agreed to between a local government and a developer that would define the development standards and environmental mitigations that would apply to the development project.

C. A local government may now delegate to a hearing examiner the authority to hear and make final decisions on all project permit applications, with the exception of site-specific rezones, for which the legislative body must make the final decision. Thus, a city council or board of county commissioners may take itself almost entirely out of the land use permit appeal process, with that one exception.

D. New rules for judicial appeals of local land use decisions. The "Land Use Petition Act," codified in chapter 36.70C RCW, establishes a uniform procedure for appealing land use decisions to the superior court. A party now has 21 days from the issuance of a land use decision to appeal to the superior court. The new rules include uniform procedures for such appeals.

Related Resources
MRSC Index – Regulatory reform of land use and development (ESHB 1724, Ch. 36.70B RCW, Ch. 347 Laws of 1995)