I. Meeting convened at 12:30 p.m.

A.Members Present:

Ryan Durkan, Chair; Commissioner Phil Best, Skip Burch, Tom Campbell, Keith Dearborn, Kathy Dietrich, Loren Dunn, Mayor Ed Hansen, Terry Husseman, John Herrick, David Moseley, Kimberly Ordon, and David Roseberry.

B. Staff Present:

Harry Reinert and Julie Knackstedt.

II. Chair's Report

A. Meeting with Representative Marlin Appelwick.

The Chair said she had asked whether it would be useful to have legislators appointed as members of the Commission. Rep. Appelwick thought a less formal means of involving legislators, such as a sounding board or focus group, might be more productive.

B. Testimony before the Senate Government Operations and Ecology and Parks Committees.

The Chair spoke to a joint committee hearing on January 9, just prior to the Commission's meeting. The question of financing of integrated plans was mentioned by a number of other presenters at the hearing. Other issues raised at the hearing included: the use of determinations of invalidity by the Growth Management Hearings Boards; the authority of the boards in general; and the impact of water rights on development.

The Chair told the Committees that due to the short session, and the fact that the Commission meets only monthly, it would probably not be making any substantive legislative recommendations this session. She did ask the Legislature not to construe the Commission's silence as its taking a position either for or against any particular legislation.

C. The Chair received a copy of a letter from the Growth Management Hearings Boards to Sen. Haugen. Copies of the letter will be made available to the Commission members.

D. The Chair has received a number of calls asking how people can participate in the Commission's process. One of the suggestions was the creation of "sounding boards," similar to the boards used in the review of changes to the Model Toxics Control Act rules.

E. Ann Aagard, with the League of Women Voters, has submitted a letter to the Commission commenting on the notice provisions in the Shoreline Management Act

III. Finance Committee Report — Chris Parsons, DCTED Staff

A. The Finance Advisory Committee (Commissioner Best, Mr. Dunn, and Mayor Hansen) reviewed the draft workplan in light of the delay caused by the December windstorm. The time frames in the workplan were moved back a month, except that the date for the final report from the Committee to the Commission will still be in June. Mr. Husseman said he would also be willing to serve on this advisory committee.

B. The initial stages of the workplan will involve collecting information on existing planning activities, including planning funds available to both public and private entities.

C. The Committee reviewed a list of names who had been recommended to it for membership on the Committee. The Committee decided to invite all those who had been recommended and to break into subcommittees to address the different tasks that comprise the workplan.

D. The first meeting of the Committee will be February 1, from 9 a.m. to noon, at a place yet to be determined.

IV. 1971-1973 State Land Planning Commission Report

A. Dick Chapin — Chair, State Land Planning Commission

1. The State Land Planning Commission had eight legislators and eleven public members. The public members included two attorneys, Mr. Chapin and Mr. Hillis, a planner, a realtor, a local government official, and a representative from the League of Women Voters.
2. The Land Planning Commission had a large staff. There were as many as twelve staff members.
3. The Commission started with Sen. Bluechel's idea that the state should have a database of land uses.
4. The Commission expanded its horizons by looking at the American Land Institute's Model Land Use Code. This was largely a procedural effort. The Commission attempted to be as policy neutral as possible. At the time, nearly all land use decisions at the local level were legislative, there were no quasi-judicial decisions.
5. The Commission may have been overly legalistic in its approach. The recommendations may have been really understood only by the attorneys.
6. There was no perceived crisis in the land use field.
7. The Commission met over the course of two years. Meetings were generally held on Friday evenings and all day Saturday. They met around the state and with every interest group possible. The result was a bill of close to 200 pages that was introduced in the 1972 session. It passed the House of Representatives, but died in the Senate. One mistake may have been calling it the "Land Planning Act." At the time, planning was considered to be a suspect activity by many people. The next year, the bill was revived and again passed the House, but once again died in the Senate.
8. What did the Commission do wrong? It tried to do way too much. The bill was too comprehensive. It was complete reform from top to bottom. There were a number of interesting concepts in the proposal that would have benefited everyone if they had been pulled out as individual recommendations. One was the provision for developments of greater than local concern, similar to the essential public facilities provisions in the GMA. By taking on so much, managed to disaffect everyone. The Commission got terribly top heavy staff-wise. The staff may have dominated the Commission's work more than it should have.
9. The worst part of the current process is that it relies on the adversarial system. He used to believe that was appropriate, but has come to the conclusion that mediation, or other forms of alternative dispute resolution, should be an integral part of the land use decision making process, both at the local government and in the judicial system.

B. Jerry Hillis — Member, State Land Planning Commission

1. A critical part of any reform effort is identifying what problem you are trying to solve. The State Land Planning Commission had a very broad mandate. At the time, over half of the state's jurisdictions did not have comprehensive plans or zoning regulations. The procedures being used by local governments that did have plans and regulations were those adopted by the Legislature in the 1920s. The state was starting to urbanize and planning was becoming more important. However, the procedures were outdated and differed significantly from one jurisdiction to the next. The Commission's goal was to achieve some level of uniformity while providing flexibility and to ensure that comprehensive planning took place throughout the state.
2. The issues faced by the State Land Planning Commission in the 1970s are not all that different than those faced by the Land Use Study Commission. Most significantly, we are still using the 1920s procedures for addressing land use issues. Unfortunately, people are not really interested in procedure and process, but that is what really needs to be examined closely. The Commission should focus on the issues that cause problems on a daily basis. The concern many have with the current system is not with substantive requirements imposed on land development, but rather with how those decisions are arrived at. People want to be treated fairly, they want predictability, and they want a fair process that they can participate in.
3. The Commission should think carefully about how things ought to work. It should not become trapped with the existing processes, because they are outdated and have little relevance.
4. There is a lot of interest in land use issues now. This is different from the 1970s. The bill the State Land Planning Commission came up with ran into trouble in part because there was not a sense that there were significant problems. Because there were parts of the bill that nearly everyone disliked, that was enough to kill the whole bill.
5. The current process does hinder the ability to use mediation.

C. Questions:

1. Tom Campbell: To what extent did the Commission take into account SEPA and the SMA?

   A. SEPA was not thought to be relevant at the time. There was no mention of SEPA in the bill recommended by the Commission. It was not until a few years later that the courts started to interpret SEPA as being applicable to the land use development process. Now, SEPA is perhaps the statute that most affects land use development. It is the issue for nearly every aspect of the land use process.

2. Keith Dearborn: What parts of the Commission's bill might still be relevant?

   A. One part of the bill dealt with process. There is a change of terminology that was important. The process also changed the concept of variances. Processes were made more consistent between cities and counties, that would benefit both developers and the public, and probably local governments as well. There were a number of other improvements in the procedural elements that were useful. Another important element was the process for "developments of greater than local significance." There remains a need to deal with projects that impact more than one local government.

3. Kimberly Ordon: What types of projects were not contemplated to be part of the hearing process?

A. There are a lot of decisions that are more administrative in nature that do not need to be a part of the hearing process. Issues which require policy decisions should be made as part of a public hearing process. Otherwise they should be allowed to proceed through an administrative process without the delays inherent in public hearings.

V. Public Comment

There was no public comment.

VI. Draft Operating Procedures

A. The Chair said she had developed the draft operating procedures based on the procedures used in the British Colombia Forum that the commission heard about at its November 14 meeting.

B. Ms. Ordon asked about III. H. which states that members who fail to advise the Chair of objections are assumed to have given assent about an action item that is discussed at a meeting at which they are absent. She said it might not always be possible to provide advance notice of the member's absence, or there might be substantial changes to the item at the meeting so that the absent member's assent should not be presumed. The chair thought that was a good point.

Mayor Hansen also expressed some concern about this provision. He said he had some general concerns about whether consensus decision-making would really work. He thought that even if he was assumed to have assented to a recommendation, he would still feel that he had the right to go to the legislature and seek an alternative.

The chair suggested that the wording could be changed to state that a member should attempt to let the chair or other members know of the member's concerns about an issue that is on the agenda, but that the member's assent would not be assumed. There was no disagreement with this approach.

C. Mr. Dearborn pointed out that the procedures do not specify how decisions are to be made. He thought some orderly procedure should be established so that everyone knows how and when decisions are made. He thought that generally items should be scheduled for discussion before they are scheduled for decision. Mr. Dunn agreed with these comments.

The chair suggested that the agenda could identify those issues which are for discussion and those which are for decision. Items would first be listed as items for future action. Public comment would be allowed at that meeting and also at the meeting at which action is taken.

D. Mr. Burch asked whether substitute members could be designated. The Chair thought the Commission might need to ask the Attorney General about this. Since the members have been appointed by the Governor, she was uncertain whether they could then appoint another person to act in their place. Mr. Herrick thought alternates would be helpful, because it would be more likely to assure that a member's concerns are always presented during discussion. Mr. Husseman said he initially thought it might be a good idea, but he is concerned that with alternates, the Commission could lose some continuity. If they are allowed, he said they should be the exception.

Mr. Dearborn echoed the concerns of Mr. Husseman. He said Ecology had handled the situation well by having one individual who monitored the Commission's work. This provided the continuity that he thought was important, in an unobtrusive manner. He thought having one individual designated to participate in discussions in a member's absence, without having the right to give the member's assent would provide the right balance. It might also avoid the legal problem of having an alternate making a commitment on behalf of a member.

Mr. Dunn thought that would be a good solution. He said that only one person should be allowed to participate in the discussions. Other members were in agreement.

A member who wishes to designate an alternate will notify the Chair. The Operating Procedures will be modified to include this provision.

Mr. Tommy Prud'homme, Assistant Attorney General assigned to the Commission, said that this issue had come up with another commission with which he had worked and that the approach the Commission had decided on would likely satisfy legal objections. A problem could arise if the Commission were to allow an alternate to "vote" or otherwise make a decision on behalf of a member.

E. Mr. Dunn asked about the intent of the provision in III. B. requiring a member to demonstrate that an item is of such importance to the member that not reaching consensus is justified. The Chair said she interpreted this to mean that members should not hold up consensus for minor or insignificant matters. She said the word "demonstrate" might be too strong. Mr. Dunn said he interpreted this to mean that members needed to tell the other members that an issue of importance and explain why.

Mr. Dearborn suggested that this provision and III. G. were related and should be brought together.

F. Ms. Ordon asked about legislative involvement. The Chair said that she had received two different recommendations. One was to have four additional members appointed as ad hoc members. The other was to invite interested legislators to participate in a "sounding board" or focus group. The Chair said Rep. Appelwick also pointed out that the best legislative response is going to come from recommendations that have the consensus of all the participants. If business and the environmental community come to the legislature with a proposal that they can both agree on, it will have a much better chance of acceptance.

Mayor Hansen said one danger of appointing only friendly legislators to any type of group would be that the Commission would not get diverse points of view. Mr. Dunn suggested that as a starting point, the Commission should invite the legislators who attended the Commission's November 30 meeting.

Mr. Husseman suggested that the Commission could write the leadership and invite them to appoint members to a sounding board. We could mention the members who came to the Commission's meeting as a potential starting point. He thought having legislators on the Commission itself would be less valuable, because they are less likely to be able to attend on a regular basis.

Mr. Moseley suggested that we should consider trying to coordinate with legislative weekend schedules and invite all legislators to come to the discussion. This might get the involvement of some legislators who are not active participants. Mr. Reinert said the Commission could notify all legislators of the sounding board meetings.

The Chair said she sensed the members were in general agreement on the proposal. A revised recommendation will be placed before the Commission at its next meeting for approval.

G. Mr. Husseman asked about the consensus process. He said he agreed that consensus decision making was appropriate. He was uncertain of how we would know when consensus was reached. The Chair said she thought that she could ask whether their were any objections and that if none were raised, she would announce that there was a consensus.

Mr. Dearborn said he did not think that the consensus process should be used for every decision. Mayor Hansen expressed some doubts about the ability to reach consensus on every issue. He thought that on some important issues the Commission might not be able to make a recommendation if consensus were required. Mr. Dearborn said the draft procedures do offer a way of moving issues forward in cases when there is no consensus. The Commission could in those cases present the alternatives to the Governor and the Legislature without recommendation.

H. Mr. Roseberry said that an important element of reaching consensus required members to be sensitive to the realities of what is happening in their constituency groups. Members must be able to say that a proposal is acceptable to their constituency groups.

I. Mr. Dearborn said he was still unclear on what items the Commission would be attempting to reach consensus. This could range from developing a consensus on individual elements within a set of recommendations or to addressing the package as a whole. The Chair said there would likely be a sorting out process. Mr. Dearborn thought the real value of a Commission recommendation would be on the overall package, not on the individual items.

Mr. Husseman agreed. In working towards a final proposal, each member may make concessions on one part of the package because of some benefits in another.

Mr. Dunn said he thought the Commission needed some mechanism to allow troublesome issues to be postponed in order to make it easier to reach consensus at a later date.

J. The Chair said she would work with staff and provide a revised draft for the Commission's consideration at its next meeting.

K. Advisory Committees.

Mr. Dunn suggested two different approaches to creating advisory committees. One would be to limit membership to invited participants. The other would be to allow anyone who is interested to participate. The Chair asked how people would be notified of the meetings under the second alternative.

Mr. Reinert said the Regulatory Reform Task Force had used a hybrid approach. A diverse group of participants were invited to serve on the subcommittee, but anyone who attended the meeting was welcome to participate in the discussion.

Mr. Husseman thought as open a process as possible was a good idea. He thought it would be important to make sure that the diverse viewpoints on a particular issue were represented.

Mr. Dearborn asked how the committees would report to the Commission. Would the Commission members serving on a subcommittee decide what to accept in the way of a recommendation, or would the Committee's recommendation be presented to the Commission. He said that it was important to ensure that participants in the advisory committee process know that their opinions would be looked at by the Commission without screening.

The Chair noted that the draft operating procedures would have the advisory committees making recommendations to the Commission.

After further discussion, the Commission agreed to leave the statement about the advisory committees as proposed in the draft operating procedures. The Chair of each advisory committee will report to the Commission on the suggested membership, what outreach it intends to do, and the dates it expects to make its reports. The Chair of each advisory committee will also make monthly status reports to the Commission.

Mr. Husseman suggested that the chair of the advisory committees should present the suggested membership to the Commission for its review. The Commission members will then be able to suggest additional representation that might be appropriate and be more likely to have confidence in the group that will be making a report.

The Commission accepted this suggestion.

VII. Organization Chart

A. Mr. Burch introduced Rick Smith, staff with the Department of Transportation. Mr. Burch said that DOT was attempting to organize related tasks of the Commission into a limited number of subcommittees.

B. Mr. Smith handed out a proposed organization chart that broke the Commission's workload into four types of tasks: funding; review, monitoring, and information gathering; professional certification; and policy development and making recommendations. The chart proposed establishing three subcommittees that would make recommendations to the full Commission. A fourth subcommittee would be responsible for drafting.

C. The Chair said she saw the value of the proposal as helping the Commission organize its workload so that it will be able to make its recommendations in November, 1997.

D. Ms. Ordon asked how public comment would fit into the proposal. Mr. Smith said he assumed that public comment would be an integral part of each of the subcommittees and the Commission's decision making. Ms. Ordon said this should be made clear to assure the public that they were part of the process.

E. Mr. Moseley suggested that the Commission needed to be inserted between the subcommittees and the suggested revisions subcommittee. Other members agreed.

F. A revised organizational chart will be presented to the Commission at its next meeting.

VIII. Open Public Meetings Act and Public Disclosure Act

Chip Holcomb, Attorney General's Office.

A. Open Public Meetings Act

1. The starting point for understanding both statutes is to look at the intent section of the open meetings act. The fundamental purpose of the Act is to allow the public to monitor what public officials are doing. Neither statute provides a means for participation.
2. What is a meeting? A meeting occurs when a governing body takes action. Proper notice must be given prior to taking action. Failure to give notice makes any action taken at a meeting void. Another consequence is the loss of credibility, which may be impossible to recover. Finally, if there is a successful suit challenging a violation of the act, the agency may be liable for reasonable attorneys fees.
3. State agencies must give notice of regular meetings in the state register for the year. Any business, whether or not included in an agenda, may be conducted at a regular meeting.
4. Other meetings are known as special meetings. All members of the governing body must be given 24 hours notice of a special meeting. In addition, any media representatives that have requested notice of special meetings must also be given 24 hours advance notice. Special meetings are limited to the agenda, or the subjects, that are disclosed in the notice.
5. Action is broadly defined in the statute. It includes discussion, deliberation, review, and evaluation. If a majority of a governing body is present and is discussing, deliberating, or evaluating the business of the body, a meeting is technically taking place, even if it is at a social event.

B. Public Records and the Public Disclosure Act

1. It is essential to remember that everything a state agency records is a public record. This includes tape recordings, photographs, notes, and memoranda. Everything that is a public record is theoretically accessible by the public.
2. There are a number of exemptions to the need to disclose records. Unless there is a specific exemption, however, records must be disclosed. If a record can be disclosed to one individual, it can be disclosed to any person or entity.
3. There are two fundamental rationale for refusing to disclose a record. One is the right to privacy and the other is impairment of a vital governmental function. A police investigation is an example of a vital governmental function. The right of privacy recognized in the statute is less extensive than people might think. Only records the disclosure of which a reasonable person would find highly offensive and of no legitimate interest to the public may be withheld. This provides much less protection than the federal comparable statute.

C. Questions

1. Is the commission required to adopt rules on disclosure of public records? Yes. And state agencies are also required to adopt their schedule of regular meetings by rule. If the Commission has to adopt rules, how does that fit in with the consensus process the Commission is working towards? This is an issue that the Commission should discuss with its Assistant Attorney General.
2. The Commission is developing a document management system and will be creating an indexing system for those records. Is this a public record? Yes.
3. If the Commission establishes subcommittees, how are they affected by the open meetings act? A committee which acts on behalf of the governing body is deemed to be a governing body and is subject to the open meetings act. Compliance with the act is not too difficult, since all that is required is setting a schedule of regular meetings, or providing appropriate notice of special meetings. It would be best that have standing committees comply with the act, just to avoid any potential arguments down the road.
4. What are the requirements for retaining records. This is a responsibility of the Secretary of State's office and the state archivist. There are requirements for adopting records retention procedures.
5. Can the Commission allow a person who submits information to request that it remain confidential? No. The Public Disclosure Act controls the release of information and an agency cannot promise confidentiality that the statute does not provide.

IX. Document Management.

A. Mr. Reinert reported that the Bogle & Gates is assisting the Commission in creating a document management system. One key element of the system is the indexing categories. In the near future, the staff will be asking the Commission members to review a list of suggested index topics and suggest any additions they would like to include.

B. Mr. Dearborn asked what type of access the public would have to the information. Mr. Reinert said that the index, and many of the Commission's documents, might be accessible through an internet connection.

X. Workplan Discussion

A. Kathy Dietrich -- Use of Certified Professionals

1. Ms. Dietrich handed out a proposed workplan for examining the use of professionals to certify compliance with state and local requirements. She said there is a lot of interest in the issue and that there are a variety of viewpoints on its appropriateness.
2. In answer to a question, Ms. Dietrich said an advisory committee should be created. The task is a discrete one that can be dealt with separately from other Commission tasks. The draft workplan identified a number of groups that should be included on the advisory committee.
3. Mr. Dearborn asked whether a legal analysis of state and local governments' authority to delegate this authority would be necessary. Ms. Dietrich said it would. She said also said liability would be an issue that will need to be resolved.
4. Mr. Dearborn said that although this was a discrete task, it was still an important one that the Commission could begin work on independently of its other efforts. He thought the ability to use professionals in this capacity will be critical to local governments if they are going to meet the 120 day permit timelines. He said this would also give the Commission an opportunity to test out its consensus process.
5. The Commission decided to establish an advisory committee to deal with the certification issue. Ms. Dietrich, Mr. Herrick, and Mr. Burch volunteered to serve on the advisory committee. The Chair asked Ms. Dietrich to serve as chair. The proposed membership of the advisory committee will presented to the Commission at its next meeting.
6. Ms. Ordon mentioned that the Forest Practices Board had used a professional certification program to certify teams that looked at proposed timber sales. The program did not rely solely on those with professional credentials, but also considered individuals who had appropriate experience.
7. Mr. Dearborn said that the counties and cities should be consulted, with special attention to the different needs of small and large cities and counties. He also pointed out that if this is going to be a recommendation for next session, the first report will need to be made in the summer.

B. Ryan Durkan — Monitoring of Consolidation Efforts

1. The Chair handed out a draft workplan to address the task of monitoring consolidation efforts. Mr. Dearborn said that King County staff had said that it would be later this year before there would be any information on which to even begin evaluating its new system.
2. Mr. Burch noted that this task was related to the task that he had been working on —monitoring the permit processes. One important element of that task is developing a baseline against which to measure performance. He said he was not sure that an advisory committee was in order. Mr. Moseley said he thought an advisory committee was appropriate. Local governments will be struggling to comply with HB 1724 and any assistance that can be provided to them will be helpful. He offered to serve on the advisory committee. Mr. Dearborn said he would also be willing to serve on that committee.
3. The Chair noted that some elements of the monitoring task were more open ended and dealt with larger issues. Others were quite specific, such as the permit monitoring issue. She did not think they belonged in the same review process. Mr. Dearborn agreed. He thought this advisory commission should limit itself to establishing the monitoring process for the 120 day permit requirement. The Chair asked whether the group could look at the broader permit process issues.
4. Commissioner Best noted that several of these committees may be asking for information from local governments. He said there should be some effort to avoid sending out multiple questionnaires to local governments.
5. Mr. Dearborn asked for clarification of what the subcommittee would be looking at. He suggested that the group should limit itself to the permit timelines issue now and take on other issues later. Mr. Dunn thought that the vesting issue would involve a similar inquiry of local governments and could also be included. He said he should also be on the subcommittee if it dealt with vesting. The Chair said she thought it made some sense to take the questions of coordinated permit processes, vesting, and timelines together. Mr. Burch said he would try to call the first meeting. There will be an action item to hear back from the advisory committee at the next meeting.
6. The Chair said that as part of her workplan she thought there might be an early effort at consolidating one set of statutes, such as those applying to planning. There are a number of different statutes governing planning by both general purpose and special purpose governments. Those statutes do not have consistent requirements. Significant improvements could be made here without having to make any substantive policy changes. A similar effort might also work on addressing some of the permit systems. She hoped that by summer the Commission might focus on its first set of statutes that it would attempt to consolidate. The question then was whether an advisory committee to address the consolidation effort should be established now. She thought it might be a good idea. Mr. Dunn asked whether this was so central to the Commission's work that that it really needs to be considered by the whole Commission. Mr. Dearborn thought there was a need to get some vision of where the commission thought it wanted to end up.
7. Mr. Dunn said that one thing the Commission should spend some time on at a later meeting is what additional information it would need so that it could start the process.
8. Ms. Ordon suggested that the workplan should include a specific recognition of the need to protect environmental quality as well as improve the permit process. She also suggested that the tribal governments should be included on the list of groups to be consulted.
9. Mr. Dunn and Mr. Dearborn said they would work with the Chair to more fully develop this item for the next meeting.

C. Draft Criteria for Evaluating Recommendations -- Mr. Dearborn asked that the Commission review the draft criteria it discussed at its November 30 meeting. He said this was integral to the Commission's work. There was agreement that the criteria should be circulated and that the Commission should ask for comment.

XI. Draft HB 1724 Housekeeping Amendments

A. Mr. Reinert reviewed a draft of housekeeping amendments to HB 1724. He noted that the proposed amendments resulted from comments received by a number of individuals involved in developing HB 1724. The amendments are intended to be housekeeping in nature. He noted that the Commission had just received a letter from Ann Aagard with some comments on the changes to the notice provisions in SMA.

B. Mr. Dearborn asked about an amendment to RCW 36.70C.120 that would allow a deposition of a petitioner for the purposes of determining standing. He suggested that this type of procedure could result in harassment of petitioners. He thought it likely this provision would prove to be controversial. Mr. Dunn agreed.

C. After further discussion, the Commission decided not to endorse the legislation, but did agree that the proposed amendments should be forwarded to the Legislature for its consideration. The Commission concluded it did not have sufficient time to review the recommendations in order to feel comfortable sponsoring them.

XII. Adjournment

A. The Chair asked members to suggest any ideas for sounding boards by the next meeting.

B. The meeting adjourned at 4:30 p.m.