Appeals and Judicial Review

Chapter 11
Appeals and Judicial Review

The purposes served by allowing an appeal of a local land use or environmental decision are viewed differently by different interests. This has led to different views of the appropriate appellate procedure and the standards that should apply during administrative and judicial review. The basic issue to be resolved on appeal is whether the decision maker has followed the law. For some, this is largely a procedural question that does not involve an examination of the substance of the decision. For others, the question of whether the law was followed also requires an examination of whether the decision is consistent with state policy, as established by the Legislature and agency rules.

Washington's land use and environmental system provides a variety of appeal procedures and review bodies. The procedure that applies to the appeal of land use and environmental decisions depends on the subject matter of the decision as well as the decision maker. In some instances, a decision can result in parallel appeals being heard by two different appellate bodies.

Background

Decisions implementing state land use and environmental laws are subject to a variety of review mechanisms. Most local government land use decisions are appealable to superior court under the Land Use Petition Act. This legislation was adopted in 1995 and combined the different appeal procedures applicable to permits into a single statute and eliminated common law procedures as the chief review mechanism.¹⁴ State agency actions are generally subject to judicial review by superior court under the Administrative Procedures Act, RCW Chapter 34.05.

Under some circumstances, prior to judicial review, a quasi-judicial state board may have review authority over the actions of a state agency or a local government. There are five separate quasi-judicial boards with authority to review land use and environmental decisions of state agencies and local governments.¹⁵ Decisions of the quasi-judicial appeals boards may be appealed to superior court, or in appropriate circumstances, to the Court of Appeals.

In some appeals of a local government decision on a project permit application, there is the potential that two different appeal bodies will have jurisdiction over different aspects of the project. The appeal of a project constructed within the shorelines that requires a shoreline substantial development could potentially be appealed to both the Shoreline Hearings Board and superior court. As a result, the parties may be required to present similar testimony and evidence in both forums. The SHB decision, once made, may also be appealed to superior court.

There are also differences in the appeal procedures depending on the forum. Superior court review is usually based on the record created by the local government or state agency. Under the SMA, the appeal of a shoreline substantial permit is heard de novo by the SHB. This means the SHB conducts fact-finding hearings and bases its decision on the record it creates rather than the record before the local government.

The standard of review on appeal varies depending on the nature of the issue. The APA provides that a state agency decision will be upheld unless the agency acted in an arbitrary or capricious manner. Most local government land use decisions are appealed pursuant to the Land Use Petition Act (LUPA) which provides for a substantial evidence standard. Under the GMA, a local government's decisions relating to its comprehensive plan and development regulations are presumed valid upon adoption and must be upheld unless the GMHB determines the local government's actions were clearly erroneous.

Another difference among the different boards is the types of actions over which they have jurisdiction. The Growth Management Hearings Boards only have jurisdiction to review legislative decisions of local governments. They cannot review individual project permit decisions. The Shoreline Hearings Board has authority over both legislative actions and permit decisions. In addition to shoreline permits, it hears appeals of shoreline master programs for non-GMA jurisdictions and of Ecology's rules implementing the SMA.

The Pollution Control Hearings Board's jurisdiction is largely limited to review of Ecology actions in adopting rules, issuing permits, or imposing penalties or other sanctions. It does have authority to hear appeals of penalties imposed by the regional air pollution control authorities.

Most of the quasi-judicial boards are required to have members who are representative of the different political parties and who have expertise in the subject matter. Board members are not generally required to be attorneys, although most boards are required to have at least one attorney member.

The boards generally do not have authority to review constitutional issues.

In 1997, the Legislature changed some of the procedural standards that apply to Growth Management Hearing Board review of city and county GMA decisions. The changes were intended in part to give local government decisions greater weight on an appeal before the GMHBs.

Discussion

The role of quasi-judicial boards in Washington's land use and environmental system has received considerable attention in the last few years. Quasi-judicial boards are created for a variety of reasons. Their proceedings are often less formal and more accessible to those not represented by attorneys. The boards can provide level of land use or environmental expertise that some believe is more difficult to achieve in the judicial system. A quasi-judicial system also can provide some degree of state-wide consistency. An another advantage that proponents of quasi-judicial review see is that it brings the perspective of non-lawyers into the review process.

A common objection to the quasi-judicial boards is that they place appointed state officials in the position of reviewing, and in some cases overturning, decisions of locally elected officials. Under the GMA process, this is thought to undermine one of the principle elements of the GMA, which is the local control it gives to counties and cities. There are also objections raised that the quasi-judicial boards substitute their judgment for that of the local legislative body, rather than limit their review to legal issues. An appeal to court is felt to be preferable because the judges are directly accountable to the public through the election process. Courts are thought to be more experienced in applying the law and more familiar with separation of powers issues. There is also a concern that the quasi-judicial process is often an extra step in the review process that only adds time and cost.

The review procedure for shoreline substantial development permits presents an additional issue. Shoreline permits are heard de novo by the SHB. Local governments and developers frequently believe that this procedure causes unnecessary delay and allows opponents to withhold information and objections until the SHB hearing, rather than presenting all of the information at the local government hearing. They also point out that the process can result in two different review proceedings on the same project, one before the SHB and the other in superior court, with many of the same issues and evidence before both bodies. The SHB decision is then also appealable to superior court. Reform advocates question the SHB's cost effectiveness given the small number of local government permit decisions overturned by the board.

Proponents of the current SHB process believe that the shorelines are a fragile and unique resource that require special attention and protection. They point out that many local government's have hearing procedures that do not meet the test of basic due process and fairness. The environmental community and state agencies point out that there is little evidence that duplication of proceedings is a serious problem. They note that only a small percentage of shoreline permits are appealed to the SHB and that only a portion of those permits end up in a hearing before the board. They also see de novo review as a means to assure that decisions affecting the shorelines are made based on scientific evidence and that the state-wide interest is not dismissed in favor of the more limited local interest. State agencies and the tribes also note that they have limited resources that make it difficult to keep abreast of and participate in every local permit process involving the shorelines. The tribes also note that with limited resources, they need to present their case in a forum where they believe they are more likely to receive procedural due process. The de novo review procedure provides a mechanism to assure that in those cases where it is necessary, additional evidence can be provided.

Options

Status Quo

Retain the current process with appeals going to one of the existing hearings boards or superior court, depending on the issue.

Pros:

The environmental community and state agencies note that the majority of local land use decisions do not result in any appeals. They suggest that legitimate concerns about duplicate processes can be dealt with in other ways. They do not believe there is a need to change the underlying structure of the boards.

Proponents of the status quo note that each of the existing hearings boards has expertise in its subject matter. They believe that eliminating or combining the boards will result in a loss of both historical perspective and consistency of application.

State agencies and environmental organizations argue that the boards are important in ensuring that local concerns and desires do not override statewide interests.

Cons:

Opponents of the status quo argue that even if the actual number of cases appealed is small, the threat of becoming mired in the appeals process may cause a project applicant to accept conditions that could not be mandated.
Some favoring changes argue that the current process can be used by a party to either prolong a final decision as a way to try to kill a project or to wear out an opponent.
Some local governments and rural landowners believe the current process involves state boards in reviewing decisions that should be left to local discretion. They see this as an inappropriate intrusion of the state into local processes.

Eliminate SHB de novo Review For Some Decisions

Minimum procedural standards would be established for local government hearings on project permits. The standards would need to include provisions for notice to the public and state agencies and tribes with an interest in the subject matter of the permit. The standards would also address the conduct of the proceedings, including the applicable rules of evidence, preparation of the record, and the use of and experience of hearing examiners. If a local government adopts hearing procedures meeting these standards, its shoreline permit decisions made pursuant to those procedures would be heard by the SHB on the record made by the local government. The SHB could take additional evidence upon a showing that the evidence was unavailable or for other reasons supporting opening of the record.

Pros:

Some local governments argue that this option will provide a means to ensure that local governments are presented with all of the evidence to make an informed decision.
Some believe that this change will discourage parties from "hiding in the weeds" and waiting until an appeal to present their best evidence.
Proponents argue that this proposal provides an opportunity both to ensure protection of the state interest and to streamline the appeal process.

Cons:

Some in the environmental community argue that this approach will create two different appeal systems and create confusion. They suggest it is better to have one appeal system for all jurisdictions.
State agencies and the tribes point out that they do not have the resources to participate in all of the local government hearings that this proposal would require. They believe the likely result will be further degradation of the state's shorelines.
Some in the environmental community are concerned about the SHB losing the ability to make factual findings. They believe this may reduce environmental protection.

Unified Hearings Board

The existing hearings boards would be combined into a single hearings board. Appeals of the board's decisions would be filed in the Court of Appeals, bypassing 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.

Pros:

Some in the business community believe the GMHBs will see a declining caseload in the next few years, calling into question the need for three full time boards.
Proponents point out that a board with jurisdiction over all related land use issues would be able to resolve those issues in a single proceeding. They believe this would help in resolving inconsistencies in application of different statutes.
Some have suggested that if the board were established with regional panels, the ability to provide for regional flexibility in the implementation of the different environmental statutes would be increased.
Proponents argue that a unified board would provide a way to ensure that interests of other jurisdictions and the public are appropriately considered.

Cons:

Advocates for local control are concerned that the proposal will expand state control at the expense of local authority.
Some in the business community argue that the proposal does not eliminate any steps in the review process. They believe it only substitutes the hearings board for superior court.

State Land Use Court

Appeals of land use decisions would be filed with a state land use court. There are three ways in which the court could be established. The first option would be to establish the land use court as an inferior court to superior court, similar to the relationship between district court and superior court. This could be done by statute.

A second option 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. For example, the juvenile courts are established by statute. However this would not provide for any state-wide consistency. If the land use court were established statewide at the superior court level, a constitutional amendment would probably be necessary.

A third option would be to either create a new division of the court of appeals or have the court of appeals establish a special panel to hear land use cases. The first alternative could be accomplished by statute, since the constitution gives the Legislature considerable flexibility in establishing the jurisdiction and structure of the Court of Appeals. The second alternative could be accomplished by statute or by court rule.

Pros:

Proponents note that a land use court would have the authority to decide all issues, including constitutional questions. They also suggest that the members of the court would develop expertise in land use and environmental law.
Proponents suggest that if the court were established on a regional or statewide level, matters of statewide concern would be more likely to receive appropriate consideration and there would be greater consistency of application of state laws across the state.
Those who favor the court of appeals option note that this would eliminate one step in the appeal process.

Cons:

Some people believe that creating a new court would add to an already complex judicial system.
Some have suggested that, unless the court is established at the Court of Appeals level, there would not be any significant improvement in the overall process. They believe there would only be a substitution of one forum - superior court or the hearings board - for another - the new land use court.

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.

Pros:

Proponents of this option note that it would provide a forum where all questions, including constitutional issues, could be resolved in a single proceeding.
Some favor the proposal because it relies on elected judicial officers to review the decisions of other elected officials. They also believe it allows decisions to be made locally, at less cost to the parties. They note that it relies on an established process, with rules and procedures that are well understood.

Cons:

Some people argue that the proposal will require knowledge of land use and environmental laws that few superior court judges have. They acknowledge that access to special masters may help, but do not believe this removes the underlying problem of a lack of land use and environmental law expertise on the part of some judges.
Some in the neighborhood and environmental communities express the concern that local superior courts will reflect the interests of the local elected officials and that issues involving statewide interests may not be given appropriate consideration. They express concern that county legislative authority over the superior court's budget may create an appearance of a conflict of interest.
Environmental and public interest groups argue that judicial proceedings will be more formal and intimidating to citizens who cannot afford legal counsel.

Court of Appeals

Under this option, appeals of land use decisions would be filed directly with the Court of Appeals.

Pros:

Proponents of this option note that it relies on existing judicial mechanisms. They note that it does not require a new court or hearing board and that the only added cost might be the need for additional judges. They suggest some of this cost may be offset by a reduced workload in the superior courts and hearings boards.
Some people have noted that the Courts of Appeals judges have access to law clerks and other resources helpful in reviewing and analyzing cases. These are resources not always available to the hearings boards or to superior court judges.

Cons:

Some with concerns about this option note that a case before the Court of Appeals can take from one year to 18 months, including time for briefings, oral argument, and written decision. They point out that most superior courts and hearings boards often issue their decisions more quickly.
Some have noted that land use appeals, particularly those involving projects, may require fact-finding hearings. They note that fact-finding is not something the Courts of Appeal are set up to easily handle.

Sunset Growth Management Hearings Boards

The GMHBs would be phased out over six years and their jurisdiction to hear appeals of amendments to comprehensive plans or development regulations would be eliminated. Appeals of amendments would be heard by superior court. The boards would have jurisdiction over adoption of a new comprehensive plan or development regulations and over pending cases. In 2000, the three boards would be consolidated into a single six-person board, which would function in two, three-member panels. In 2002, the number of members would be reduced to three. In 2004, the board would sunset and all future GMA appeals would be heard by superior court.

Pros:

Proponents note that the majority of local government actions during the first round of planning under the GMA is nearing completion. They believe that the number of appeals to the boards will decline in the near future and that the cases before the boards will tend to involve site specific issues and will involve fewer broad public policy issues. They argue that these types of cases are more appropriately handled by the judicial system.

Cons:

Opponents of this option argue that there will continue to be important public policy issues involving the implementation of GMA. They believe the expertise provided by the boards will be an important tool for resolving these issues.
Some in the environmental community do not believe board case loads will decline. They point out that the need to address ESA and other environmental and growth management issues will result in GMA plan amendments and probably result in more appeals.
Some have suggested that the controversy over the GMHBs has been largely due to ambiguity and uncertainty over the implementation of the GMA. They do not believe there any inherent problems with the boards or the quasi-judicial review process justifying elimination of the boards.

Recommendations

Although nearly all parties agree that the current system for review of land use and environmental decisions is not perfect, there is no consensus to support any major changes to the land use and environmental appeals process at this time.

There is speculation that GMA appeals will diminish over time, however the Growth Management Hearings Boards currently have an adequate work load. The Commission's recommendation is to maintain the status quo for the time being, while giving further study to the alternatives and the issues that divide the constituents who care deeply about this issue.

Some of the issues on which there are significant divisions include:

The environmental community, neighborhood groups, and tribes believe that the existing layers of appeals serve as an added element of environmental protection. They argue that the current appeal system works well and that there is no evidence showing any significant problems. They point out that many of the environmental statutes address matters that are of state-wide concern and that the appeal process needs to assure that those state-wide interests are protected. At a time when salmon recovery is a concern, they advocate that this is not the time to tinker with the Shoreline Hearings Board. They also cite to the expertise of the Shoreline Hearings Board and the Growth Management Hearings Boards in environmental and land use matters. They also prefer administrative boards because such forums are more accessible to non-lawyers. Some neighborhood groups view state or regional administrative boards as more independent of local elected officials than superior court. Environmental groups object to one provision added in 1995 that provides for an award of attorneys' fees to the prevailing party in cases on appeal to the Court of Appeals. If the plaintiff has not prevailed before the local government or the superior court and loses at the Court of Appeals, reasonable attorney's fees can be imposed against the plaintiff. They believe the potential for an award of attorneys' fees acts as a disincentive for the filing of legitimate actions.

The business community cites to duplicative and inconsistent appeals statutes that can result in one project being appealed to different forums. They cite to the cost of de novo review, where local government proceedings on shoreline permits become meaningless if appealed to the Shoreline Hearings Board. They express concern with the Growth Management Hearings Board substituting its judgment for that of local elected officials and believe that superior courts have more experience in respecting the separation of powers.

Local governments express frustration with the shoreline permitting process where new information and evidence may be produced at the de novo hearing, without giving local elected officials the right to review the new evidence. They would prefer an option that would provide for a hearing on the local government record if the local government conducts the hearing consistent with minimal standards for the conduct of administrative hearings. Local governments also referred to the "stove-piping" of issues that can occur under the current system, where shoreline and upland impacts are reviewed in two different systems, when GMA was directed at an integrated approach. Some local governments also expressed frustration with having an appointed board overturning the decision of local elected officials.

State agencies had differing views. WSDOT spoke in favor of the status quo. Ecology and DNR agreed that in the perfect world, they would be able to present their concerns to local officials first. The current shoreline permit system allows state agencies to wait and raise their concerns for the first time in an appeal to the Shorelines Hearings Board. Although they recognize the potential for unfairness and inefficiency in such a system, it is a personnel resource issue. At present, they do not have the staff or other resources to stay informed and participate in all local projects. Even if the agency is notified of a project, it is not always adequately funded to participate in the local permit review process. The tribes have similar personnel resource issues.

Some rural land owners believe that the Growth Management Hearings Boards have too much authority. They see the judicial system as the forum to correct the problems created by the boards. These rural land owners believe that judicial review combined with governor sanctions are the best tools to ensure that counties and cities are complying with the GMA. They believe that this system will also honor the GMA's promise of local control.

The Commission's agricultural representative from Eastern Washington noted the importance of geographic diversity of the decision makers participating in the appeals process. He felt it was important to maintain that diversity in any appeal process.

¹⁴ RCW 36.70C.
¹⁵ These include the Pollution Control Hearings Board, Shoreline Hearings Board, Forest Practices Appeals Board, Hydraulics Appeals Board, and the Growth Management Hearings Boards.

Land Use Study Commission Final Report
December 1998