CONSOLIDATED LAND USE CODE ISSUE PAPER
APPEALS AND ENFORCEMENT
(3^rd Draft)

Land use and environmental issues are subject to a variety of appeal mechanisms. The appeal mechanisms vary depending on the nature of the action, the subject matter of the decision, and the body making the decision. In its review of a consolidated land use code, the Land Use Study Commission is exploring the current appeal system and whether any modifications should be recommended.

A second issue the Commission is exploring is the enforcement of land use and environmental conditions. The extent to which permit conditions are enforced is an important element in the entire land use process.

The Shoreline Management Act (SMA) creates the Shoreline Hearings Board. The Board has six members – the three members of the Pollution Control Hearings Board, one representative each of the Commissioner of Public Lands, cities, and counties.

The Board has jurisdiction over guidelines (rules) adopted by the Department of Ecology (Ecology), decisions by Ecology to approve or disapprove shoreline master programs adopted by a county or city not planning under the Growth Management Act (GMA), shoreline substantial development permits issued by a county or city, and Ecology actions on conditional use permits and variances issued by a county or city.

Appeals of Ecology rules are governed by specific provisions of the SMA, rather than the Administrative Procedures Act (Ch. 34.05 RCW). The requirements of the two statutes are similar. Appeals to the SHB of Ecology’s actions with respect to a shoreline master program are governed by the APA, including the APA provisions governing standing to appeal. Any person "aggrieved by the granting, denying, or rescinding of a [shoreline substantial development] permit" may appeal the action to the SHB. Ecology and the Attorney General also have standing to appeal any permit decision to the Board. Ecology decisions to grant or deny a conditional use or variance issued by a local government may also be appealed to the SHB.

Appeals of county and city permit decisions are considered to be adjudicative proceedings under the APA. The SHB is encouraged to adopt alternative processes to expedite appeals.

SHB decisions are appealable to Superior Court under the APA. The SHB may certify certain cases to the Court of Appeals if it determines that a subsequent appeal is likely, that there are not factual matters in dispute and that the matter is of substantial statewide interest.

The Growth Management Hearings Boards (GMHBs) have authority to hear appeals of county and city legislative actions made pursuant under the GMA. These are limited to actions concerning comprehensive plans and development regulations, and the requirements to designate critical areas and natural resource lands. There are three GMHBs – Central Puget Sound, Western Washington, and Eastern Washington. Each Board has three members appointed by the Governor for six year terms. Board members are not subject to Senate confirmation.

The APA governs proceedings before the Boards, although there are specific procedural requirements set forth in statute. Generally, a party must have either have standing under the APA or have appeared before the local government to have standing to appeal to the Board. A county or city and the state may also appeal. State agencies may only appeal with the permission of the Governor.

A comprehensive plan or development regulation adopted by a county or city under the GMA is presumed valid upon adoption. The burden is on the petitioner to show that the action does not comply with the goals and requirements of the GMA. The board must find the county or city action to be clearly erroneous in order to find that the action does not comply with the GMA. The Board may remand or, upon appropriate findings, determine the action is invalid.

GMHB decisions may be appealed to Superior Court under the APA. A GMHB may certify a case to the Court of Appeals under the same conditions as the SHB.

The Pollution Control Hearings Board (PCHB) has three members appointed by the Governor for six year terms. PCHB members are subject to Senate confirmation. The PCHB has jurisdiction over a variety of penalties, orders, or permits issued by Ecology, air pollution control authorities, and local health departments. The PCHB also has authority to review certain rules adopted by Ecology, including rules adopted under the State Environmental Policy Act (SEPA).

Appeals of agency actions concerning permits, penalties, and orders are governed by the APA.

PCHB decisions may be appealed to superior court under the APA.

The Forest Practices Appeals Board (FPAB) has a similar structure to the PCHB, with three members appointed by the Governor and subject to Senate confirmation. The FPAB has jurisdiction over Department of Natural Resources decisions concerning forest practice applications.

The Land Use Petition Act (LUPA) was adopted in 1995 to replace the common law writs that had formed the primary basis for appeals of city and county land use decisions. LUPA applies to land use decisions made by local governments, including decisions on applications to develop real property and the application of ordinances and regulations to the property. LUPA establishes time periods for the appeal, procedure for service and parties that must be served, standing requirements, and standards for admitting additional evidence and for the review.

State statutes and local ordinances provide a wide range of penalties for enforcement of environmental and land use laws. Although some statutes do provide for criminal penalties, the more common sanction is civil penalties. Criminal penalties are more difficult to enforce, in part because the process for imposing them is more complicated. In the 1970s, King County made significant changes to its penalty provisions, replacing many criminal penalties with civil penalties. At least part of the reason for the change resulted from the reluctance of prosecutors to use the criminal sanctions.

Land use enforcement actions are the largely the responsibility of local governments. State agencies have more authority to enforce environmental laws.

Although not common, some federal and local laws do allow for third party enforcement, or citizen suits. The Federal Clean Water Act is an example of a federal statute. Since the 1980’s, Island County’s Zoning Code has permitted citizens to bring an enforcement action before the County’s Hearing Examiner.

State and local governments have experimented with a variety of alternative enforcement mechanisms, many of which do not rely on traditional enforcement mechanisms such as penalties. Some examples include requirements for bonding to guarantee performance, monitoring, or reporting include as part of permit conditions.

In considering what type of appeal process should be used, several factors need to be taken into consideration.

An important consideration for the type of appeal process is the nature of the record that has been created. The type of record may vary according to the type of decision. A decision on a specific project application may be susceptible to clear findings of fact and conclusions of law. The findings and conclusions to support a decision to adopt one particular policy among the many different policies that would comply with the law may be of a different nature.

These differences are in part a difference of whether the decision is a matter of applying the law to a specific set of facts or whether it is a matter of deciding what the law should be. In the former case, if review of the decision of whether the law was correctly applied, the record must be sufficient to allow the reviewing body make that determination, or else the reviewing body must be able to make the determination on its own by ascertaining the facts.

Proceedings that generate more complete records may take longer to complete and may also be more expensive.

The type of decision-making proceeding can also have an effect on the appeal process. If the proceeding is informal, without sufficient procedural safeguards, the fairness of the process may be questionable, particularly if the decision concerns the application of law to facts and there is uncertainty as to whether an opportunity for interested parties to present evidences has been provided. To some extent, the decision-making entity may also have some bearing on this issue. A "neutral" party, e.g. a hearing examiner, with expertise in holding fact-finding hearings, will raise fewer questions than a decision maker that may also act as a policy making body at other times, such as the local legislative body.

The type of appellate proceeding may also be determined by concerns that the public should have an opportunity to appear before a decision maker that will assure that there is an opportunity for all sides of an issue to be heard, but without a process that is so formal that it intimidates a party who cannot afford to be represented by an attorney.

The type of decision making body is also dependent on the importance placed on reducing the instances where a decision may be subject to appeal to multiple decision-makers because of the nature of the action proposed. For example, under current processes, it is possible that a single project might be subject to appeals to the Shoreline Hearings Board, the Pollution Control Hearings Board, the Forest Practices Appeals Board, and superior court. These appeals could take place simultaneously and might involve similar issues. Even in circumstances where only one body has jurisdiction, there are some issues that the decision maker may not have the authority to decide. For example, the GMHBs do not have authority to resolve constitutional issues, thus requiring a constitutional challenge to be filed with the courts while a proceeding before the GMHB might be pending.

Some types of decisions may implicate issues of import state-wide. An appeal process of a certain type may be designed to assure that these broader state-wide interests are given appropriate consideration and that local interests do not adversely affect those broad public concerns.

An appeal process may also be designed in a manner to recognize that a decision is a matter involving shared state and local responsibilities. For example, a local decision that is made after consultation with relevant state agencies, and that has appropriately taken into account the concerns of those agencies might be subject to a different appellate process than a decision that is made without these actions. A local decision based on standards that have been developed jointly with other interested parties might also be subject to a different review process.

The Commission has heard from many local government officials, particularly in planning departments, that resources for enforcement are often low on the priority list for funding. Local and state government financial resources become increasingly constrained by other demands. Counties, in particular, are facing fast increasing criminal justice costs.

At the state and federal levels, there has also been a trend towards emphasizing technical assistance and away from imposing sanctions.

Because of these factors, enhanced enforcement mechanisms will need to rely on mechanisms that do not require funding or include a funding mechanisms as part of the proposal.

Another concern is that by increasing the formality of the process, the ability to participate in the process without legal counsel is hampered.

Another issue concerns the impact this process would have on smaller jurisdictions that have a limited number of project permit applications. Although most jurisdictions that process a significant number of applications in a year could adapt to this system relatively easily, for those jurisdictions that have a limited number of applications, the cost could be unduly burdensome. Providing technical assistance and access to hearing examiners might help address this concern.

Retain the current process with appeals going to one of the existing hearings boards or superior court, depending on the nature of the issue. One variation would provide that all appeals from hearings board decisions would be heard by the Court of Appeals rather than the superior court. This is an option under current law that is not often taken advantage of.

The large majority of local land use decisions do not result in any appeals. To the extent that there are legitimate concerns about duplicate processes, there are alternatives that could be explored other than changing the underlying structure of the boards.

Each of the existing hearings boards has expertise in its subject matter. Eliminating or combining the boards will result in a loss of both historical perspective as well as consistency of application.

The boards are important in assuring that in matters that the Legislature has determined are of importance statewide, local concerns and desires do not override that statewide interest.

Although the actual number of cases that are appealed may be small, there are many more cases where the threat of becoming mired in the process has led a project applicant to accept conditions that would otherwise be questionable. The appeals filed are just the tip of the iceberg.

The current process can be easily abused by a party to either prolong a final decision as a way to try to kill a project or to wear out an opponent through forcing

The current process involves state boards in reviewing decisions that should be left to local discretion. It is an inappropriate intrusion of the state into local processes.

2. Unified Hearings Board

Combine the existing hearings boards into a single hearings board. An appeal of the hearings board decision would be filed in the Court of Appeals, bypassing the superior court. One variation would provide for regional hearings boards, similar to the three Growth Management Hearings Boards. Another variation would be to have one board, but with members appointed from around the state and sitting as regional panels.

The GMHBs will probably see a declining caseload in the next few years, calling into question the need for three full time boards.

To the extent the board has jurisdiction over a variety of related land use issues, it would allow for resolution of those issues in a single proceeding. This would also increase the likelihood that any inconsistencies in application of different statutes are resolved.

If the board had regional panels, it could increase the ability to provide for regional flexibility in the implementation of the different environmental statutes.

For those issues that are of greater than local concern, the board would provide a way to assure that interests of other jurisdictions, or the public as a whole, are taken into consideration.

If the jurisdiction of the board is expanded to include additional issues, the result will be to give the state board authority to decide issues that are more appropriately resolved at the local level.

The proposal does not eliminate any steps in the review process. It only substitutes the hearings board for superior court.

Eliminate the hearings boards and provide that all appeals are filed with the superior court. The authority of the superior court to appoint special masters could be expanded to address the need of some courts to obtain the expertise necessary to resolve technical issues that may arise. A variation would be to provide for all appeals to a single superior court, such as Thurston County. This was the case under the GMA as originally adopted. Another variation would be to establish a special division of the superior court that considers land use issues. This could either be established in one specific county, such as Thurston, or as a statewide superior court. Creating a special division of superior court might require a constitutional amendment. A mechanism for electing the judges would also need to be established.

Provides a forum where all questions, including constitutional issues, can be resolved in a single proceeding.

Relies on elected judicial officers to review the decisions of other elected officials.

Allows decisions to be made locally, at less cost to the parties.

Relies on an established process, with rules and procedures that are well understood.

Unless a single superior court is used, the proposal requires knowledge of land use and environmental laws that few superior court judges have. Access to special masters may help, but this does not remove the underlying problem of a lack of expertise on the part of the judge.

To the extent that local superior courts reflect the interests of the local community, issues that present questions of the larger statewide interest may not be given appropriate consideration. In some cases, the control over the court’s budget by the local legislative body may present some concerns.

As compared to a quasi-judicial process that may allow for more informality in its proceedings, judicial proceedings require legal representation. This adds to the cost and can exclude some from being able to have a forum for presenting legitimate grievances against governmental action.

Superior court judges do not often have access to resources to assist them in dealing with complex legal and factual issues.

4. Court of Appeals/Hearings Board Combination

This proposal would provide that some issues would be heard by one or more hearings boards, and other issues would be heard by the Court of Appeals. The hearings board(s) would have jurisdiction over those land use decisions determined by the Legislature to be of statewide significance. Examples of local land use decisions that would not be considered of statewide significance are shoreline substantial development permits and conditional uses and variances under the SMA. Local land use decisions that would be considered of statewide significance would include comprehensive plan and development regulations adopted under the GMA or the SMA. Appeals from the hearings board(s) would be to the Court of Appeals. The Court of Appeals would hear all other appeals of local land use decisions. Appeals of permits issued by state agencies, such as NPDES permits, would be heard by the Hearings Board(s).

Focuses the hearings boards on issues that are of statewide significance.

Eliminates some, although not all, of the duplication in the existing appeal systems.

Essentially eliminates the Shoreline Hearings Board, since most appeals to that board are of shoreline permits.

Presumes that permits seldom involve statewide issues.

5. State Land Use Court

Appeals of land use decisions would be filed with a new state land use court. There are two ways in which the court could be established. If the court were established as another "inferior court", analogous to the district courts, it could be established by statute. There would be some issues concerning the relationship of the court to the superior courts. Anther issue to be resolved would be the method of appointment or election. District court, superior court, and appellate judges are all subject to election in this state. A second approach would be to create a special division of the superior court, called the land use court. If this were done on a county by county basis, no constitutional change would be required. The juvenile courts were established by statute. If the land use court were to operate statewide, a constitutional amendment would probably be necessary. A third option, would be to create a new division of the court of appeals to hear land use issues. This could be accomplished by statute, since the constitution gives the Legislature considerable flexibility in establishing the jurisdiction and structure of the Court of Appeals.

A land use court would have the authority to decide all issues, including constitutional questions.

The members of the court would develop expertise in the area of law.

If the court were established either on a regional or statewide level, there would be an increased likelihood that matters of statewide concern would receive appropriate consideration and that there would be greater consistency of application between local governments.

A court established as a division of the Court of Appeals would eliminate one step in the appeal process.

Creating a new court would add to an already complex judicial system.

Unless the court is established at a level similar to the Court of Appeals, there would not be any significant improvement in the overall process. There would only be a substitution of one forum (superior court or the hearings board) for another (the new land use court).

5. Court of Appeals

Provide for appeals of land use decisions to be filed directly with the Court of Appeals.

Relies on existing judicial mechanisms. The only added cost might be the need for additional judges. However, this might be offset by a reduction in caseloads before the superior courts and the existing hearings boards.

Court of Appeals judges have access to law clerks and other resources helpful in reviewing an analyzing cases.

An appeal before the Court of Appeals can take from one year to 18 months, including time for briefings, oral argument, and the written decision. Most superior courts and hearings boards can issue decisions in a more timely manner.

Many land use decisions, particularly those involving projects, may require fact-finding. This is not something the Courts of Appeal are organized to easily handle.

To the extent not already authorized, allow local governments to impose civil penalties for violation of permit conditions.

Civil penalties are easier to enforce than criminal penalties and are more likely to be pursued. Criminal penalties for violating permit conditions do not have a high priority in the enforcement scheme when compared to other types of crimes.

Civil penalties, if of sufficient magnitude, provide the economic incentive for a permit holder to comply with permit conditions.

Permit conditions are often subject to varying interpretation.

The emphasis should be on encouraging compliance, not on penalizing. More often than not, the violation is due to misunderstandings than purposeful. If given the opportunity, most permit holders will comply with their conditions.

There are a number of mechanisms that can be used to increase the likelihood of compliance, besides imposition of penalties. These might include: performance bonds, periodic reporting requirements, escrow accounts, and oversight mechanisms.

Performance bonds provide a way for a third party – the surety – to be responsible for assuring the

Periodic monitoring and reporting requirements provide a means for the permitting agency and the public to evaluate whether the permit holder is following permit conditions.

Performance bonds may be useful in some limited circumstances, but for conditions that require long term maintenance, or for which compliance will be difficult to easily ascertained, they may be impossible to purchase.

Monitoring and reporting requirements can result in needless paperwork that burdens both the permit holder and buries the permitting agency in paperwork that it does not have time to review and analyze.

Third party enforcement mechanisms can involve a variety of different options. The proposal here is that a third party could file a petition with the permitting agency claiming that a permit holder is not complying with permit conditions. After allowing a period of time for the agency to act, the third party could file an action for enforcement either before the local government’s hearing examiner or in the courts. The hearing examiner or the court would decide whether there was a violation of the permit and enter appropriate orders, including an award of reasonable attorney’s fees to the prevailing party in appropriate circumstances.

Allow third party actions is an effective way to allow enforcement without the need for a governmental agency to add staff or take away from other important responsibilities.

Since monitoring and enforcement often has a lower priority for funding, this is the only realistic means for assuring that

This allows those who have most at stake in assuring that enforcement of permit conditions to assure that those conditions are satisfied.

Providing for attorneys’ fees will reduce the opportunity for frivolous or abusive use of this process.

Enforcement is a responsibility of governmental entities and should not be turned over to private parties.

The opportunities for frivolous actions is considerable. The potential for an award of attorneys’ fees will not address other costs and inconveniences. In the judicial system, there has been a reluctance to award attorneys’ fees for frivolous actions.

Most agencies charged with enforcing permit conditions claim that a major factor in their inability to effectively monitor and enforce permit conditions is a lack of resources. A fee imposed on each permit and deposited into an account dedicated to providing that monitoring and enforcement would help address the resource issue. Another option would be to require that any civil penalties collected for violations of permit conditions would be used to support the monitoring and enforcement program.

The fee would be paid by those whose activities call for their need.

Placing the fee in a dedicated account will assure that the funds are not diverted to other purposes.

State and local governments already have adequate financial resources. The question is one of priorities and they have decided that monitoring and enforcement is not a priority.

Permit fees are already too high. This will place a further burden on the cost of construction and impact affordable housing.

Allowing for penalties to be used to pay for further enforcement activity will create a conflict of interest.