ISSUE PAPER # 4
STANDARD OF REVIEW
Executive Summary
Questions to Answer:
What is the appropriate deference that should be given to:
| Local judgments about factual matters? |
| Local decisions on the meaning or interpretation of GMA? |
| Local exercises of discretion? |
Background Information:
GMA Standard of Review (RCW 36.70A.320)
| Plans and regulations are presumed valid upon adoption |
| The board shall determine whether there is compliance with GMA |
| The board shall find compliance unless it finds by a preponderance of the evidence that the local government erroneously interpreted or applied GMA |
Other Standards of Review
Questions of Law
| De novo - reviewing body may substitute its judgment for that of the decision maker |
Questions of Fact
| De novo - reviewing body acts as a fact finder | ||||||
| Clearly Erroneous
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| Substantial Evidence
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Matters of Discretion
| Arbitrary or Capricious
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| Clearly Erroneous
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| Rule of reason - did the decision maker go through a reasonably thorough discussion | ||||||
| Abuse of discretion
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| Could not conceivably have been the product of a rational decision maker |
Possible Options
Option 1: No action.
Pro:
| Will allow case law -- both that of the Boards and that of the Courts -- to continue to develop over time. |
Con:
| Makes what is, in other contexts, a burden of proof to be applied by a trier of fact into a standard of review that is applied by the Boards in an appellate context |
| Does not recognize the differences between a legislative record and a judicial or quasi-judicial record |
| Appears to require the Boards to give no deference to local government decisions applying the GMA, although in practice the Boards do give deference |
Option 2: Clearly Erroneous.
Adopt "clearly erroneous" as the standard of review to be applied to exercises of discretion.
Pros and cons:
| The standard is well defined in the case law |
| It is an intermediate standard of review that would provide a measure of deference but would allow a Board to find non-compliance when it was convinced that a mistake had been made in light of the record as a whole. |
| One factor to be considered in the review are the policies of the Act. |
| There does not appear to be a high risk of unintended consequences if this standard is applied in the unique context of the GMA. |
Option 3: Substantial Evidence. Adopt "substantial evidence" as the standard of review to be applied to exercises of discretion.
Pros and Cons:
| The standard is well defined in case law. |
| Uses a standard -- "substantial evidence" -- that is deemed to be deferential to findings of fact that are supported by a judicial or quasi-judicial record, but this standard may have unknown consequences when applied to an "action" supported by a legislative record. |
Option 4: Separate Standards for Law and Fact (SSB 6637). Adopt the approach of section 5 of SSB 6637 Footnote1: Separate standard for questions of fact and law. For questions of fact, the "action" of the local jurisdiction is to be upheld if it is supported by substantial evidence.
Pros and Cons:
| Provides for an unspecified degree of deference to local exercises of discretion and to local "action" |
| Uses a standard -- "substantial evidence" -- that is deemed to be deferential to findings of fact that are supported by a judicial or quasi-judicial record, but this standard may have unknown consequences when applied to an "action" supported by a legislative record |
| Does not indicate how the "substantial evidence" standard as applied to "action" interacts with the "shall not substitute its judgment" standard as applied to exercises of discretion |
Option 6: Arbitrary and Capricious. Adopt "arbitrary and capricious" as the standard of review to be applied to exercises of discretion.
Pros and cons:
| This standard is used in other statutes and in the common law to review legislative enactments |
| It is a highly deferential standard of review in theory, although it has been inconsistently applied by the Courts |
Option 7: Show your work. Adopt "show your work" as the standard to be applied to the record and/or to exercises of discretion, and provide a definition of this standard
Pros and Cons:
| Recognizes that a legislative record does not contain evidence that is weighed by a trier of fact |
| Would probably provide for a high degree of deference. For example, if it were defined to allow the local decision to stand so long as the record demonstrated that the legislative body had considered the relevant facts and made a reasoned decision, it likely would be similar in effect to the arbitrary and capricious standard. |
Option 8: Write a new standard, such as "fairly debatable," that does not have a body of law built up around it in other contexts.
Pros and cons:
| The GMA creates a relationship between the state and local government that is unique in Washington law, and writing a new standard fitted to this unique circumstance will not create the risk of unintended consequences that importing a standard from other contexts does Writing a new standard creates a period of greater-than-normal uncertainty while the Boards and the Courts learn to apply the new standard. Careful explanation of the intent of a new standard will be needed in order to minimize such uncertainty. |
"...In recognition of the broad range of discretion that may be exercised by counties and cities consistent with the requirements of this chapter, the board shall not substitute its judgment for that of a county or city regarding the exercise of such discretion. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). The board has no discretion to prioritize, balance, or rank the goals set forth in RCW 36.70A.020, all of which shall be used by counties and cities as provided in RCW 36.70A.020.
(b) The burden of proof shall be on the petitioner. The board shall find compliance unless it finds ((by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter)) that: (i) The state agency, county, or city erroneously interpreted this chapter; or (ii) the action of the state agency, county, or city is not supported by evidence that is substantial when reviewed in light of the whole record before the board."
