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Home My WebLink About07-13-16 YPC Packet11 O T H E, t1;,: OR.D / F1 ui wl ,, AWAV ■DEPARTMENT OF COMMUNITY DEVELOPMENT ° "^ planning I.)ivision Joan Davenport, AICP, Director ciry of YAmingKi g 129 North Second Street, 2nd Floor, Yakima, WA 98901 P ar ask.planning@yakimawa.gov - www.yakimawa.gov/services/planning City of Yakima Planning Commission STUDY SESSION City Hall Council Chambers Wednesday July 13, 2016 3:00 p.m. - 5:00 p.m. YPC Members: Chairman Scott Clark, Vice -Chair Patricia Byers, Al Rose, Bill Cook, Peter Marinace, Gavin Keefe, Tom Trepanier Council Liaison: Mayor Avina Gutierrez 1ky Planning Staff: Joan Davenport (Community Development Director/Planning Manager); Jeff Peters (Supervising Planner); Valerie Smith (Senior Planner); Trevor Martin (Associate Planner); Eric Crowell (Assistant Planner); Rosalinda Ibarra (Administrative Assistant); and Lisa Maxey (Department Assistant) , Agenda I. Call to Order II. Roll Call III. New YPC Member Introduction IV. Staff Announcements V. Audience Participation VI. Approval of Meeting Minutes of June 16, 2016 and June 20, 2016 VII. Open Public Meetings Act Training VIII. Other Business IX. Adjourn Next Meeting: July 27, 2016 YAW. 11 II' Mit„ 201; 11994 City of Yakima Planning Commission (YPC) City Hall Council Chambers Meeting Minutes of July 13, 2016 Call to Order Chairman Scott Clark called the meeting to order at 3:00 p.m. Roll Call YPC Members Present: Chairman Scott Clark, Vice -Chair Patricia Byers, Al Rose, Bill Cook, Gavin Keefe, Peter Marinace YPC Members Absent: Tom Trepanier (excused) Staff Present: Sara Watkins, Senior Assistant City Attorney; Trevor Martin, Associate Planner; Lisa Maxey, Department Assistant; Valerie Smith, Senior Planner Others: Sign -in sheet in file New YPC Member Introduction Chairman Clark pointed out that Tom Trepanier, the new member of the Commission, was not in attendance at this meeting so the Commission will welcome him at the next meeting. Staff Announcements Associate Planner Trevor Martin announced that a map is being created to illustrate the locations of parcels being examined in the Request for Consideration packets submitted to the Planning Division for the Comprehensive Plan Update 2040. Audience Participation None noted. Approval -of Meeting Minutes of June 1611, and une 2001201.6 Commissioner Byers moved to approve the meeting minutes of June 16t" and June 20t", 2016. The motion was seconded and carried unanimously. Open Public Meetings, Act Trainin Trevor Martin explained the difference between quasi-judicial Jland use actions and legislative land use actions. Sara Watkins, Senior Assistant City Attorney, covered key items to remember regarding the Open Public Meetings Act and Public Records Act, emphasizing the importance of management of emails between Commission members and the gathering of Commission members in one location. Martin went over the difference between a study session and a public hearing, as well as procedural tips and regulations for the Commissioners to keep in mind while taking testimony at public hearings. Martin briefly described the subdivision procedures per the Yakima Municipal Code. Other Business Senior Planner Valerie Smith announced that she is taking a job at the Washington State Department of Commerce. She added that Joan Davenport, Planning Manager, will be taking over as project manager for the Comprehensive Plan Update 2040 until the Senior Planner position is filled. Smith announced that the next workshop with the consultants for the plan update will be on July 27th, in which they will focus on the land use chapter and also review the 16 Request for Consideration packets that were submitted. She included that the Commission will review additional chapters of the Comprehensive Plan in September. The final public review, when the draft plan will be made available online to the public, will happen in October. Staff will work to schedule a joint Planning Commission and City Council meeting in November where the final draft of the plan will be presented. Ate. A motion to adjourn to July 27, 2016 was passed with unanimous vote. This meeting adjourned at 3:34 p.m. Chairman Scott Clark Date This meeting was filmed by YPAC. Minutes for this meeting submitted by: Lisa Maxey, Department Assistant II -2- .� .u"h V�.... : I T 4'. Y.�i I M� h 4: q m! C "� hA K IMA PICanningS��N .�N S EE i � City of Yakima Planning Commission City Hall Council Chambers Wednesday July 13, 2016 Beginning at 3:00 p.m. Study Session *PLEASE WRITE LEGIBLY' I= Owl IM, , =0 ',,Now, .,',�, .......... ...... ...... ...... ........... . . .......... - ------------------------------------------------------ - - --------- . ................. ... . ........... .....�......... ...... .................._................�............w Pagel.�. 07/13/2016 YPC Meeting... M"ORD I FILE CITY OF YAKIMA PLANNING COMMISSION July 13, 2016 OPEN PUBLIC MEETINGS ACT - Resources and Information - 1. Department of Commerce — Short Course Video Study Guide 2. M RSC —Public Hearings 3. MRSC - OPMA - Notice Requirements: Practice Tips 4. M RSC - OPMA - Agency Obligations: Practice Tips 5. WA State Office of the Attorney General - OPMA 1� 7/13/2016 Chapter 31 Washington State f"11i� u1 u1 I III r, 1111111 t "1'11111 / 1'11.111E, iBienvenido! (/en-espanol) VAP (/welcome-chinese) #LrP (/welcome-traditional-chinese) Washington State (l) Office of the Attorney General Attorney General Bob Ferguson (/) Home (/) I Office Information (/office -information) I Open Government (/Open -Government) I Open Government Resource Manual (/Open -Government -Internet -Manual) I Chapter 3 CHAPTER 3 Chapter 3 OPEN PUBLIC MEETINGS ACT Chapter last revised: October 1, 2015 3.1 Introduction The Open Public Meetings Act ("OPMA"), chapter 42.30 RCW (http://apps.leg.wa.gov/RCW/default.aspx? cite=42.30), was passed by the Legislature in 1971 as a part of a nationwide effort to make government affairs more open, accessible and responsive. It was modeled on a California law known as the "Brown Act" and a similar Florida statute. The OPMA and the Public Records Act (PRA), chapter 42.56 RCW (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56), create important and powerful tools enabling the people to inform themselves about their government, both state and local. 3.2 The Courts Will Interpret the OPMA to Accomplish Its Stated Intent As with all laws, the courts will interpret the OPMA to accomplish the Legislature's intent. RCW 42.30.010 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.010) declares the OPMA's purpose in a strongly worded statement. The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The OPMA also provides that, "The purposes of this chapter are hereby declared remedial and shall be liberally construed." RCW 42.30.910 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.910). As such, exceptions to the openness requirements of the OPMA (such as the grounds for executive sessions) are narrowly construed. Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999). 3.3 What Entities are Subject to the OPMA? http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 1/20 7/13/2016 A. "Public Agency" Chapter 31 Washington State The OPMA requires that meetings of the "governing body" of a "public agency" be open to the public. RCW 42.30.030 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.030). A "public agency" is defined for purposes of the OPMA in RCW 42.30.020 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(1) to include: • Any state board, commission, committee, department, educational institution, or other state agency that is created by statute; • Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state; • Any "subagency" of a public agency that is created by statute, ordinance, or other legislative act, such as planning commissions and library or park boards. A "public agency" for purposes of the OPMA does not include: • Any court; • The Legislature. RCW 42.30.020 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(1)(a). B. "Subagencies" In addition to applying to the governing bodies of state and local government agencies as identified in RCW 42.30.020 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.020) above, the OPMA applies also to the governing bodies of any "subagency" of such state and local government agencies. Although a "subagency" is not defined in the OPMA, a subagency must be "created by a statute, ordinance, or other legislative act." RCW 42.30.020 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(1)(c). Case law and attorney general opinions suggest that, to be a subagency, the entity established by legislative act must have some policy or rule making authority. See Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now (http://courts.mrsc.org/mc/courts/zappellate/119wnapp/119wnappO665.htm) (2004); 1983 Att'y Gen. Op. No. 1 (http://www.atg.wa.gov/ago-opinions/applicability-open-public-meetings-act-services-and-activities- fees-committee); 1971 Att'y Gen. Op. No. 33 (http://www.atg.wa.gov/ago-opinions/meetings-public- applicability-open-public-meetings-act-state-and-local-governmental). C. Other Entities The courts have interpreted the OPMA to apply to "an association or organization created by or pursuant to statute which serves a statewide public function." West v. Wash. Ass'n of Cnty. Officials (http://courts.mrsc.org/mc/courts/zappellate/162wnapp/162wnapp012O.htm) (2011). The OPMA may also apply to the "functional equivalent" of a public agency, though the courts have yet to address that issue squarely. In a 1991 opinion, the Attorney General suggested a four-part test to be used in determining whether an entity is a "public agency" and subject to the OPMA: "(1) whether the organization performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the organization was created by the government." 1991 Att'y Gen. Op. No. 5. (http://www.atg.wa.gov/ago-opinions/public-records-open-public-meetings-act-corporations-small- business-export-finance) The courts have applied these factors to determine whether an entity is the "functional equivalent" of a public agency for purposes of the Public Records Act. Telford v. Thurston County Board of Commissioners (http://courts.mrsc.org/mc/courts/zappellate/095wnapp/095wnapp0149.htm) http://www.atg.wa.gov/Open-Governm ent- Resource- Manual /C hapter-3 2/20 7/13/2016 Chapter 31 Washington State (1999); Clarke v. Tri -Cities Animal Care & Control Shelter (http://courts.mrsc.org/mc/courts/zappellate/144wnapp/144wnapp0185.htm) (2008). However, the courts have yet to apply this test to that question for purposes of the OPMA. 3.4 What is a "Governing Body"? A. Definition A "governing body" is defined in the OPMA as "the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." RCW 42.30.020 (http://app.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(2). Because the OPMA is directed to meetings of governing bodies, it does not apply to the activity of an agency that is governed by an individual. In Salmon for All v. Department of Fisheries (http://courts.mrsc.org/mc/courts/zsupreme/118wn2d/118wn2dO270.htm) (1992), the court held that the Department of Fisheries was not subject to the OPMA because it was governed by an individual, the director. Many state agencies, such as the Department of Labor and Industries, the Department of Licensing, the Department of Social and Health Services, the Department of Employment Security, and the Washington State Patrol, similarly lack governing bodies and so are not subject to the OPMA. All local public agencies have governing bodies within the agency. With subagencies, the governing body of the subagency is often the subagency itself, as in the example of a city or county planning commission. B. Committees of a Governing Body In 1983, the legislature amended the definition of governing body to include "any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." RCW 42.30.020 (http://app.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(2). The Attorney General has interpreted "committee thereof' to include all committees established by a governing body, regardless of the identity of their members, such that a committee need not include members of the governing body, though nonmembers must be appointed by the governing body. 1986 Att'y Gen. Op. No. 16 (http://www.atg.wa.gov/ago-opinions/applicability-open-public-meetings-act-committee-governing-body). As a consequence, there may exist little practical difference, in some instances, between a subagency that consists only of a governing body and a committee of a governing body that is established by legislative act. Although it may be clear when a committee is conducting hearings or taking public testimony or comment, it may not be clear when a committee "acts on behalf' of the governing body. However, in Citizens Alliance v. San Juan County (http://www.courts.wa.gov/opinions/index.cfm? fa=opinions.show0pinion &filename=905002MAJ) (2015), the State Supreme Court adopted the reasoning of the Attorney General in 1986 Att'y Gen. Op. No. 16 (http://www.atg.wa.gov/ago-opinions/applicability-open- public-meetings-act-committee-governing-body) and concluded that a committee acts on behalf of the governing body "when it exercises actual or de facto decision-making authority for the governing body." A committee is not exercising such authority when it is simply providing advice or information to the governing body. See Clark v. City of Lakewood (http://openjurist.org/259/f3d/996/brian-clark-v-city-of-lakewood-) (2001). While, clearly, all meetings of the governing body of a subagency are subject to the notice requirements of the OPMA, there is some dispute as to whether a committee of a governing body is similarly required to give notice for all of its meetings when it is only at some of its meetings that it is acting so as to come within the definition of "governing body." Nevertheless, it would be pragmatic for such committees that sometimes engage in such activities - acting on behalf of the governing body, conducting hearings, or taking testimony or public comment - to conduct all their business in open meetings. http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 3/20 7/13/2016 Chapter 31 Washington State Case example: The seven -member city council is considering the purchase of public art. The council agrees that public input would assist the selection process. Some councilmembers believe that the creation of an arts commission that would adopt policies for the city's acquisition of public art would "get politics out of the world of art." Other councilmembers express concern that an arts commission will control too much of the process without significant council input. Three resolutions are drafted for council consideration: The first establishes a city arts commission and details the method of selecting the members, including three city councilmembers and two citizen members, who would serve specific terms. The commission is directed to establish policies for the selection and placement of public art in the city. Its recommended policies will be subject to city council approval. It is directed to obtain public input before the adoption of the recommended policies. As funding becomes available, it will make recommendations to the city council regarding the purchase of works of public art and their location in the city. The second resolution establishes a public arts committee of the city council consisting of three members of the council. Five interested citizens will be asked to participate in its determination of worthy projects. The citizens would serve at the pleasure of the council. The public arts committee is directed to develop a list of citizens who have expressed interest in public art and to hold hearings seeking public comment regarding any recommendations that the committee might make to the full city council. The third resolution recognizes the existence of a citizen's committee known as "Public Art Now!" that was formed by a councilmember. The committee would be authorized to use city's meeting rooms. The council would welcome the committee's advice regarding the selection and placement of public art and its recommendations would be considered at any public hearing when the council decided to purchase works of art. What would be the consequences under the OPMA of the adoption of each resolution? Answer: The city arts commission is probably a "subagency" under the OPMA. It has been created by legislative act and its governing body is directed to develop policy for the city. As such, all of its meetings would be subject to the OPMA's requirements. The public arts committee is probably a "committee" of the governing body, the city council. It is not a separate entity (subagency). Since it will be obtaining public input, at least some of its meetings would be subject to the OPMA. However, it is advisable that it hold all its meetings in open session. "Public Art Now!" is not subject to the OPMA. The city council did not establish it or grant it any authority. 3.5 What Procedures Apply to Meetings Under the OPMA? A. "Meeting" In its definition section, the OPMA first defines "action" before defining a "meeting" as a meeting "at which action is taken.' RCW 42.30.020(4) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.020). "Action" is defined to mean "the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions." RCW 42.30.020 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.020)(3). "Final action" is defined as "a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance." Id. It is not necessary for a governing body to take "final action" for there to be a "meeting" that is subject to the requirements of the OPIVIA; mere "action," such as a discussion of agency business, is sufficient. However, it is not "action" for members of a governing body to individually review material in advance of a meeting at which a public contract was awarded. Equitable Shipyards, Inc. v. State (http://courts.mrsc.org/mc/courts/zsupreme/093wn2d/093wn2dO465.htm) (1980). http://www.atg.wa.gov/Oper}Government-Resource-Manual/Chapter-3 4/20 7/13/2016 Chapter 31 Washington State Ordinarily, a quorum (majority) of the members of a governing body must be present at a meeting for the governing body to be able to transact agency business. As such, a meeting that would be subject to the OPMA occurs if a majority of the members of a governing body were to discuss or consider agency business, no matter where that discussion or consideration might occur. "Action" by less than a quorum is generally not subject to the OPMA. See, e.g., Eugster v. City of Spokane (http://courts.mrsc.org/mc/courts/zappellate/128wnapp/128wnapp0001.htm) (2005). However, as discussed above, a committee of a governing body that includes less than a quorum of the body may be subject to the OPMA in certain circumstances. Physical presence by the members of a governing body is not necessary for there to be a "meeting." For example, an email exchange among a quorum of a governing body in which "action" takes place is a "meeting" under the OPMA. Wood v. Battle Ground School Dist. (http://courts.mrsc.org/mc/courts/zappellate/107wnapp/107wnappO55O.htm) (2001). Since an email exchange among members of a governing body is not open to the public, such an exchange in which "action" takes place would violate the OPMA. It is generally agreed that an agency may authorize one or more of its members to attend a meeting by telephone or video -conferencing, using technologies such as Skype or WebEx, when a speaker phone or video screen is available at the official location of the meeting so the governing body and the public can hear the member's input and the member can hear what is said at the meeting. A quorum of members of a governing body may attend a meeting of another organization's provided that the body takes no "action." 2006 Att'y Gen. Op. No. 6 (http://www.atg.wa.gov/ago-opinions/applicability-open- public-meetings-act-when-quorum-members-governing-body-are-present). For example, a majority of a city council could attend a meeting of a regional chamber of commerce or a county commission meeting provided that the council members did not discuss city business or do anything else that constitutes an "action." The OPMA expressly permits the members of the governing body to travel together or engage in other activity, such as attending social functions, so long as they do not take "action." RCW 42.30.070 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.070). Case example: The five -member school board attends the annual convention of the State School Association. Over dinner, three members discuss some of the ideas presented during the convention, but refrain from any conversation about how they might apply them to the school district. All five travel together to and from the convention and the only discussion is over whether they are lost. Answer: No violation occurred but the board members must be careful. The example is offered to highlight the level of awareness members of a governing body must have. It is not unusual for such situations to arise. For instance, the dinner discussion was among a majority of the members so a discussion about school district business would have been "action" and, without the required notice, would be in violation of the OPMA. B. Types of Meetings Not Covered by the OPMA The OPMA does not apply to certain types of meetings. RCW 42.30.140 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.140) provides that the OPMA does not apply to: Meetings involved with the issuing, denying, suspending, or revoking business, professional, and certain other licenses, including disciplinary proceedings o Quasi-judicial proceedings http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 5/20 7/13/2016 Chapter 3 1 Washington State • Meetings involving matters subject to the Administrative Procedure Act, chapter 34.05 RCW (http://apps.leg.wa.gov/rcw/default.aspx?cite=34.05) • Collective bargaining negotiations and related discussions, and meetings involved with planning for such negotiations and for grievance and mediation proceedings The exact wording of RCW 42.30.140 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.140) should be consulted to determine whether an exemption applies. When a governing body engages in any of these exempt activities, it is not required to comply with the OPMA, although other public notice requirements may apply. Some exempt activities, such as quasi-judicial matters or hearings governed by the Administrative Procedure Act (chapter 34.05 RCW (http://apps.leg.wa.gov/rcw/default.aspx?cite=34.05)), have their own notice requirements. Quasi-judicial matters are those where the governing body is required to determine the rights of individuals based on legal principles. Common examples of quasi-judicial proceedings are certain local land use decisions, such as site- specific rezones, conditional use permits, and variances. Case example: During a break in the regular meeting, the city council gets together in the chambers to decide what they should do with regard to the union's latest offer. They authorize the negotiator to accept the offer on wages if the union will accept the seniority amendments. When they return to the meeting, nothing is said about the discussion or decision. Answer: The OPMA specifically exempts the discussion and decisions about the collective bargaining strategy or position from its requirements. Since it was exempt, the discussion was not required to be open. The OPMA does not provide grounds for exempting public records from disclosure. See Am. Civil Liberties Union v. City of Seattle (http://courts.mrsc.org/mc/courts/zappellate/121wnapp/121wnappO544.htm) (2004). An independent exemption under the Public Records Act or other statute must exist to exempt records from disclosure. See Chapter 1 and Chapter 2. Therefore, even though collective bargaining matters can be discussed in a closed session, this is not a basis for withholding public records reviewed in the executive session relating to that topic. C. Public Notice of Meetings Under the OPMA, public agencies must give notice of regular and special meetings. See Chapter 3.6 for details. D. Secret Votes Prohibited "Secret" votes - where individual votes are not divulged - are prohibited, and any votes taken in violation of the OPMA are null and void. RCW 42.30.060 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.060)(2). The votes of the members of a governing body should be publicly announced at the time the vote is taken. E. Attendance at Meetings The OPMA provides that any member of the public may attend the meetings of the governing body of a public agency. The agency may not require people to sign in, complete questionnaires, or establish other conditions to attendance. RCW 42.30.040 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.040). For instance, an agency could not limit attendance to those persons subject to its jurisdiction. The OPMA does not address whether an agency is required to hold its meeting at a location that would permit every person to attend. However, it seems clear that the courts would discourage any attempt to deliberately schedule a meeting at a location that was too small to permit full attendance or that was locked. RCW 42.30.050 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.050). http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 6/20 7/13/2016 Chapter 31 Washington State A person may record (audio or video) a meeting provided that it does not disrupt the meeting. 1998 Att'y Gen.. Op. No.15 (http://www.atg.wa.gov/ago-opinions/authority-county-restrict-video-andor-sound-recording- county-meetings). A stationary audio or video recording device would not normally disrupt a meeting. If those in attendance are disruptive and make further conduct of the meeting unfeasible, those creating the disruption may be removed. RCW 42.30.050 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.050); In re Recall of Kast (http://courts.mrsc.org/mc/courts/zsupreme/144wn2d/144wn2dO8O7.htm) (2001). If order cannot be restored to the meeting by the removal of persons disrupting the meeting, the meeting room may be cleared and the meeting continued, or the meeting may be reconvened in another location. However, members of the media are entitled to attend the adjourned meeting and the governing body is limited to act only on those matters on the agenda. The governing body may also authorize readmitting persons not responsible for disrupting the meeting. Id. Case example: The school board schedules a special meeting to discuss a controversial policy question. It becomes obvious that the regular meeting room is too small for all of those trying to attend the meeting. The board announces that the meeting will be adjourned to an auditorium in the same building. The chair announces that those who wish to speak should sign in on the sheet on the table. She states that given the available time, speakers will be limited to three minutes each. At one point, the meeting is adjourned to remove an apparently intoxicated person who had been interrupting the comments of speakers. Resolution: While the OPMA allows the public to attend all meetings, it does not allow for the possibility of insufficient space. Presumably, if a nearby location is available, the governing body should move there to allow attendance. The chair can require those who wish to speak (but not all attendees) to sign in. The sign -in requirement for speaking does not restrict attendance, only participation. Since the OPMA does not require the governing body to allow public participation, the time for each speaker can also be limited. The governing body can maintain order by removing those who are disruptive. F. Right to Speak at Meetings The OPMA does not require a governing body to allow public comment at a public meeting. If a governing body does allow public comment, it has authority to limit the time of speakers to a uniform amount (such as three minutes) and the topics speakers may address. 3.6 The OPMA Requires Notice of Meetings A "meeting" under the OPMA is either a "regular" meeting or a "special" meeting, with different notice requirements for each. So, for example, a meeting designated as a "retreat," "study session," or "workshop" is, for OPIVIA purposes, either a regular or a special meeting, depending on how it is held. A. Regular Meetings The OPMA requires agencies to identify the time and place their governing bodies will hold regular meetings, which are defined as "recurring meetings held in accordance with a periodic schedule declared by statute or rule." RCW 42.30.075 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.075). State agencies subject to the OPMA must publish their schedule in the Washington State Register (http://www.leg.wa.gov/codereviser/pages/washington_state_register.aspx), while local agencies (such as cities and counties) must adopt the schedule "by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body." RCW 42.30.075 (http://apps.leg.wa.gov/rcw/default.aspx? cite=42.30.075); RCW 42.30.070 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.070). Although the OPIVIA does not require local agency governing bodies to meet inside the boundaries of their jurisdiction, there is general agreement that agencies should not schedule meetings at locations that effectively exclude the public. Other statutes may require certain entities to hold their meetings at particular locations, such as http://www.atg.wa.gov/Open-Gover nm ent- Resource- Manual /C hapter-3 7/20 7/13/2016 Chapter 31 Washington State RCW 36.32.080 (http://apps.leg.wa.gov/RCW/default.aspx?cite=36.32.080), which requires a board of county commissioners to hold regular meetings at the county seat, or at the alternate locations specified in that statute. If a scheduled regular meeting falls on a holiday, it must be held on the next business day. RCW 42.30.070 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.070). A 2014 amendment to the OPMA requires agencies with governing bodies to make the agenda of regular meetings available online at least 24 hours in advance of the meeting. RCW 42.30.077 (http://app.leg.wa.gov/rcw/default.aspx?cite=42.30.077). This requirement does not apply if the agency does not have a website or if it employs fewer than 10 full-time equivalent employees. Also, this requirement does not mean that an agency cannot modify the agenda after it is posted online. A failure to comply with this requirement with respect to a meeting will not invalidate an otherwise legal action taken at the meeting. Other laws and local governing body rules may require additional regular meeting notice and publication and/or posting of a preliminary agenda. See, e.g., RCW 35.23.221(http://apps.leg.wa.gov/rcw/default.aspx? cite =35.23.221), RCW 35A.12.160 (http://apps.leg.wa.gov/RCW/default.aspx?cite=35A.12.160). B. Special Meetings Whenever an agency has a meeting at a time other than a scheduled regular meeting, it is conducting a "special meeting." RCW 42.30.080 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.080). For each special meeting, the OPMA requires at least 24 hours' written notice to: the members of the governing body, delivered personally, or by mail, fax, or email; media representatives (newspaper, radio, and television) who have filed a written request for notices of a particular special meeting or of all special meetings, delivered personally, or by mail, fax, or email; and the public, by posting on the agency website and by prominently posting it at the main entrance of the agency's principal location and at the meeting site if the meeting will not be held at the agency's principal location. An agency is not required to post the public notice on its website if it does not have one, if it has less than 10 full-time equivalent employees, or if doesn't employ personnel whose job it is to maintain the website. The OPMA does not provide any guidance as to whether the media's written request for notice must be renewed; it is advisable, however, to periodically renew such requests to ensure that they contain the proper contact information for the notice and have not been misplaced or inadvertently overlooked due to changes in agency personnel. The notice of a special meeting must specify the time and place of the meeting and "the business to be transacted;' which would normally be an agenda. At a special meeting, final disposition by the agency is limited to the matters identified as the business to be conducted in the notice. The statutory language suggests that the governing body could discuss, but not finally dispose of, matters not included in the notice of the special meeting. A member of the governing body may waive the required notice by filing a written waiver or by simply appearing at the special meeting. Estey v. Dempsey (http://courts.mrsc.org/mc/courts/zsupreme/104wn2d/104wn2dO597.htm) (1985). The failure to provide notice to a member of the governing body can only be asserted by the person who should have received the notice, not by any person affected by action at the meeting. Kirk v. Pierce County Fire Protection Dist. No. 21 (http://courts.mrsc.org/mc/courts/zsupreme/095wn2d/095wn2dO769.htm) (1981). http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 8/20 7/13/2016 C. Emergency Meetings Chapter 3 1 Washington State The OPMA provides that, in the event of an emergency such as a fire, flood, or earthquake, meetings may be held at a site other than the regular meeting site, and the notice requirements of the OPMA are suspended during the emergency. RCW 42.30.070 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.070). An agency should, however, provide special -meeting notice of an emergency meeting, if practicable. RCW 42.30.080 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.080)(4). The courts have found that an agency must be confronted with a true emergency that requires immediate action, such as a natural disaster, for its governing body to hold an emergency meeting that does not comply with the OPMA. It has been held that a strike by teachers did not justify an "emergency" meeting by the school board. Mead School Dist. No. 354 v. Mead Education Assn (http://courts.mrsc.org/mc/courts/zsupreme/085wn2d/085wn2d014O.htm) (1975). D. Adjournments and Continuances The OPMA establishes procedures for a governing body to adjourn a regular or special meeting and continue that meeting to a time and place identified in an order of adjournment. RCW 42.30.090 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.090). Less than a quorum of a governing body may adjourn and continue a meeting under these procedures, or the clerk or secretary of the body may do so if no members are present. Notice of the meeting adjournment must be the same that is required for special meetings in RCW 42.30.080 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.080), and a copy of the order or notice of adjournment must be posted on or near the door of the place where the meeting was held. Public hearings held by a governing body may be continued to a subsequent meeting of the governing body following the procedures for adjournment in RCW 42.30.090 (http://apps.leg.wa.gov/rcw/default.aspx? cite=42.30.090). RCW 42.30.100 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.100). 3.7 Executive Sessions Are Allowed for Specific Topics, Following OPMA Procedures "Executive session" is not expressly defined in the OPMA, but the term is commonly understood to mean that part of a regular or special meeting of a governing body that is closed to the public. A governing body may hold an executive session only for specified purposes, which are identified in RCW 42.30.110(1)(a) -(m) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110), and only during a regular or special meeting. Nothing, however, prevents a governing body from holding a meeting, which complies with the OPMA's procedural requirements, for the sole purpose of having an executive session. Attendance at an executive session need not be limited to the members of the governing body. Persons other than the members of the governing body may attend the executive session at the invitation of that body. Those invited should have some relationship to the matter being addressed in the closed session, or they should be in attendance to otherwise provide assistance to the governing body. For example, staff of the governing body or of the governmental entity may be needed to present information or to take notes or minutes. However, minutes are not required to be taken at an executive session. See RCW 42.32.030 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.32.030). Because an executive session is an exception to the OPMA's overall provisions requiring open meetings, a court will narrowly construe the grounds for an executive session in favor of requiring an open meeting. Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999). A. Procedures for Holding an Executive Session http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 9/20 7/13/2016 Chapter 31 Washington State To convene an executive session, the governing body's presiding officer must announce: (1) the purpose of the executive session, and (2) the time when the executive session will end. The announcement is to be given to those in attendance at the meeting. RCW 42.30.110(2). (http://apps.leg.wa.gov/RCW/default.aspx? cite=42.30.110) The announced purpose of the executive session must be one of the statutorily identified purposes for which an executive session may be held. The announcement therefore must contain enough information to identify the purpose as falling within one of those identified in RCW 42.30.110(1) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110). It would not be sufficient, for example, for a mayor to declare simply that the council will now meet in executive session to discuss "personnel matters." Discussion of personnel matters, in general, is not an authorized purpose for holding an executive session; only certain specific issues relating to personnel may be addressed in executive session. See RCW 42.30.110(1) (f), (g) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110). Another issue that may arise concerning these procedural requirements for holding an executive session involves the estimated length of the session. If the governing body concludes the executive session before the time that was stated it would conclude, it should not reconvene in open session until the time stated. Otherwise, the public may, in effect, be excluded from that part of the open meeting that occurs between the close of the executive session and the time when the presiding officer announced the executive session would conclude. If the executive session is not over at the stated time, it may be extended only if the presiding officer announces to the public at the meeting place that it will be extended to a stated time. Case Example: Three members of a five -member school board meet privately, without calling a meeting, to exchange opinions of candidates for the school superintendent position. They justify this private meeting on the ground that the board may meet in executive session to discuss the qualifications of applicants for the superintendent position, under RCW 42.30.110(1)(g). (http://apps.leg.wa.gov/RCW/default.aspx? cite=42.30.110) Have these school board members complied with RCW 42.30.110 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110)? Answer. Clearly, they have not. Although a governing body may discuss certain matters in closed session under this statute, that closed session must occur during an open regular or special meeting and it may be commenced only by following the procedures in RCW 42.30.110(2). (http://apps.leg.wa.gov/RCW/default.aspx? cite=42.30.110) The public must know the board is meeting in executive session and why. Although, as discussed above, some matters are not subject to the Open Public Meetings Act under RCW 42.30.140 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.140); however, the above example is not one of them. B. Grounds for Holding an Executive Session An executive session may be held only for one of the purposes identified in RCW 42.30.110(1) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110), as follows: (a) Matters Affecting National Security After September 11, 2001, state and local agencies have an increased role in national security. Therefore, discussions by agency governing bodies of security matters relating to possible terrorist activity should come within the scope of this executive session provision. (b) Acquisition of Real Estate by Lease or Purchase http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 10/20 7/13/2016 Chapter 31 Washington State This provision has two elements: (1) the governing body must be considering either selecting real property for purchase or lease or it must be considering purchasing or leasing specific property; and (2) public knowledge of the governing body's consideration would likely cause an increase in the price of the real property. For the purposes of this provision, the consideration of the purchase of real property can involve condemnation of the property, including the amount of compensation to be offered for the property. Port of Seattle v. Rio (http://courts.mrsc.org/mc/courts/zappellate/016wnapp/016wnappO718.htm) (1977). However, it remains unclear exactly what the scope is of "considering" the acquisition of real property. Since this subsection recognizes that the process of purchasing or leasing real property or selecting real property to purchase or lease may, in some circumstances, justify an executive session, it implies that the governing body may need to reach some consensus in closed session as to the price to be offered or the particular property to be selected. See Port of Seattle (http://courts.mrsc.org/mc/courts/zappellate/016wnapp/016wnappO718.htm) (1977). However, the Washington Supreme Court in Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999) emphasized that "only the action explicitly specified by the exemption ["consider"] may take place in executive session." See also Feature Realty, Inc. v. City of Spokane (http://caselaw.findlaw.com/us-9th-circuit/1158500.html) (2003). Taken literally, this limitation would preclude a governing body in executive session from actually selecting a piece of property to acquire or setting a price at which the body would be willing to purchase property, because such action would be beyond the power to merely "consider." Yet, the purpose of an executive session under this subjection would be defeated if the governing body would be required to vote in open session to select the property or to decide how much it would be willing to pay for the property, where public knowledge of these matters would likely increase its price. (c) Sale or Lease of Agency Property This subsection, the reverse of the previous one, also has two elements: (1) the governing body must be considering the minimum price at which real property belonging to the agency will be offered for sale or lease; and (2) public knowledge of the governing body's consideration will likely cause a decrease in the price of the property. This provision also states that final action selling or leasing public property must be taken in an open meeting. That statement may seem unnecessary, since all final actions must be taken in a meeting open to the public. However, its possible purpose may be to indicate that, although the decision to sell or lease the property must be in open session, the governing body may decide in executive session the minimum price at which it will do so. A contrary interpretation would seemingly defeat the purpose of this subsection. But see Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999) and discussion in Chapter 3.9B(b) above. Governing bodies should exercise caution when meeting in closed session under this and the preceding provision so that they are not doing so when there would be no likelihood of increased price if the matter were considered in open session. (d) Performance of Publicly Bid Contracts This subsection indicates that when a public agency and a contractor performing a publicly bid contract are negotiating concerning how the contract is being performed, the governing body may "review" those negotiations in executive session if public knowledge of the review would likely cause an increase in contract costs. Presumably, difficulties or disputes concerning contract performance have arisen in some contexts that require confidentiality to avoid increased costs where the nature of the difficulties or disputes would become public knowledge. http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 11/20 7/13/2016 Chapter 31 Washington State (e) Consideration of Certain Information by an Export Trading Company This provision, which authorizes consideration in executive session of financial and commercial information supplied by private persons to an export trading company, applies to export trading companies that can be created by port districts under chapter 53.31 RCW (http://apps.leg.wa.gov/RCW/default.aspx?cite=53.31). Under RCW 53.31.050 (http://apps.leg.wa.gov/RCW/default.aspx?cite=53.31.050), financial and commercial information supplied by private persons to an export trading company must be kept confidential. (f) Complaints or Charges Against Public Officer or Employee This provision authorizes executive sessions to receive and evaluate complaints or charges brought against a public officer or employee. It should be distinguished from subsection (g), discussed below, concerning reviewing the performance of a public employee in executive session. For purposes of meeting in executive session under this provision, a charge or complaint must have been brought against a public officer or employee. The complaint or charge could come from within the agency or from the public. Bringing the complaint or charge triggers the opportunity for the officer or employee to request that a public hearing or open meeting be held regarding the complaint or charge. (g) Evaluating Qualifications or Performance of a Public Employee/Official There are two different purposes under this provision for which a governing body may meet in executive session. For both purposes, the references to "public employment" and to "public employee" include within their scope public offices and public officials, so that a governing body may evaluate in executive sessions persons who apply for appointive office positions, such as state university president or city manager, as well as for employee positions. The first purpose involves evaluating the qualifications of applicants for public employment. This could include personal interviews with an applicant, discussions concerning an applicant's qualifications for a position, and discussions concerning salaries, wages, and other conditions of employment personal to the applicant. The authority to "evaluate" applicants in closed session allows a governing body to discuss the qualifications of applicants, not to choose which one to hire. Although this subsection expressly mandates that "final action hiring" an applicant for employment be taken in open session, this does not mean that the governing body may take preliminary votes that eliminate candidates from consideration. Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999). The second part of this provision concerns reviewing the performance of a public employee. This provision would be used typically either where the governing body is considering a promotion or a salary or wage increase for an individual employee or where it may be considering disciplinary action based on an employee's performance. It should be distinguished from subsection (f), which concerns specific complaints or charges brought against an employee and which, at the request of the employee, must be discussed in open session. The result of a governing body's closed session review of the performance of an employee may be that the body will take some action either beneficial or adverse to the officer or employee. That action, whether raising a salary of or disciplining an officer or employee, must be made in open session. When a discussion involves salaries, wages, or conditions of employment to be "generally applied" in the agency, it must take place in open session. However, if that discussion involves collective bargaining negotiations or strategies, it is not subject to the OPMA and may be held in closed session without being subject to the procedural requirements for an executive session in RCW 42.30.110(2) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.110). See RCW 42.30.140(4) (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.140). http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 12/20 7/13/2016 Chapter 3 1 Washington State Case Example: A city council meets in executive session to consider two applicants for the city manager position. During the discussion of the applicants' qualifications, particularly regarding their past city manager experience, it becomes clear that a majority of the council members are not happy with the qualifications of either candidate. The discussion then turns to the search process and whether it was broad enough or sufficiently advertised to attract all interested and qualified candidates. A number of council members express dissatisfaction with the process and express a desire to begin the search for a city manager anew, with a more comprehensive search process. The council then closes the executive session and reconvenes the open session. A motion is made and a vote is taken to reject both of the candidates for the city manager position the council had evaluated in closed session. Then a second motion is made and approved to authorize city staff to develop a new search procedure that is broader and more extensively advertised than the original search. Did the council meet improperly in executive session? Resolution: Yes and no. The council satisfied subsection (g) by discussing the merits of the two applicants. It did not vote on either of the applicants. The fact that it became clear from the individual council members' expressions of opinion that neither applicant was sufficiently qualified from the council's point of view does not allow any final action inclosed session. The vote taken to reject both applicants took place in open session. However, the discussion concerning the search process should have taken place in open session, because it did not involve evaluating the qualifications of any applicant for the city manager position. (h) Evaluating Candidates for Elective Office This provision applies when an elected governing body is filling a vacant position on that body. Examples of such bodies include a board of county commissioners, a city council, a school board, and the boards of special purpose districts, such as fire protection and water -sewer districts. Under this provision, an elected governing body may evaluate the qualifications for an applicant for a vacant position on that body in executive session. However, unlike when it is filling other positions, the governing body may interview an applicant for a vacancy in an elective office only in open session. As with all other appointments, the vote to fill the position must also be in open session. (i) Litigation, Potential Litigation, or Enforcement Actions An agency must meet three basic requirements before it can invoke this provision to meet in closed session. First, "legal counsel representing the agency" must attend the executive session to discuss the enforcement action, or the litigation or potential litigation. This is the only executive session provision that requires the attendance of someone other than the members of the governing body. The legal counsel may be the "regular" legal counsel for the agency, such as a city attorney or the county prosecutor, or it may be legal counsel hired specifically to represent the agency in particular litigation. Second, the discussion with the legal counsel either must concern an agency enforcement action or it must concern litigation or "potential litigation" to which the agency, the governing body, or one of its members acting in an official capacity is or is likely to become a party. Discussions concerning enforcement actions or existing litigation could, for example, involve matters such as strategy or settlement. This provision for an executive session defines "potential litigation" as matters that are protected by attorney- client privilege concerning: • Litigation that has been specifically threatened to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party; • Litigation that the agency reasonably believes may be commenced by or against the agency, the governing body, or a member acting in an official capacity; or • Litigation or legal risks of a proposed action or current practice that the agency has identified when http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 13/20 7/13/2016 Chapter 3 1 Washington State public discussion of the litigation or legal risks is likely to result in an adverse legal or financial consequence to the agency. This definition permits discussions by an agency governing body of actions that involve a genuine legal risk to the agency. This allows a governing body to freely consider the legal implications of a proposed decision without the concern that it might be jeopardizing some future litigation position. The third requirement for meeting in closed session under this subsection is that public knowledge of the discussion would likely result in adverse legal or financial consequence to the agency. It is probable that public knowledge of most discussions of existing litigation to which the agency, the governing body, or one of its members in an official capacity is a party would result in adverse legal or financial consequence to the agency. Knowledge by one party in a lawsuit of the communications between the opposing party and its attorney concerning that lawsuit will almost certainly give the former an advantage over the latter. The same probably can be said of most discussions that qualify as involving potential litigation. The Washington Supreme Court, in Recall of Lakewood City Council (http://courts.mrsc.org/mc/courts/zsupreme/144wn2d/144wn2dO583.htm) (2001), held that a governing body is not required to determine beforehand whether disclosure of the discussion with legal counsel would likely have adverse consequences; it is sufficient if the agency, from an objective standard, should know that the discussion is not benign and will likely result in adverse consequences. Since the purpose of this executive session provision is only to allow the governing body to discuss litigation or enforcement matters with legal counsel, the governing body is not authorized to take final action regarding such matters in an executive session. Recent case law suggests that a governing body may do no more than discuss litigation or enforcement matters and may therefore be precluded from decisions in the context of such a discussion in order to advance the litigation or enforcement action. In Feature Realty, Inc. v. City of Spokane (http://caselaw.findlaw.com/us-9th-circuit/1158500.html) (2003), the federal Ninth Circuit Court of Appeals invalidated a "collective positive decision" of a governing body in executive session to approve a settlement agreement. The Feature Realty court relied on the Washington Supreme Court's holding in Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999) that a governing body can only take an action in executive session "explicitly specified" in an exemption to the OPMA. This provision is, in practice, often used as a justification for executive sessions, particularly because "potential litigation" is susceptible to a broad reading. Indeed, many things a public agency does will subject it to the possibility of a lawsuit. However, a court will construe "potential litigation" or any other grounds for an executive session narrowly and in favor of requiring open meetings. Miller v. City of Tacoma (http://courts.mrsc.org/mc/courts/zsupreme/138wn2d/138wn2dO318.htm) (1999). To avoid a reading of this subsection that may be broader than that intended by the legislature — and to avoid a suit alleging a violation of the OPMA — it is important for a governing body to look at the facts of each situation in the context of all the requirements of this subsection. Case Example: A board of county commissioners is considering adopting a stringent adult entertainment ordinance, and a company that had announced its intention to locate a nude dancing establishment in the county states that it will sue the county if it passes this ordinance. The commissioners call an executive session to discuss with the prosecuting attorney this "potential litigation." Specifically, they intend to discuss with the prosecuting attorney his opinion as to the proposed ordinance's constitutionality. May the commissioners meet in executive session to discuss this? Answer: The county commissioners may discuss with their legal counsel in executive session the constitutionality of the proposed ordinance, particularly in light of the threatened legal challenge. They want to have a strong position coming into the litigation. The company's knowledge of their discussion would give it http://www.atg.wa.gov/OperrGovernment-Resource-Manual/Chapter-3 14/20 7/13/2016 Chapter 31 Washington State an unfair advantage in framing the constitutional theories in support of its threatened suit against the county. Also, the prosecuting attorney may not feel he can be totally candid with the commissioners in open session. The company, on the other hand, may argue that the commissioners are not discussing the potential litigation, but rather are only discussing the ordinance. The commissioners should always be aware of the constitutionality of the actions they take. But, that does not mean the commissioners have the authority to meet in executive session any time they are proposing legislation that may implicate constitutional issues. However, given the circumstances here, the commissioners' position should prevail. Consistent with the definition of "potential litigation" added by the legislature in 2001, the county commissioners may discuss the "legal risks of a proposed action," in this case, the legal risks of adopting a stringent adult entertainment ordinance, particularly when the company has threatened litigation if the county adopts the ordinance. (j) Western Library Network Prices, Products, Equipment, and Services This provision for executive session no longer has any applicability, as the State Library Commission has been abolished and the Western Library Network statutes have been repealed. See RCW 27.04.090 (http://apps.leg.wa.gov/RCW/default.aspx?cite=27.04.900) and former chapter 27.26 RCW. (k) State Investment Board Consideration of Financial and Commercial information This provision clearly is designed to protect the integrity of public trust or retirement funds. It allows the State Investment Board, established and governed by chapter 43.33A RCW (http://apps.leg.wa.gov/RCW/default.aspx?cite=43.33A), to consider commercial and financial information relating to the investment of such funds in closed session, if discussion in open session would result in loss to those funds or to the private providers of the information. (1) Information Related to State Purchased Health Care Services This provision allows executive sessions to consider proprietary or confidential nonpublished information related to the development, acquisition, or implementation of state purchased health care services as provided in RCW 41.05.026 (http://app.leg.wa.gov/rcw/default.aspx?cite=41.05.026). (m) Life Sciences Discovery Fund Authority Grant Applications and Grant Awards (n) Health Sciences and Services Authority Grant Applications and Grant Awards The above two provisions for executive sessions, added in 2005 and 2010 respectively, are clearly intended to protect applicants for grants awarded by these agencies from disclosure of certain confidential or proprietary information that the agency governing bodies consider in discussions concerning the award of these grants. To convene an executive session for such discussions, there must be a reasonable expectation that public knowledge of these discussions would cause harm to the applicants who provide this information. 3.8 The OPMA Provides Remedies/Penalties for Violations Any person may challenge an action based on a violation of the OPMA through a suit in superior court as provided in RCW 42.30.120 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.120) and RCW 42.30.130 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.130). Four distinct remedies are available to persons under the OPMA: Nullification of actions taken in illegal meetings (RCW 42.30.060 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.060)(1)) http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 15/20 7/13/2016 Chapter 31 Washington State Civil penalties of $100 per member of the governing body for knowing violations of the OPMA (RCW 42.30.120 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.120)(1)) 9 An award of costs and reasonable attorney fees for any person prevailing in an action alleging an OPMA violation (RCW 42.30.120 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.120)(2)) * Mandamus or injunction to stop OPMA violations or prevent threatened violations (RCW 42.30.130 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.130)) If the court determines that a public agency has taken action in violation of the OPMA, that action is null and void. RCW 42.30.060 (http://apps.leg.wa.gov/rcw/default.aspx?cite=42.30.060)(1). If an agency's action is null and void as a result of an OPMA violation, the agency must re -trace its steps by taking the action in accordance with the OPMA in order to make that action valid. See Henry v. Town of Oakville (http://courts.mrsc.org/mc/courts/zappellate/030wnapp/030wnappO240.htm) (1981); _Fgoture Rgalty v. City a Spokane b casere„art r'F ± 31 331.1`3d.1082.01-36137.02- 5430.htr1�I (2003) (agency re -tracing of steps must be done in public). But if the OPMA violation occurs early in the governing body's consideration of a matter, subsequent actions taken in compliance with the OPMA, including the final action, are valid. OPAL v. Adams County (http://courts.mrsc.org/mc/courts/zsupreme/128wn2d/128wn2dO869.htm) (1996); see also 33 Op. Att'y Gen. at 40 (http://www.atg.wa.gov/ago-opinions/meetings-public-applicability-open-public-meetings-act-state-and- local-governmental) (1971). If a court determines that a governing body violated the OPMA, each member of the governing body who attended the meeting with knowledge that the meeting was in violation of the OPMA is subject to a $100 civil penalty. RCW 42.30.120 (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.120). A violation of the OPMA is not a criminal offense. A court must award all costs, including attorney fees, to a party who is successful in asserting an OPMA violation against an agency. RCW 42.30.120(2). (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.120) If the court finds that the lawsuit against the agency is frivolous, the agency may recover its attorney fees and expenses. The only statutory remedy is an action filed in superior court. RCW 42.30.120(2). (http://apps.leg.wa.gov/RCW/default.aspx?cite=42.30.120) Also, an OPMA violation may provide a sufficient legal basis for a recall effort against a local elected official. See, e.g., In re Recall of Lakewood City Council Members (http://courts.mrsc.org/mc/courts/zsupreme/144wn2d/144wn2dO583.htm) (2001); In re Recall of Kast (http://courts.mrsc.org/mc/courts/zsupreme/144wn2d/144wn2dO8O7.htm) (2001). Case example: Prior to a regular meeting, two members of a three-member board of county commissioners communicate by email about an ordinance to be considered at the upcoming regular meeting. At that meeting, the board discusses and then adopts the ordinance the two commissioners had discussed by email. After making a PRA request for the commissioners' emails, a county resident challenges the validity of the ordinance based on an alleged violation of the OPMA when the two commissioners discussed the ordinance by email. Answer: The email discussion by the two commissioners was "action” under the OPMA, and, since it did not occur in a meeting open to the public, it was a violation of the OPMA. The two commissioners are personally liable for the $100 penalty if they knew the email discussion was in violation of the OPMA. It seems unlikely that the commissioners would not have known that their email discussion was in violation of the OPMA, and so they will likely be subject to that penalty. http://www.atg.wa.gov/Open-Government-Resource-Manual/Chapter-3 16/20 7/13/2016 Chapter 3l Washington State The ordinance adopted by the commissioners after discussion in an open meeting should not be invalidated based on the improper email discussion. The board discussed the ordinance and voted on it in open session, in compliance with the OPMA. So, despite the earlier OPMA violation, the board subsequently complied with the OPMA in adopting the ordinance. 3.9 The OPMA Requires Training Legislation enacted in 2014 requires that all members of state and local governing bodies receive training on the requirements of the OPMA. RCW 42.30.205 (http://app.leg.wa.gov/rcw/default.aspx?cite=42.30.205). The training must be completed within 90 days after a governing body member takes the oath of office or otherwise assumes the duties of the position. The training must be repeated at intervals of no longer than four years, as long as an individual is a member of the governing body. This legislation does not specify the training that must be received, other than to state that it may be taken online. For information on this new training requirement, see the Attorney General's Open Government Training Web page. 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IN \ \\ Regular Meetings _ Special Meetings \\ \ \ Held in accordance with a schedule fixed by ordinance, resolution, Anything other than a regular meeting. May be called by the presiding officer or a majority of \' bylaws, or other rule. the members of the governing body. \�\ Agendas must be made available on the agency's website at least 24 hours in advance of the meeting unless the enc g agency: 1. Doesn't have The special meeting notice must specify the date, time and place of the special meeting, and the business to be transacted. a website; or � Personal notice. Written notice must be delivered personally, b mail, fax, ore -mail at least P Y Y 2. Employs fewer than 10 full-time equivalent employees. 24 hours before the meeting to: 1. Each member of the governing body, unless the member submits a written waiver of There are no other notice requirements for regular meetings in notice in advance with the clerk, or the member is actual) resent at the meeting; YP g L� the OPMA. However, other relevant laws apply to some local and governments. For example, cities and towns are required to establish 2. Each member of the news media who has on file with the governing body a written g g Y a procedure for notifying the public of the preliminary agenda for forthcoming request for notice of special meetings. the council meeting and any upcoming hearings - Website notice. Notice must be posted on the agency's website 24 hours in advance of the (although not necessarily online). _ ; __ ; meeting, unless the agency: r . There are no similar requirements 1. Doesn't have a website; or for counties or special purpose districts related to preliminary 2. Employs less than 10 full-time equivalent employees; or agendas. g 3. Doesn't employ personnel whose duty, as defined by a job description or existing \ contract, is to maintain or update the website. Notice atagency's rinci al location. Notice must be prominently displayed at the main \�MEN entrance of the agency's principal location and the meeting site if the meeting isn't held at the agency's principal location. �. In an emergency situation e. fire, flood, earthquake, or other g Y ( g•, q emergency), a meeting may be held at a site other than the regular The notices required for special meetings aren't required if a special meeting is called to deal with an emergency involving injury or damage to persons or property or the likelihood of such meeting site, and the notice requirements under the OPMA are injury or damage, when time requirements of such notice would make notice impractical and suspended during such an emergency. increase the likelihood of such injury or damage. Regular meetings shall not be held onholidays. If a regular meeting falls Although not specifically addressed by the OPMA, we recommend that special meetings not be on a holiday, the meeting must be held on the next business day. held on holidays out of consideration for public participation. There are no restrictions on the type of business that may be transacted at regular meetings. Final disposition cannot be taken on any matter not listed in the special meeting notice, *DISCLAIMER: These practice tips are meant to provide summary information on the notice requirements of the OPMA; these tips are not intended to be regarded as specific legal advice. Consult with your agency's legal counsel about this topic as well. May 2016 RE II..'tIR D/ F r II III,; • All meetings open and public. All meetings of governing bodies of public agencies must be open to the public, except for certain exceptions outlined in the OPMA. IiR(',"eN �2.: 0, le a//. • Quorum. Generally, a meeting occurs when a quorum (majority) of the governing body is in attendance and action is taken, which includes discussion or deliberation as well as voting. FKA/ �),:ko:1.020(2) & (3). • Attendees. All persons must be permitted to attend and attendees cannot be required to register their names or other information as a condition of attendance. Disruptive and disorderly attendees may be removed. Il;CW 42 3/),040 & .050. • No secret ballots. Votes may not be taken by secret ballot. RCV\/ 4 �.30.060(2). • Adoption of ordinances. Ordinances, resolutions, rules, regulations, and orders must be adopted at a public meeting or they are invalid. R0A/ d2,31i:1.060(1). Member of a governing body ❑ City or Town Councilmember or Mayor Yes ❑ County Commissioner or County Councilmember ❑ Special Purpose District Commissioner/Board Member Member of a subagency created by ordinance or legislative act, e.g.: ❑ Planning Commission ❑ Library Board Yes ❑ Parks Board ❑ Civil Service Commission Member of a committee ❑ Committees that act on behalf of (exercise actual or de facto decision-making authority for) Yes the governing body, conduct hearings, or take testimony or public comment *DISCLAIMER: These practice tips are meant to provide summary information on basic agency obligations of the CPMA; the practice tips are not intended to be regarded as specific legal advice. Consult with your agency's legal counsel about this topic as well, May 2016 ON LOCAL PLANNING Welcome The Short Course on Local Planning, always free and open to all, has been presented in local communities in Washington State continually since 1977. If you are a Planning Commissioner, this course was created especially for you. It is also useful as a source of basic information for staff, elected officials, and the general public about the land use planning process in Washington. This publication is intended for attendees of the Short Course on Local Planning to use at an in- person short course, or as a guide to follow the videos on the Short Course web page. www. commerce.wa.gov/growth http://Bit.ly/SCLoco1Planning Table of Contents Comprehensive Planning Basics • Why Planning Matters 2 • Comprehensive Planning under the GMA 3 • Implementing your Plan 7 • Updating Your Plan and Regulations 9 Washington's Legal Framework for Land Use planning • Early Land Use Planning Laws 11 • Constitutional Protections 14 Open Government Laws • Open Public Meetings and Public Records Acts 19 • Appearance of Fairness Doctrine 21 Roles in Planning and Effective Meetings • Roles in Planning 22 • Types of Planning Decisions 23 • Effective Meetings 25 Why Planning Matters Between 1990 and 2010, our state's population grew from 4.1 to 6.7 million people. The Washington State Office of Financial Management' projects our population will grow by another 2 million people by 2040. Adding more people may change our communities. By anticipating that change through comprehensive planning, communities can manage the way they grow, and plan for development that fits their local vision and values. Your community's comprehensive plan starts with a vision of a preferred future, which looks ahead at least 20 years. This vision and the plan's goals and policies guide local actions to help your community achieve its desired future. Your plan helps you to: • Protect and enhance the good things about your community, such as neighborhoods, parks, or open spaces. • Agree on a shared vision for the future of your community. • Save money by identifying priorities for public spending, and be prepared to apply for external sources of funding. Identify and develop achievable strategies for your community's needs such as affordable housing or more jobs. While local governments by themselves don't create housing or jobs, they can set the stage through planning. Build a stronger sense of community, grow your local economy, and coordinate with other agencies in the region. Be better prepared to meet the needs and issues of the future. Each one of us has a stake in our community's future. We all want to live in great places, but they don't happen by accident. They happen because people take the time to ask what's good here, what's missing, and what could be better, and how will we plan for growth that will likely come. ' ofm.wa.gov Comprehensive Planning under the Growth Management Act The Growth Management Act (GMA) was adopted in 1990 as a response to concerns about unprecedented and largely uncontrolled growth in the 1970s and 80s, and the risks uncontrolled growth posed to our environment and quality of life. THE GMA HAS 14 GOALS (RCW 36.70A.020) These goals guide preparation of comprehensive plans. • Encourage compact urban growth • Reduce sprawl • Coordinated, multimodal transportation • Affordable housing • Economic development • Protect property rights • Predictable permitting Maintain natural resource industries • Retain open space, enhance recreation • Protect the environment • Encourage citizen participation • Ensure availability of public facilities and servict-_ • Encourage historic preservation • Manage shoreline development ALL COUNTIES HAVE BASIC REQUIREMENTS First, all counties must designate and conserve resource lands of long-term commercial significance. Conservation of resource lands protects forestry, agricultural and mineral extraction industries. "Designate" means identifying resource lands not characterized by urban growth. For agricultural lands, soils are carefully assessed. (RCW 36.70A.170) All counties and cities must designate and protect environmentally critical areas. These include wetlands, fish and wildlife habitat conservation areas, critical aquifer recharge areas, frequently flooded areas and geologically hazardous areas. Local governments must use the best available science and adopt regulations to protect functions and values of critical areas. (RCW 36.70A.172) 2 3 Growth Management Act Mandate to Plan r^' 1: �ij�/ f r � j�/��Ai/��%%�// //// q/%i%i %✓/rrr %O�t�,.. Durvwnnln �,,, ru, GMA Required to Plan g10 RCW 36.70A.000 �U Fully Planning C".mdkaT Arm; ao d Ra+Nowcotr Land% FASTER GROWING COUNTIES MUST DO MORE In addition to the basic requirements above, faster growing counties, and the cities within them must "fully plan" under the GMA. This means they must agree on countywide planning policies, identify urban growth area, and develop detailed comprehensive plans. COUNTYWIDE PLANNING POLICIES (CPPS) SHAPE REGIONAL POLICY (RCW 36.70A.040) Developed by a county and all the cities within, these policies help to ensure that plans within a county are consistent with one another, and that they work together to manage growth. CPPs may include: A mechanism to designate urban growth areas. Some counties have chosen to assign future annexation areas to adjacent cities. • A means to allocate countywide population targets to each city for incorporation into each city's comprehensive plan. Some counties have chosen to also allocate employment targets. Policies that address siting of public facilities of a countywide or statewide nature such as wastewater treatment facilities, highways, prisons, or airports. • Policies to address affordable housing. • Other locally important regional issues such as economic development. 4 COMPREHENSIVE PLAN ELEMENTS The GMA and WAC 365-196 provide specific direction on the elements that must be included in local comprehensive plans, and the contents of those elements. • The Land Use Element must include a land use map showing where and at what density future growth can develop. The element must also include policies addressing quality and quantity of groundwater, storm water run-off, and guidance for corrective actions to mitigate pollution of waters of the state (including Puget Sound), and consider strategies for promoting physical activity. The Transportation Element must inventory existing transportation networks and identify needed improvements, and those that will arise with future growth. This element must address transit, if applicable, and include a bicycle and pedestrian component. • The Housing Element must inventory existing housing supply, and describe how well it meets current housing needs. This element should ensure a variety of housing types will meet the needs of all economic segments of the population. The Capital Facilities Element must include an inventory of capital infrastructure such as water and wastewater systems to understand current needs and future demands. This element should estimate the costs of providing those facilities over the life of the plan with detailed financing information for the next six years. If a local government cannot pay for identified facilities it must re-evaluate the plan until the needs and the ability to pay are in balance. The Utilities Element must consider the infrastructure needed to provide electricity, natural gas, and telecommunications, whether provided by the local jurisdiction or by other providers. A fully planning county must adopt a Rural Element which defines rural land use patterns and policies to protect rural character. Both an Economic Development and a Parks and Recreation Element are part of the list of required elements but are required only if the state provides funding for their development. Many jurisdictions include these elements in their comprehensive plans to support grant applications and economic development activities. A jurisdiction may also include optional elements in its plan to meet unique local needs or preferences. Some include elements for sustainability, or urban design. Others have chosen to include an overarching "Vision Statement." THE COMPREHENSIVE PLAN MUST BE INTERNALLY CONSISTENT AND COORDINATED REGIONALLY Each element must be based on the same future land use plan map and population projection. The plan must be consistent with the countywide planning policies and must also be coordinated with plans of adjacent cities and counties. Each jurisdiction's development regulations, planning activities and capital budget decisions must be consistent with and implement the plan. (RCW 36.70A.120) STATE LAWS CHANGE The Growth Management Act is constantly changing. Be sure to review the latest guidance from Commerce on these planning requirements. FOR FURTHER STUDY A Short Course on Local Planning Resource Guide: Chapter 3, The Growth Management Act. • The Growth Management Act, Chapter 36.70A, RCW and WAC 365-196 www.gmhb.wo.gov • For best available science, see WAC 365-195- 900 through 925 Implementing Your Comprehensive Plan The GMA requires local government actions to not simply be "consistent" with the comprehensive plan but to implement it. There are three main ways to implement a comprehensive plan: regulations, spending priorities and other tools. YOUR JURISDICTION HAS CHOICES Your jurisdiction has broad flexibility and choices in developing and implementing your comprehensive plan. It is up to you to determine the regulations, spending priorities and other tools that are the right fit to help your community grow towards the vision. ZONING AND OTHER DEVELOPMENT REGULATIONS SHAPE THE COMMUNITY Development regulations are adopted into county and municipal codes. They are the rules for what kinds of development are allowed, what it will look like, and how development applications will be processed. These regulations provide predictability regarding future development. Local codes typically include the following components: Zoning codes implement the land use map, and provide standards on building height, set backs, and lot coverage. • Subdivision standards guide the layout of streets and lots. Public works standards specify the construction details of streets and other public facilities. Critical areas regulations protect people and property from hazards such as flooded areas and geologically hazardous areas, and protect environmentally sensitive areas such as coastal areas, wetlands or wildlife habitat. These regulations guide development away from places that are inappropriate for development. • Concurrency programs ensure that public facilities such as roads, water and sewer are provided to serve development. • Other regulations may implement specific comprehensive plan goals such as design guidelines, landscaping requirements or tree protection. 7 CAPITAL IMPROVEMENT PLANS SET PRIORITIES FOR INFRASTRUCTURE INVESTMENTS Nithin the needs set out in a Capital Facilities Element, a jurisdiction can choose to invest in a certain area to address a social issue, or encourage certain types of development. It can choose to make specific types of investments in infrastructure such as transportation or park facilities to support the community vision. CITIES AND COUNTIES CAN CHOOSE A VARIETY OF OTHER TOOLS TO ACHIEVE LOCAL GOALS. • Interlocal agreements between counties and cities may authorize sharing permitting or revenue in potential annexation areas. A detailed land use plan called a "planned action" for a specific sub -area such as a downtown or redevelopment area can reduce uncertainty for a developer, and encourage the types of development envisioned in the plan. • A transfer of development rights (TDR) program can be used to buy the potential to develop land from sensitive environmental lands or important resource lands and transfer the development potential into an urban area. • Multi -family tax exemptions can encourage development of multifamily residential units in targeted areas. Impact fees can help to pay for the added impacts of growth to the transportation, parks or schools systems, or the fire department. (RCW 82.02) • Streamlined permit review can encourage desired types of development. FOR FURTHER STUDY • A Short Course on Local Planning Resource Guide: Chapter 5, Development Tools and Techniques Commerce resources at www. commerce. wo. goy/growth • For planning topics, visit www.mrsc.org 8 Updating your Comprehensive Plan and Regulations Every eight years, the Growth Management Act requires each local government to take a look 20 years into the future, and make appropriate updates to the comprehensive plan and development regulations. (RCW 36.70A.130) WHY UPDATE YOUR PLAN? The periodic update will help you to do the following: Respond to changes in state law or new countywide or multicounty planning policies. Respond to new conditions or priorities for community infrastructure, and plan for potential or newly annexed areas. • Agree on priorities to renew or expand transportation or utility systems, review long- term financial projections and evaluate the ability to fund capital facilities. • Evaluate progress toward accomplishment of short-term goals in the existing plan. BIG PICTURE, LONGER-TERM ISSUES In addition to updating the required components of your comprehensive plan, your community may want to consider new or emerging issues over the next twenty years. • Changing demographics, including immigration and aging. • New forms of development and changing lifestyle preferences, rapidly changing technologies, such as on-line shopping and electric vehicles. • Impacts of climate change, such as sea -level rise, drought, wildfires, or severe storms. • Local food production, physical activity and health, and sustainability concerns such as local power production. UPDATE SCHEDULE The GMA includes a schedule which requires all counties and cites to review, and if needed, revise their comprehensive plan and regulations between 2015 and 2018. GMA Update Schedule: RCW 36.70A.130(5) Legend ` Update Year 2015 rM 2016 2017 2018 Department of Commerce GMS/GIS: July 2011 EXAMPLE STEPS TO UPDATE YOUR PLAN 1. Let your community know that you are in the process of a plan update, and when and how they should participate. 2. Review what exists now within your community, and look ahead to what will be needed in 20 years. 3. Make a list of items that need to be updated in the plan. Consider whether existing programs and regulations implement the plan effectively. 4. Work through the comprehensive plan and regulation amendments and ensure there are lots of opportunities for the community to participate. 5. Adopt your comprehensive plan and regulation update before the statutory deadline. FOR FURTHER STUDY • Keeping your Plan Current (Commerce) + AWC's GMA Comp Plan Conversation Starters videos www.awcnet.org Washington's Legal Framework for Land Use Planning: Early Land Use Planning Laws Long before the GMA was adopted, a variety of constitutional provisions and state laws enabled local planning. THE CONSTITUTIONAL BASIS FOR PLANNING The constitutionality of local governments regulating land use was tested and upheld in a 1926 U.S. Supreme Court decision. In Village of Euclid v. Amber Realty Co., the court found that government has a legitimate interest in regulating where certain land uses should occur, in what form, and under what process. The court allowed the Village of Euclid to designate specific areas of land for specific uses. This authority is now known as "zoning." The Washington State Constitution (Art. 11, Sec. 11) recognizes that state and local governments have authority to make police, sanitary and other regulations so long as they support public health, safety, morals or general welfare, and don't conflict with general laws. PLANNING AT THE SUBDIVISION LEVEL While some communities were master planned, many grew organically, or were "planned" at the subdivision level through application of Washington's subdivision statute. This law requires that before subdivisions are approved, appropriate provisions are made for: "The public health, safety, and general welfare, and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and school grounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school" RCW 58.17.110 (1969) EARLY PLANNING STATUTES CREATED TOOLS TO ALLOW LAND USE PLANNING. Washington State adopted laws before 1970 to allow land use planning at the local level. Local governments use one of these laws to authorize loca planning. 10 11 The Planning Commission Act (RCW 35.63) allows comprehensive planning by a city or county through a planning commission or planning agency. This was ,xtended to all code cities by RCW 35A.63. urban areas where public facilities can be efficiently provided. All development in counties and cities The Planning Enabling Act (RCW 36.70) is directed that plan under the GMA must be regulated by at counties. rules that are consistent with and implement the comprehensive plan. (Chapter 36.70A RCW, 1990) MAJOR LAND USE LAWS Washington State has three major statutes that overlay the basic planning laws and constitutional provisions. They provide processes for the planning and management of land and development. The State Environmental Policy Act (SEPA) requires a review of the impacts that a plan, regulation, or development project may have upon the natural and built environments to give decision makers full information about the potential consequences of a decision. SEPA applies to every comprehensive plan amendment, most amendments of municipal land use regulations, and nearly every development project. Every proposal or project subject to SEPA must document anticipated environmental impacts. This is done by using environmental checklists, threshold determinations, and specific, cientific analyses. For large or complex projects, an 'environmental impact statement" is often required. (Chapter 43.21 RCW, 1971) www. ecy. wa. gov/programs/sea/sepa/e-review. h tml The Shorelines Management Act (SMA) arose out of a citizen initiative and is intended to protect the ecological functions of shorelines of the state, plan for water -dependent uses, and to provide for public access. Shorelines of the state include marine shorelines, rivers, large lakes, and associated wetlands and flood zones. The SMA requires local governments with these shorelines to adopt a Shoreline Master Program (SMP), which identifies regulated shorelines and shorelands within their jurisdiction, permitted uses, and policies guiding those uses. The Washington State Department of Ecology must approve all SMPs, certain permits, and ensure that they are consistent with state policies and guidelines. (Chapter 90.58 RCW, 1971) www, ecy. wa. gov/programs/sea/shorelines/smp The Growth Management Act (GMA) requires focal governments to develop comprehensive plans ontaining specific information and analysis, with the goal of protecting rural and resource lands from sprawl. The GMA requires coordinated regional and local planning, directing growth to designated SOME FEDERAL LAWS THAT INFLUENCE LOCAL LAND USE PLANNING As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) Permit Program controls water pollution by regulating pollutant discharge from point sources such as pipes or manmade ditches into waters of the United States. The Washington State Department of Ecology's Water Quality Program is delegated responsibility by the U.S. EPA for implementing all federal and state water pollution control laws and regulations. A wastewater discharge permit is required for disposal of waste material into "waters of the state," which include rivers, lakes, streams, and all underground waters and aquifers. Permits stipulate specific limits and conditions of allowable discharge, and may require certain activities. www. ecy. wa. go v/programs/wq/wghome. html The Endangered Species Act (ESA) was passed by congress in 1973 to protect and recover imperiled species and the ecosystems upon which they depend. Under the ESA, species may be listed as either endangered (in danger of extinction throughout all or a significant portion of its range), or threatened (likely to become endangered within the foreseeable future). The Act is administered by the U.S. Fish and Wildlife Service (terrestrial and freshwater organisms) and the Commerce Department's National Marine Fisheries Service (marine wildlife such as whales and anadromous fish such as salmon). The law's ultimate goal is to "recover" species so they no longer need protection under the ESA. Cities and counties play a role in designating fish and wildlife habitat conservation areas and reviewing development proposals to consider threatened or endangered species. www.fws.gov/endangered/laws-policies/ www. nmfs. noaa. gov/pr/laws/esa/ 12 13 Constitutional Protections Community planning must balance many issues while creating a plan for managing growth. Constitutional rights and responsibilities must be respected. If you find yourselves with questions in these areas, ask your city or county legal counsel. DUE PROCESS Procedural due process means that before government makes changes that significantly affect individual or property rights, citizens receive notice that a change is being considered, and they have the opportunity to comment. Procedural due process is most important as a part of permitting actions, it also applies to meetings. Failure to give proper notice of a meeting could invalidate any action taken at the meeting. Substantive due process means the right to be subject to rules that are reasonable in aim and scope and that are appropriate for municipal regulation. Any regulation should answer "yes" to the following questions: 1. Is the regulation for a legitimate public purpose such as protecting public health, public safety or water quality? Local regulations may only address only issues that are the proper domain of government. 2. Is the regulation appropriate to accomplish the purpose? For example, if the goal is to protect water quality, a requirement to build a house a certain distance away from a stream may be an appropriate way to meet the goal. 3. Is the regulation reasonable? Continuing the example, is the size of the setback appropriate to protect water quality, and based on the characteristics of the lot? Can the property owner reasonably use his or her land? In cases where regulations may appear to conflict with the constitution, regulations should include an "out" (variance) for situations where otherwise constitutional regulations apply to a specific applicant in an unconstitutional way. 4. Is the regulation clear and easy to apply? A proposed regulation must be clearly understood and fairly applied. Design guidelines can be particularly troublesome if they use subjective standards and words such as "harmonious", "in good relationship with the surroundings", or "interesting", which are difficult to enforce. Using pictures of acceptable building forms or window treatments can help to provide more clarity. A vague regulation can be invalidated if appealed to court. TAKINGS Both the U.S. Constitution (4th Amendment), and the Washington Constitution (Article 1, Section 16) state that no private property shall be taken (or damaged) for public or private use without just compensation having been made first. Where local governments have authority over the use of private property, they must be sensitive to the constitutional limits on their authority. Takings claims arise in three circumstances: 1. Physical occupation or damage: Property has been physically invaded or appropriated through condemnation or an occupation that has a significant impact on the value of the property. Examples may include occupation for a stormwater facility or a trail connection. This normally requires compensation, unless it can be shown as a need directly related to the particular project. 2. Regulatory takings: Zoning or other changes to a general regulation which decrease or change the development potential of a property to meet the needs of the larger community is not considered a taking. Courts generally uphold regulations that protect public health and safety or environmental concerns, even when these regulations substantially reduce property value. However, if a regulation deprives the owner of "all economically viable use of a property" or "investor -backed expectations" (even if temporarily) the owner may be entitled to just compensation. For this reason, regulations should generally have som exceptions to allow reasonable use of property. 14 15 Exactions as a condition of development: In order to impose conditions on land development, a local government must do the following: • Show a nexus, or identify a problem the condition is designed to address. "Nexus" means that the condition imposed must relate to and help solve the problem created by the development. • Show that the proposed development will create or contribute to the problem. • Show that the condition will solve or alleviate the problem. • Show that the proposed condition is "roughly proportional" to the problem created or contributed by the proposed development. For example, if ocean views are protected by the comprehensive plan or regulations, and a roposed office building would cut off that view, the mitigation condition must address the loss of view. Thus, a condition requiring a bigger side yard setback would have nexus because it allows more view, whereas a condition to build frontage improvements would not. To avoid takings claims pay attention to these warning signals: * Does the regulation or action result in a permanent or temporary physical occupation of property? • Does the regulation or action deprive the owner of all economically viable uses of the property? • Does the regulation or action deny or substantially diminish a fundamental attribute of property ownership? • Does the regulatory action have a severe impact on the landowners economic interest? OTHER CONSTITUTIONAL PROTECTIONS The constitution allows some rights and freedoms that regulations must not restrict. • The Equal Protection Clause (EP) is part of the 14th Amendment to the US constitution. The 1868 clause provides that no state shall deny to any person equal protection of the laws. In the planning context, this typically arises in enforcement actions. In this case, cities and counties cannot be selective in choosing how or when to enforce regulations, and must apply them equally to all. Religious freedoms allow individuals to practice their religion. Synagogues, temples, or churches may be required to comply with parking and building codes, hours of operation, for example, but the regulation must not interfere with the right to practice religion. Freedom of expression allows individuals to express themselves in their own way. Regulations may address aspects of expressive media such as the size of signs or the location of adult entertainment establishments, but must not interfere with the right to freedom of expression. 64.40 DAMAGES FOR PERMIT PROCESSING Owners of a property interest who have filed an application for a permit may file an "action for damages" under RCW 64.40 to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or knowingly causes unlawful delay. VESTING Washington State's vesting rules generally entitle a property owner to use property according to the rules and regulations in place at the time a complete application for a building permit or a subdivision is submitted. The purpose of these rules is to "vest" applicants with the right to proceed with their project even if the regulations affecting the project changes prior to final approval. Washington's vesting rules are unusual among the states. 16 17 MORATORIA A moratorium is a government pause on development until a particular issue has been studied and addressed. Cities and counties can authorize a moratorium on accepting development applications for six months at a time. Examples include a proposed change in zoning or when a community faces a utility - related shortage. A moratorium cannot be used as a long term land use tool. FOR FURTHER STUDY • A Short Course on Local Planning Resource Guide: Chapter 4; Constitutional Rights and Responsibilities in Planning • Moritoria Handbook for Municipalities, Association of Washington Cities, Risk Management Services Agency • Advisory Memorandum: Avoiding Unconstitutional Takings of Private Property, Rob McKenna, Attorney General Dec. 2006 • www.mrsc.org/subjects/legal/takings.aspx Open Public Meetings and Public Records Acts "The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instrument they have created." Purpose statement of RCW 42.30.010 PUBLIC OFFICIALS REQUIRED TO TAKE TRAINING In 2014, a new law requires every member of a governing body (elected officials, advisory committee members) to take Open Public Meetings Act training within 90 days of being elected or appointed, and at least every four years, as long as they remain in office. All elected officials and public records officers must also take Public Records Act training. (RCW 42.30.205) OPEN PUBLIC MEETINGS ACT (OPMA) BASICS A meeting is defined as any regular scheduled meeting or special meeting of a governing body such as a council or a planning commission in which a majority of the body is present. OPMA applies to multi -member councils, commissions or boards when they hold hearings, take public comment, deliberate or discuss, review or evaluate, or make decisions. (RCW 42.30.020) The OPMA requires that: All meetings must be advertised as to the place, the time and the agenda items at least 24 hours before the meeting. Extra, special or moved meetings require special notice. RCW 42.30.080(4) All meetings must be open to the public. Inviting public comment is good practice, but is not required. Group emails, or a series of small meetings adding up to a quorum may be considered meetings and are subject to the OPMA. (RCW 42.30.030) All discussion about governmental business must take place within the context of an open meeting. A small number of specific exceptions exist for discussion of sensitive topics, but decisions must be made in a public meeting. 18 19 Failure to comply with the OPMA may result in fines, invalidated actions, delayed process, and loss of the `#ic trust. TIPS FOR AVOIDING OPMA CHALLENGES • Avoid socializing as a group outside of a meeting • Avoid traveling together as a group unless the trip is advertised as a meeting and all are invited • Don't "reply all" to group emails. THE PUBLIC RECORDS ACT (PRA) BASICS The purpose of the PRA is free and open access to public records of state and local governments. A public record is any state or local record relating to the conduct of government which is prepared, used, or retained by any state or local agency. Public records may include letters, documents, maps, sound recordings, or emails including any government business conducted on personal electronic devices. Local governments must appoint a public records officer and must adopt procedures to protect public records from damage or disorganization, provide full ;cess to public records, and provide timely action on public records requests. TIPS FOR RECORD KEEPING • Create clear records. Ensure electronic records (email, websites) are carefully recorded. It is best to use a separate email address for official business. • Archive important records and destroy other records after they have met timelines in the Local Government Record Retention Schedule. FURTHER STUDY • A Short Course on Local Planning Resource Guide: Chapter 2, the Public Process • Washington State Attorney General videos atg.wa.gov/OpenGovernmentTraining.aspx • The Open Public Meetings Act mrsc. org/subjects/legal/opma. aspx • Public Records Act for Washington Cities, Counties and Special Purpose Districts mrsc. org/subjects/legal/prd/prd. aspx Appearance of Fairness Doctrine When boards, commissions, or councils are required to hold hearings, they must not only be fair, they must also be free from even the appearance of unfairness. This doctrine applies only to quasi-judicial actions of local decision-making bodies. These are actions that determine the legal rights, duties, or privileges of specific parties in a hearing such as development permit applications, site-specific rezones, subdivisions, variances, special, or conditional use permits. This doctrine does not apply to legislative actions such as comprehensive plan amendments, or area -wide rezones. The basic standard is that if a person has an interest of any kind in an issue or takes evidence improperly outside of a hearing, the proceeding can be invalidated or delayed. For example: • You have a business, social or familial connection to a matter in front of the board. Someone approaches you outside of a hearing with information supporting or opposing a pending matter. This is called ex -parte communications. Tell the person you could be disqualified from participating in the hearing, and encourage them to make their point in writing or at the hearing to all of the people on the board. RCW 42.36.060 APPEARANCE OF FAIRNESS CONCERNS CAN BE AVOIDED BY THE FOLLOWING PROCEDURES: Poll the board at the start of each hearing to see if anyone has information related to appearance of fairness. • If so, ask the audience if anyone wishes to voice an objection to your participation. • If there are objections, you should recuse yourself from participation and leave the room. FURTHER STUDY • The Appearance of Fairness Doctrine mrsc. org/subjects/legal/aofpage. aspx • Knowing the Territory: Basic Legal guidelines for Washington City, County and Special Purpose District Officials. MRSC, October 2013. 20 21 Roles in the Planning Process There are many groups of people that contribute to the process of land use planning and the development of the community. This collective experience and knowledge will help your community make wise and time -tested decisions. Elected officials are the legislative body of a city or county. They review policy recommendations from planning commissions regarding plans and development regulations, and only they have the authority to adopt plans and regulations. Elected officials also make decisions about how to fund capital facilities, and where to focus staff effort. Planning commissioners are appointed by the elected body to represent broad interests of the community. They serve as a sounding board for new ideas, promote community interest in planning, and provide leadership in citizen participation programs. Planning commissioners review plans and regulations and generally make recommendations to their elected officials. Staff or consultants manage planning processes. They: • Research and present information in staff reports, and consult with jurisdiction's legal counsel ^• Prepare draft plans, policies, and ordinances • Handle required public notice of meetings, actions, and keep the record of the process • Process administrative permitting applications, and enforce regulations Most local governments hire Hearings Examiners to hear quasi-judicial development proposals and appeals of administrative land use decisions. Other advisory groups such as a Parks Board, Utility Commission, or other advisory committee may be appointed to provide broad perspective on plans and regulations. Regional agencies or special districts such as school sewer or water districts, who need to coordinate on land use and capital facility planning issues, may also participate. The public includes a diverse collection of individuals, or groups such as the Chamber of Commerce, environmental groups, private utilities, or neighborhood groups. The ideas and perspectives of all of these groups are important to developing a vision, policies, and implementation strategies that represent the broad public interest. Types of Planning Decisions There are two main types of local government land -use decisions. LEGISLATIVE DECISIONS MAKE THE RULES. These include amendments to the comprehensive plan, to development regulations, or to area -wide zoning. Recommendations on these changes are generally made by the planning commission, but are adopted by elected officials. Public process and citizen participation are required. Decisions may be appealed to the Growth Management Hearings Boards within 60 days of the decision. For partially -planning jurisdictions, decisions may be appealed to Superior Court. ADMINISTRATIVE AND QUASI-JUDICIAL DECISIONS APPLY THE RULES. 1. Administration decisions: Staff are authorized to permit or deny proposals based on how an applicant meets established zoning and development standards. Examples generally include building permits or short plats. Quasi -Judicial decisions: A planning commission or Hearing Examiner acts as a judge, weighing evidence and adopting findings and conclusions. In these cases, the Appearance of Fairness Doctrine applies, and all communications on the proposal must be disclosed. Examples of quasi- judicial actions include subdivisions, conditional use permits or variances. The Local Project Review Act revised the way permits are to be processed in Washington State. Strict time limits are imposed for processing permit applications. For any quasi-judicial action requiring a public 22 23 hearing, only one public hearing is allowed. (Chapter 5.70B RCW, adopted in 1995) Appeal processes for administrative and quasi- judicial actions are established locally and generally have a strict time limit. Appeals may be taken to a different local decision body, such as a city council, to a hearings examiner, or to Superior Court under the Land Use Petition Act (RCW 36.70C) . Appeals to Superior Court must be filed within 21 days of the decision. THE GROWTH MANAGEMENT HEARINGS BOARDS Although the GMA permits direct review by the courts, the Legislature established the Growth Management Hearings Board and authorized that this Board will "hear and determine" allegations that a city, county, or state agency has not complied with the goals and requirements of the GMA, and related provisions of the Shoreline Management Act (SMA) RCW 90.58, and the State Environmental Policy Act (SEPA) (RCW 43.21C). The Board provides a less costly and expedited review of county and city comprehensive plans and development regulations. ie Board's decisions must be made 180 days after a petition is filed with the Board. In order to recognize regional differences, the Legislature created three Growth Management regions with Board members appointed from Central Puget Sound, Eastern and Western Washington. (RCW 36.70A.250-302) www.gmhb.wa.gov/default.aspx FOR FURTHER STUDY • A Growth Strategy for Washington State: Final Report, www. sos. wa. gov/legacyproject/pdf/OH852. pdf * A Growth Strategy for Washington State (1990); psrc. org Growth Management Hearings Board; gmhb.wa.gov Public Participation and Effective Meetings Public involvement is an essential foundation of planning. When the public is engaged in the planning process, community decisions better reflect the shared values of the community as a whole. A good process helps contentious issues be understood, discussed, and resolved through the planning process. PUBLIC INVOLVEMENT IDEAS When there is no specific proposal, it may be difficult to get public input on general matters such as a legislative recommendation for change. Examples of outreach that may attract public participation include: • Use of traditional media such as placing legal or display ads, and developing relationships with the local radio or print media. * Public open houses, workshops, or meetings.. Use of social media such as websites, Facebook, building email lists obtained from your own lists, the Chamber of Commerce, home -owner associations, faith -based and civic organizations, or other groups. • Visit Chamber of Commerce meetings, Kiwanis, Rotary, or other community meetings. • Place information booths at community events. Insert a flyer in utility bills or city newsletters. TYPICAL STEPS IN THE LEGISLATIVE PROCESS Amendments proposed: Changes to policies, regulations, or land use are proposed by officials or stakeholders. Professional review: Staff or consultants provide a staff report reviewing proposed changes against established criteria, and may make recommendations based on their analysis. The staff report should include: • A concise explanation of the proposal. • A review of applicable criteria, comprehensive plan goals and policies, regulations, state law, and constitutional limitations. 24 25 • An analysis of the factual information relevant to the decision. Public Review: The public is invited to provide comments on the proposed amendments. IF YOUR ARE A PLANNING COMMISSIONER You should prepare to hear public comment. Educate yourself in the details of the items at issue so you can understand public concerns. At a public hearing: • Listen and be patient. • Understand which groups are providing comment and who is not represented. • When necessary, set time limits for speakers, or organize testimony, so everyone has a chance to participate. • Watch your body language, and don't take things personally. You may hear compelling testimony, but remember your job is to apply the decision criteria, based on the facts in the record. The relevant criteria are identified in code for the type of decision before the commission or council. Watch out for: • Stories or anecdotes with limited context. • Generalizations based on a subset of information or generalizations about a group. • Assertions of fact which may not be entirely true. Your recommendations: Your recommendations must be based on the criteria affecting the decision, and not just on how many people argue for a certain choice. They should reflect community values, consider professional advice, and should be the result of thoughtful deliberation. Elected officials ultimately make the final decision and rely on your rationale for the recommendation. The Record should include: • The application and supporting documentation, including the SEPA determination. • Staff report, including references to decision • criteria and local policies you used to make the decision. • Minutes or a verbatim record of any hearing, and any exhibits offered during the hearing. • Findings supporting the reasons for approval or disapproval of the proposal. STEPS FOR QUASI-JUDICIAL PROCESSES Your planning commission may be involved in quasi- judicial processes. A quasi-judicial process is different than a legislative process because: • The proposal is site specific. • Commission members must not discuss the project outside of the hearing, and must disclose any prior information or ex -parte contact about the proposal. • State law requires review and decision within time lines identified within the local code. IF YOU ARE MEMBER OF THE PUBLIC, REMEMBER: • Planning processes take time, and you are important part of the process. • Stay informed and find out the opportunities and timing for public input. If possible, attend meetings that relate to the subject you are interested in. • Be concise and respectful when testifying. Signing a petition does not replace participating in other ways. Fundamental choices are made at the time of planning, not erre ti . It's too late to challenge permitting decisions that comply with adopted regulations. FOR FURTHER STUDY • New Commissioner Handbook www.mrsc.org/publications/textcmhb.aspx • A Short Course on Local Planning Resource Guide: Chapter 2, Citizen Participation and the Public Process 26 27 Learn more about planning ro learn more on these topics, read the Short Course on Local Planning Resource Manual, available for download on the Short Course Web page at www. commerce.wa.goy/growth. Review the resources listed in each section of this booklet. When available, attend a short course in person where you can get more depth on these topics, ask questions of presenters, and experience an exchange of ideas. With this foundation in the Short Course content and the basic structure for land use planning, you might want to learn more detail about specific planning topics. • Attend special Short Courses on special topics, or quarterly Planner's Forums organized by the Department of Commerce. • Attend planning conferences organized by the Planning Association of Washington and the Washington Chapter of the American Planning Association. Dive into the wealth of planning resources available on the Web. Start with the Municipal Research and Services Center (MRSC), which is a private, non-profit organization based in Seattle, Washington. The MRSC is a valuable source of information for local governments. www.mrsc.org Thank you again, for your engagement in local planning, and for investing your time in your community's future. Acknowledgments This publication is a product of the Department of Commerce in association with the partners listed below. We thank all the speakers, and advisors of this new material for the short course. Commerce partners with two state planning associations to support planning education in Washington. The Planning Association of Washington (PAW) is a grassroots educational organization formed in Washington in 1963. PAW created the Short Course in 1977, and continues to be a key partner with Commerce in sponsoring Short Courses in Washington communities. www.planningpow.org The Washington Chapter of the American Planning Association (APA Washington) is a local chapter of the national APA. APA Washington members are frequent speakers at on-site Short Courses and greatly supported the development of this publication. www.washington-apa.org Commerce also partners with municipal risk pools, who have a strong interest in ensuring their members have the training they require to avoid risk. Look for additional training opportunities at: • The Washington Cities Insurance Authority www.wciapool.org • Association of Washington Cities www. awcnet. org/PropertyLiability/ AboutRMSA/aspx Washington Counties Risk Pool www.wcrpJnfo/ Date of Training: Location Notes: This document is provided by Growth Management Services, Washington State Department of Commerce, in association with partners in the Short Course on Local Planning. DISCLAIMER This document is intended to give you a brief overview of the topics included in the Short Course on Local Planning and is not intended as legal advice. If questions related to this material arise in your community, consult your city or county planning staff and legal counsel. PAWPlanning ss iatio of Washingtor SII aj RVom�,a��,u M'n ASSOCIATION OF WASNINGTOR CiTiES IC R I S K MANAGEMENT SERVICE AGENCY "- Department of Commerce innovation is lin our riature. 1011 Plum Street SE, Olympia WA, 98504-2525 4i'iha�;rl�P�d T I�Pu�Y�°Yf"i�"�h,ft?�w�PI� U 6sfl�JP�dN�i�IIe��°�"7I Updated September 2015 i 1%�% MRSC Public Hearings This page provides an overview of the legal requirements for conducting public hearings in Washington State and describes the basic procedures that should be followed for a proper public hearing. Overview Public bodies, such as city councils, boards of county commissioners, and planning commissions, are sometimes required by state law to hold public hearings. Since the issues addressed in these public hearings are frequently contentious, may involve due process rights of private parties, and generate litigation, it is important to know and follow proper hearing procedures. Because these procedures are not generally spelled out in the statutes that require hearings, there is no ready guide for public bodies to follow when conducting hearings. While following proper hearing procedures may not eliminate litigation over the issues addressed in hearings, it will help prevent having the decisions made following public hearings overturned by the courts on procedural grounds. Following proper procedures also helps insure that public hearings are conducted fairly. i .,iw Is a Public Hearing Different from a Public Meeting? A public meeting generally occurs whenever a quorum of a public body, and sometimes less than a quorum, meets together and deals in any way with the business of that body. Public meetings, whether regular or special meetings, are governed by the procedures of the Open Public_Meetino Act in chapter 42.30 R UO . Although the public often is allowed to participate in regular or special meetings, public participation is not required by state law. Two basic legal requirements of a public meeting are that the public be notified and be allowed to attend. Although a public hearing is also a public meeting, or occurs in the context of a public meeting, the main purpose of most public hearings is to obtain public testimony or comment. A public hearing may occur as part of a regular or special meeting, or it may be the sole purpose of a special meeting, with no other matters addressed. Tapes of Public Hearings There are two types of public hearings, legislative and quasi-judicial, and it is important to understand the distinction between them. Legislative public hearings. The purpose of a legislative public hearing is to obtain public input on legislative decisions on matters of policy. Legislative public hearings are required by state law when a city or county addresses --uch matters as comprehensive land use plans or the annual or biennial budget. Legislative public hearings are ,"rally less formal than quasi-judicial public hearings. They do not involve the legal rights of specific, private parties in a contested setting, but rather affect a wider range of citizens or perhaps the entire jurisdiction. The wisdom of legislative decisions reached as a result of such hearings is not second-guessed by the courts; if challenged, they are reviewed only to determine if they are constitutional or violate state law. For example, a court will not review whether the basic budgetary decisions made by a city council or county commission were correctly made. On the other hand, comprehensive plans in Growth Management Act (GMA) counties may be reviewed by a growth management hearings board, and maybe later by a court, for consistency with the GMA. Quasi-judicial public hearings, unlike legislative ones, involve the legal rights of specific parties, and the decisions made as a result of such hearings must be based upon and supported by the "record" developed at the hearinf Quasi-judicial hearings are subject to stricter procedural requirements than legislative hearings. Most quasi-judiaal hearings held by local government bodies involve land use matters, including site-specific rezones, preliminary plats, variances, and conditional uses. When Are Public Hearings Required? A public hearing is required only when a specific statute requires one. For a list of the city, town, and county statutes, see for Which p lk; Hggring i u#r Of course, a local government may hold a public hearing in other instances, such as when it desires public input on a sensitive or controversial policy issue. If you have any question as to whether a public hearing is required for a particular matter, we recommend that you consult with your city attorney or county prosecutor. What Procedural Requirements Apply to Public Hearings? Notice Requirements Some form of public notice is required for all public hearings. If the statute that requires a public hearing in a particular instance identifies the type of notice to be provided, those notice requirements must be followed. Such notice requirements may include publication in a newspaper, posting on and/or near real property that may be affected by the matter being addressed in the hearing, and mailing notice to specific parties. Since all public hear are considered public meetings under the Opgn Pubtig Me,ctings Act, the notice requirement of that law must be followed. A city or county may, of course, choose to provide any additional notice beyond whatever statutory notice requirements may exist. If the statute requiring a public hearing does not specify the type of public notice to be provided, a good general rule to follow is to provide notice designed to alert those who may be affected by the proposed action, to inform them of its nature, and to allow them enough time to prepare for and attend the public hearing. The method of providing notice can include publication in the official newspaper, posting on the jurisdiction's website and in other places such as a community bulletin board, mailed notice, and other means that a jurisdiction typically employs. Given that people now get much of their information from the Internet, posting on the jurisdiction's website would be an effective method of notification. If the timing of the notice is not specified by statute, the notice should be provided a number of days before the hearing, and a week to 10 days generally is sufficient. In some circumstances, notice of less than a week may be adequate. Ideally, each city and county should enact an ordinance that sets out the notice to be provided for public hearings when notice provisions are not identified in the statute requiring the hearing. Appearance of Fairness The applies to quasi-judicial hearings, not to legislative hearings. It is permissible, __ even expected, that members of a public body will have biases and will be lobbied by constituents when the matter is legislative. Different rules apply to quasi-judicial hearings, where a decision maker is not permitted to prejudge or have biases regarding or a matter. Ex parte communications - communications with members of the decision- making body outside the context of the public hearing - are prohibited in quasi-judicial proceedings. More information on the appearance of fairness doctrine can be found in the MRSC publication, The Appearance of I M jai I %al,! ' vision Based on the Record A public body's decision on a quasi-judicial matter must be based on and supported by the "record" in that matter. The "record" consists of all testimony or comment presented at the hearing and all documents or exhibits that have been submitted in connection with the matter being considered. All documents, including maps, drawings, and staff reports, should be admitted as numbered exhibits during the public hearing. All quasi-judicial hearings should be tape recorded. If a quasi-judicial decision is appealed, the court will require a transcript of the hearing, which can be made from the tape. Tape recording of legislative hearings is not required. Where Should a Public Hearing Be Held? Council or commission chambers, where public meetings are usually held, will often be the best place to hold a public hearing. If a large crowd that cannot be accommodated in those chambers is anticipated, a larger room should be found. Whatever room is used should be well lighted and ventilated. A microphone (on a podium, if available) should be provided to help insure that all testimony is heard and, if necessary, adequately recorded. Legislative Hearing Procedures State statutes do not specify how public hearings, whether legislative or quasi-judicial, should be conducted. Because le^;slative hearings are generally informal, the main concern is to provide an opportunity for all attending members o. _, ie public to speak if they so desire. Time limits should be placed on individual comments if many people are intending to testify, and the public should be advised that comments must relate to the matter at hand. Order and decorum should be maintained at all times. The "ground rules" for the conduct of the hearing should be stated by the chairperson or presiding official at the beginning of the hearing. Quasi -Judicial Hearing Procedures Because due process protections apply to quasi-judicial matters, quasi-judicial hearings are more formal than legislative hearings. However, they should not be as formal as a court proceeding. Keep in mind that quasi-judicial decisions may be overturned by a court if proper procedures are not followed, even if the decision itself is a "correct" one. Thus, it is important to establish in advance written procedures to guide the conduct of quasi-judicial hearings, both for the sake of the public body holding the hearing and for the attending public. Copies of the procedural rules should be made available prior to the hearing to members of the public. Agenda The adopted procedures should include a standard agenda. A typical agenda for quasi-judicial land use hearings might include the following: Introduction. The presiding officer introduces the matter being heard and announces the ground rules for the _wring. The presiding officer should also address the appearance of fairness doctrine by asking if any members of the hearing body have any interest, conflict, or bias that would preclude their participation and if any members have had ex parte communications regarding the matter at issue. See the discussion below concerning a "script" for the presiding officer to follow. • Staff report. Planning staff describe the application being considered; identify and discuss and technical studies; describe possible alternatives; and, if appropriate, make a recommendation concerning the proposal. Members of the decision-making body should ask questions of staff at this point. • Applicant presentation. The applicant, who has the burden of proof to show compliance with applicable laws— presents presents testimony and evidence to support the application. The applicant may have expert witnesses, who should speak at this point. The applicant should addresses any issues raised by staff -proposed conditions. Members of the decision-making body should ask questions. Public testimony. Both proponents and opponents of the proposal are allowed to speak. Typically, proponents speak first, followed by opponents, pursuant to ground rules previously announced (either at the beginning of the hearing or at the beginning of the public testimony stage). People testifying should give their names and addresses. Some jurisdictions also require speakers to provide this information in writing at the beginning of the hearing, and speakers are called according to the order on the sign-up sheet. Speakers should be given time limits and cautioned to avoid repetitious or irrelevant comments. They should not be allowed to make personal attacks. Note that quasi-judicial bodies are not governed by the formal rules of evidence established for the courts. Comments and exhibits should be allowed as long as they have some relevance to the matter at hand. However, attempts to exercise too much control over seemingly irrelevant comments or exhibits could be perceived as censorship of legitimate public comment. If in doubt about an exhibit, admit it and decide about its reliability or relevance later. • Should testimony be taken under oath? Testimony at a quasi-judicial hearing should be taken under oath. However, it is not necessary that individual oaths be taken. A group oath given by the clerk or the presiding officer is sufficient and saves time. Should cross-examination be allowed? As a general rule, cross-examination is not appropriate in a quasi- judicial hearing before a local government body. However, there may be instances where it should be allowed. Where the hearing assumes a distinctly adversarial posture, the proponents and opponents are represented by legal counsel, expert witnesses are called, or complex technical information is presented, cross-examination should be permitted if requested. Cross-examination can be conducted by one representative, presumably legal counsel, from each side of the matter. When requested by a party, cross-examination of planning staff who wrote and presented the staff report should also be permitted. • Rebuttal testimony. Some jurisdictions allow the applicant to respond to any testimony presented. Some also allow rebuttal by staff and by opponents. Rebuttal preferably should not include new testimony or evidence. • Questions from the hearing body. The hearing body may wish to direct questions to speakers either during testimony, or at the close of public testimony. • Close the hearing. Sometimes it becomes necessary to continue a hearing to another day if there are more people wishing to testify than can be accommodated in one evening or afternoon. A hearing should not be allowed to last too late into the night since many of the public participants will find it necessary to leave before its conclusion. record is closed at the conclusion of the hearing, and no other testimony or evidence should be considered by the hearing body. Deliberations and the vote on the application can take place immediately after the close of the public hearing or at some future meeting. Hearing Script The presiding officer may find it helpful to have a written "script" to follow for opening and presiding over the hearing. A typical script might include the following: • all to order; open the hearing. • Introduce self, hearing body, and staff. • State the purpose of the hearing, including a brief description of the application and the action that the hearing body may legally take on the application. • Address appearance of fairness issues. Explain briefly what the Mair doctrine requires. Ask members of the hearing body: • if they have any interest in the property or the application, or if they own property within a certain distance (e.g., 300 feet) of the property subject to the application; • if they stand to gain or lose any financial benefit as a result of the outcome of the hearing; • whether they can hear and consider the application in a fair and objective manner; • if they have engaged in any ex parte communications with either proponents or opponents of the application, and, if so, ask them to place on the record the substance of any such communications so that interested parties have the opportunity at the hearing to rebut the communications. k members of the audience if they wish to challenge on appearance of fairness grounds participation in the matter by any member of the hearing body, including the reasons for the request. Any member challenged should be given the opportunity to either disqualify or refuse to disqualify him- or herself. Any member disqualified based on appearance of fairness grounds must leave the hearing room and must not participate further concerning the application. • State the ground rules for the hearing and the manner in which it will proceed. • Administer the oath to all those who may testify, as a group (or have clerk or other appropriate official administer the oath). • Ask for staff to give a report on the application; insure that all documents, charts, maps, etc. are introduced as exhibits, with a number assigned to each exhibit. • Ask for applicant to comment on the application, followed by the testimony of any technical experts in support of the application. • Ask for any public testimony on the application (first by proponents and then by opponents). I*ate any rules regarding public testimony, such as: • all speakers must speak into the microphone and give their names and addresses; • all comments should be addressed to the hearing body, should be relevant to the application, and should not be of a personal nature; • identify time limits, if any, on speaking; • avoid repetitive comments; • if there are a large number of speakers, including many who are part of groups or organizations, ask for a representative to speak on behalf of the organization or group; • unruly behavior, such as booing or hissing or harassing remarks, is prohibited. • Ask if everybody understands these rules. • Ask for closing or rebuttal comments from the applicant, and, if desired, from the public. • Ask for additional staff comments. • Ask for questions from members of the hearing body (these questions may also be authorized to occur as testimony is presented). • Close the hearing and state what steps are to occur next regarding the application. Deliberations Deliberations on a quasi-judicial matter can occur following the public hearing or at some other time. If the matter is a complex one, it is best to postpone deliberations until members of the hearing body have had time to review the exhibits and perhaps listen again to some or all of the recorded testimony. Be careful not to delay the deliberations and eventual decision beyond any applicable statutory timeliness. Although deliberations may occur in open session, the Open Public Meetings Act exempts from its coverage that, .rt of a meeting which relates to quasi-judicial matters between named parties. If the deliberations are held in an open meeting, comments from the audience should not be permitted. Deliberations by the hearing body are not considered part of the record for purposes of judicial review of the decision. Vote or Decision The vote on the application must occur in open session. After the vote is taken, the hearing body should direct the staff or legal counsel to prepare, based upon instructions from the hearing body, findings of fact and conclusions of law in support of the decision. After preparation of the findings and conclusions, the hearing body must vote to approve them or to send them back for modification. Tips for a Successful Public Hearing The following should be kept in mind to help insure that a quasi-judicial public hearing runs smoothly, is error -free, and is fair: • Be prepared! Don't come to the hearing cold. Review the application and supporting documentation, including SEPA documents, and any staff -prepared documents and recommendations prior to the hearing. • Prior to the hearing, make sure that timely and proper notice was provided. • Have clear ground rules for conducting the hearing, and make printed copies available to the public. • Make sure that all appearance of fairness issues are addressed. • Be sure that the recording equipment is working properly and that there is an ample supply of blank tapes. Stop any testimony during tape changes. • Keep order in the hearing, limit testimony where necessary, but maintain an impartial attitude. • Make sure all witnesses identify themselves on the record and that all exhibits are properly identified for the record. Testimony that references an exhibit should identify the exhibit number. ake sure that every person or group (via a spokesperson) that wishes to speak has that opportunity. • If the hearing is going on too long, adjourn it and continue it to another day. Ask questions, ask questions ... of staff, legal counsel, the applicant, and people who testify. • Make sure your decision is clear and understandable, is based on evidence included in the record, and is consistent with the legal standards that apply to the application. Recommended Resources Last Modified: February 19, 2016 © 2015 MRSC of Washington. All rights reserved. P'r vacy &Term REQUIRED ELEMENTS LAND USE APPLICATIONS --Future Long Plats Site -Specific --- — -- FX- e"v -45wriprelverisle Plan rea-wide e Area -wide Development Re—zone Land Use Map i Plan Future Land Use Map Rezone Regulation Amendment! Amend ment Amendment QUASI-JUDICIAL LAND USEACTIONSX X X - Site -Specific Applications X X X Has a Property Owner or Applicant Other Than the City X X )F . . ......................... ... . ...... . . Generally Involve Approval of a Land Use Application or Project X X Permit The Applications Require Posting of the Subject Property& Public X X X . . . .... . . .............. Notice with a 20 -Day Public Comment Period Environmental Review May Be Required X X X II X X X Planning Commission Public Hearing Required X X X X ............ . . . ..... -X Appearance of Fairness Disclosure Required ........ . ......... . ..... . X .. —X. X x Commission Should Not Have Any Ex Parte Contacts X X Open Public Meetings Act Compliance X X X — ------. . .. . . . ...... . . . ... .. . ..... . ....... . ....................... . ..... X ................... . . . X ......... . X Planning Commission Reviews Site and Application Specific Criteria - T X X For Approval and Balances Public Comment Against Recommended Mitigation to Address Areas of Application Deficiency The Decision or Recommendation Applies Existing Policies or Law X X X The Hearing Seeks to Reach a Fact -Based Decision Between Distinct X X X Alternatives --f.. . ....... ................... . ........ .. --- - ------------- ---- - The Decision Hasa Greater Effect on a Limited Number of Specific X x x Persons and a Lesser Effect on the General Community at Large Planning Commission Makes Recommendation to Yakima City X X ,:ouncil The Planning Commission's Recommendation to the City Council X X X Should Be Based Entirely Upon the Record and Not Contain Any Facts or Evidence Not Presented During the Open Record Public Hearing LEGISLATIVE LAND USE ACTIONS X X X Land Use Application GenerallyInvolvesa Development Regulation, X x X Area -Wide Rezone, or Comprehensive Plan Amendment or Comprehensive Plan Update Applications Are of Area or Citywide Significance X X . . . . .......... . .... - X ThCity is Generally the Applicant X X - X The Application Does Not Involve or Require A Permit X X X The Application Does Not Require Posting Upon Property, But X X X Requires Public Notice In a Newspaper of General Circulation Coupled with a 20 -Day Public Comment Period Environmental Review May Be Required X X X X X X Planning Commission Public Hearing Required X X X X X X Appearance of Fairness Disclosure Required X . . . ..... . ...... .. .... X ...... . .... ............ . ... X Commission Should Not Have Any Ex Parte Contacts X X X x Open Public Meetings Act Compliance X X X X .... X . . ..... . ................ X Planning Commission Reviews the Goals, Policies, and Other X X X Planning Documents in Determining Whether the Proposed Change .iIhould Be Approved The Decision Has a Greater Effect on the General Community at X Large Quasi-judicial land use actions are those that determine the legal rights, duties or privileges of specific parties in a hearing or other contested case proceeding. The characteristics of matters that are quasi-judicial are the following: • The decision applies an existing policy or law rather than creating a new one; • The proceedings seek to reach a fact -based decision between two distinct alternatives; • The decision has a greater effect on a limited number of specific persons and a lesser effect on the general community at larger Examples of decisions that are quasi-judicial include subdivisions, preliminary plat approvals, conditional use permits, rezones of specific parcels of property, variances, and other types of discretionary zoning permits if a hearing must be held by statute or local ordinance. If a single proceeding combines both legislative and quasi-judicial functions, treat it as a quasi-judicial proceeding. Legislative land use actions are decisions of general applicability affecting the community at large. The following land use actions are legislative: • Adoption, amendment, or revision of comprehensive plans; • Adoption of area -wide zoning ordinances; • Adoption of area -wide zoning amendments. Ex pare communication means any material oral or written communication relevant to the merits of an adjudicatory proceeding that was neither on the record nor on reasonable prior notice to all parties that takes place between: (1) An interested person outside the Board (including such person's counsel); and (6) The administrative law judge handling that proceeding, a member of the Board, or a decisional employee. (2) Exception. A request for status of the proceeding does not constitute an ex Portz communication. 7)13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE 17011111E 11'111. 1�i ( O R 1) / 1111 11 E Chapter 14.20 SUBDIVISION—PROCEDURE Sections: Simultaneous review. ............................................ 1h.:�0,„„11211 Preapplication procedure. 14;,2,0. 030 Subdivision application—Requirements. 1,4. 0m,0180 Preliminary plat preparation. 1,4.201 050 Preliminary plat contents. 1,4,20.1.16W0 Determination of complete application. 14,20,070 Open record public hearing date established. 714,,20 080 Notice of open record public hearing. 14.20...0.90 Notice to affected agencies and departments. 14.20, 100 Review by city of Yakima planning commission or hearing examiner—Recommendation required. 14,20 1.111. Preliminary plat—City council determination at public meeting—Procedure for change of recommendation—Time limitation for approval or disapproval. 14.20. 120, Preliminary plat—Factors to be considered by city council—Findings—Conditions of approval. 1,4we2Oy 11111 Preliminary plat—Allowance of bond in lieu of actual improvements prior to approval of final plat, 14,20.1140 Preliminary plat—Creation of local improvement district in lieu of actual improvements prior to approval of final plat. 14,20Q 150 Maintenance bond. 11.200 1.60 Preliminary plat—Expiration of approval—Extension—Conditions. 14�1.1:1.11 Preliminary plats—Offers and agreement to sell lots. .1.1-221,11.1.8.0 Final plat—Submission for approval required—Copies—Fees. 14.20 1 0 Final plat—Preparation. 1„4„,21,1,,11,1,1,111 Final plat—Conformance with preliminary plat approval. 1-4-20-2J-0 Final plat—Requirements. 1w:4w20ww220 Final plat approval. Final plat—Recording. 1 .x°„11,,240 Final plat—Alterations, vacations. 1?d,20250 Final plat—Street vacations. Plat vacation—Requirements for complete application. .1„42,0270 Plat vacation—Criteria for approval. 1420.280 Plat alteration—Requirements for complete application. .14.,20h2910 Plat alteration—Criteria for approval. 14.20.010 Simultaneous review. Unless an applicant for preliminary plat approval requests otherwise, a preliminary plat application shall be processed simultaneously with applications for rezones, variances, planned developments, site plan approvals, and similar quasi-judicial or administrative actions to the extent that procedural requirements applicable to these actions permit simultaneous processing. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.020 Preapplication procedure. A subdivision applicant may first prepare and submit a preapplication drawing of the proposed subdivision showing the proposed layout of the lots, streets, and utilities. The administrator shall then schedule an informal meeting with the subdivision applicant and the design services team (DST) to review the proposal. Based upon information acquired during this meeting, the subdivision applicant may then prepare a preliminary plat and submit an application for the proposed subdivision. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). http://www.codepubl ishi ng.com NVA/Yakima/htm I/Yaki m al4/Yaki mal420.htm 1#14.20 1/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE 14.20.030 Subdivision application—Requirements. A. A subdivision application may be submitted by an owner or owners of land, or by an authorized agent of an owner or owners, or by a duly authorized representative of any governmental agency if the subdivision is sought for a governmental purpose, and such application shall be filed with the city office of environmental planning. B. Each subdivision application shall include the following: 1. A written application on a form provided by the planning division and signed by the land owner, owners, or authorized agent. 2. A current preliminary land title commitment. 3. Twenty copies of the proposed preliminary plat of the property, prepared according to the requirements of YMC ,1,4,20.050. 4. A nonrefundable application fee according to the current fee schedule adopted by city council. 5. A completed environmental checklist pursuant to the provisions of the State Environmental Policy Act (SEPA) and YMC Chapter 6.88 together with a nonrefundable processing fee according to the current fee schedule as adopted by city council. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.040 Preliminary plat preparation. The proposed preliminary plat shall be prepared by a land surveyor registered in the state of Washington. (Ord, 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.050 Preliminary plat contents. The proposed preliminary plat shall be legibly drawn at a scale of one inch equals one hundred feet or larger and shall be at least eighteen inches by twenty-four inches in size. It shall show: A. All existing lots or parcels included in the proposed subdivision. B. The proposed name of the subdivision. This name shall not duplicate any name used on a recorded plat or subdivision in Yakima County, including the municipalities of Yakima County. C. An accurate and complete legal description of the proposed subdivision. D. Scale, north arrow, and date. E. Boundary lines based upon a recent land survey of the land proposed to be subdivided and boundary lines of all proposed lots and streets. F. Location and size of water and sewer lines, utility easements, and drainage system proposed to serve the lots within the proposed subdivision and their point(s) of connection with existing services. G. Location, size, purpose, and nature of existing roads, streets, rights-of-way, and easements adjacent to, or across, the land. H. Location of any streets, rights-of-way, or easements proposed to serve the lots within the proposed subdivision with a clear designation of their size, purpose, and nature. I. Parcels of land intended or required to be dedicated for streets or other public purposes. J. Contour lines at two -foot elevation intervals for slopes less than ten percent and five-foot elevation intervals http://www.codepubl ishi ng.comANA/Yaki m a/htm I/Yaki mal4/Yakimal420.htm 1#14.20 2/12 7/93/2016 Chapter 14.20 SUBDIVISION—PROCEDURE for slopes more than ten percent. Elevations shall be based upon city of Yakima datum if available. (Ord. 2011- 08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.060 Determination of complete application. Upon receiving a subdivision application, the administrator shall have twenty-eight days to determine if the application is complete. If the application is not complete, the administrator will notify the applicant of such determination and what is necessary to make the application complete. Within fourteen days after an applicant has submitted additional necessary information, the administrator shall determine whether or not the application is complete and notify the applicant accordingly. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.070 Open record public hearing date established. When the administrator determines that a complete subdivision application has been submitted, the administrator shall set a date for an open record public hearing on the application before the city of Yakima planning commission, or the hearing examiner. The administrator may establish deadlines for submittal of applications prior to regular monthly planning commission or hearing examiner hearing dates; however, the hearing date shall not be set more than sixty days, nor less than twenty days, from the date that an application is determined to be complete. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.080 Notice of open record public hearing. A. The city shall give notice of the open record public hearing before the city of Yakima planning commission or the hearing examiner as follows: 1. By publication of notice at least once, not less than ten calendar days prior to the hearing, in a newspaper of general circulation within Yakima County and a newspaper of general circulation in the area where the real property to be subdivided is located. 2. At least ten calendar days before the date of the open record public hearing, notice of the hearing shall be sent by first class mail to all owners, as shown on the records of the Yakima County assessor, of land located within three hundred feet of: (1) the land proposed to be subdivided, and (2) any land adjacent to the land proposed to be subdivided which is also owned by an owner of the land proposed to be subdivided. 3. Additional notice of such hearing shall be given to the board of Yakima County commissioners and the Yakima County planning department upon the filing of a preliminary plat of a proposed subdivision adjoining the municipal boundaries of the city of Yakima. 4. Additional notice of such hearing shall be given to the Washington State Department of Transportation upon the filing of a preliminary plat of a proposed subdivision located adjacent to the right-of-way of a state highway. B. The notice of application will follow the notice requirements of Yakima Municipal Code Chapter 16.05 and may either be a postcard format or letter size paper. (Ord. 2011-08 § 1 (part), 2011: Ord. 2010-31 § 2, 2010: Ord. 98-65 § 2 (part), 1998). 14.20.090 Notice to affected agencies and departments,. Upon determining that a subdivision application is complete, the administrator shall, when determined appropriate to do so, notify the following agencies and departments of the date, hour, and location of the public hearing, together with a copy of the preliminary plat: A. City director of public works; http:Nwww.codepublishing.comMA/Yakima/htmi/Yakimal4/Yakimal420.html#14.20 3/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE B. City office of code enforcement; C. City office of engineering; D. Yakima County clean air authority; E. Appropriate irrigation district or company; F. Private water company; G. City fire department; H. City police department; I. Yakima health district; J. Yakima County department of public works; K. Affected school district; L. Local office of the Washington State Department of Ecology; M. Local office of the United States Soil Conservation Service; N. The office of any electrical distribution company servicing the area; O. The office of any telephone company servicing the area; P. The office of any natural gas company servicing the area; Q. Any other affected utility company or special district. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.100 Review by city of Yakima planning commission or hearing examiner— Recommendation required. A. The city of Yakima planning commission or the hearing examiner shall review the proposed subdivision during an open record public hearing to inquire into and determine whether or not the following standards are satisfied: 1. The proposed subdivision must be consistent with the provisions of the urban area zoning ordinance; 2. The proposed subdivision must be consistent with the city of Yakima's comprehensive plan; 3. The proposed subdivision must be consistent with the provisions of this title; 4. As required by RCW Chapter 58.17, the proposed subdivision must make appropriate provisions for: a. Public health, safety, and general welfare; b. Open spaces; c. Drainage ways; d. Streets or roads, alleys, and other public ways; e. Transit stops; http://www.codepublishing.comNVA/Yakima/htmINakimal4/Yakimal420.html#14.20 4/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE f. Potable water supplies, irrigation and other water suppliers; g. Sanitary waste disposal; h. Parks and recreation; i. Playgrounds; j. Schools and school grounds; k. Sidewalks; I. Other planning features that assure safe walking conditions for students who walk to and from school; 5. Based upon standards in subsections (A)(1) through (A)(4) of this section, a finding that the public use and interest will be served by the approval of this subdivision. B. The city of Yakima planning commission or the hearing examiner shall submit a recommendation for approval or disapproval, with written findings of fact and conclusions to support the recommendation, to the city council no later than ten working days following the open record public hearing. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.110 Preliminary plat—City council determination at public meeting—Procedure for change of recommendation—Time limitation for approval or disapproval. A. Upon receipt of the recommendation of the city of Yakima planning commission or the hearing examiner on any preliminary plat of a proposed subdivision, the city council shall at its next public meeting set the date for a closed record public hearing to consider the proposed subdivision and recommendation. B. The city council shall conduct a closed record public hearing on all preliminary plats. Review by the council shall be based upon the record, which shall include all materials properly submitted at any previous stage of the review, the written documents and exhibits and oral comments of the parties and interested persons offered at the open record public hearing, audio/video tapes of the open record public hearing and the recommendation. The city council may also consider written or oral remarks regarding the facts in the record as it was developed before and was considered by the city of Yakima planning commission or the hearing examiner. Only for good cause shown, as determined by the city council, may a party submit at the closed record public hearing information which was not part of the record as it was developed before and was considered by the city of Yakima planning commission or the hearing examiner. Following the closed record public hearing, the city council may (1) affirm the decision of the city of Yakima planning commission or the hearing examiner, (2) remand the matter back to the city of Yakima planning commission or the hearing examiner with appropriate directions, or (3) reverse or modify the city of Yakima planning commission's or the hearing examiner's recommendation. The city council shall adopt written findings and conclusions in support of its decision. If the city council affirms the recommendation to approve or disapprove the preliminary plat, it may adopt the findings, conclusions, and recommendation. If the city council rejects the recommendation, it shall adopt appropriate findings and conclusions. C. A record of all meetings and hearings concerning the proposed subdivision shall be kept and shall be open to public inspection. D. Each preliminary plat of a proposed subdivision and any associated dedication shall be approved, disapproved, or returned to the applicant for modification or correction within ninety calendar days from the date that an application has been deemed as complete unless the applicant consents to an extension of such time http://www.codepubl i shi ng.comANA/Yakima/htm I/Yaki mal4/Yaki mal420.htm I#14.20 5/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE period; provided, that if an environmental impact statement is required as provided in RCW 43.21C.030, the ninety -day period shall not include any of the time devoted by the city to any preparation or circulation of such environmental impact statement. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.120 Preliminary plat—Factors to be considered by city council—Findings—Conditions of approval. A. The city council shall review the proposed subdivision and the recommendations and findings of the city of Yakima planning commission or the hearing examiner. If city council determines the standards of this section are satisfied, then it shall approve the preliminary plat. If city council determines that the standards of this section have not been satisfied, then it shall adopt its own recommendations and disapprove the preliminary plat. B. The city council shall, in making its determination pursuant to subsection A of this section, consider the physical characteristics of a proposed subdivision site and may disapprove a proposed plat because of flood, inundation, or swamp conditions. The city council may, as the alternative to disapproval, require construction of protective improvements for flood, inundation or swamp conditions as a condition of approval of the preliminary plat of a proposed subdivision. No preliminary plat shall be approved by the city council covering any land situated in a flood control zone as provided in RCW Chapter 86.16 without the prior written approval of the Washington State Department of Ecology. C. The city council may require dedication of land to any public body as a condition of approval of the preliminary plat of a proposed subdivision. If the proposed subdivision includes a dedication, city council may require a waiver of the right of direct access to any street from any property. D. The city council shall not require a release from damages to be procured from other nroaerty owners as a condition of approval of a proposed subdivision. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998). 14.20.130 Preliminary plat—Allowance of bond in lieu of actual improvements prior to approval of final plat. A. As an alternative to construction of required improvements prior to final plat approval, the subdivision applicant may provide a surety bond or other secure method acceptable to the city council which provides for and secures to the city the actual construction of the improvements. B. The value of the bond or security shall be one hundred ten percent of the estimated cost of the improvements. The estimated cost shall be based upon the approved civil engineering design of the required improvements. C. An application for use of a surety bond or other method of security shall be made to the city engineer and shall describe the method of security to be provided and the estimated cost of the required improvements. The application, including the estimated cost of improvements and the general terms of the security agreement, shall be subject to review and approval by the city engineer and the city attorney, who shall notify the subdivision applicant of tentative approval or rejection of the application within fourteen days after its filing. D. After tentative approval of an application has been given by the city engineer and the city attorney as provided in subsection C of this section, the subdivision applicant shall submit the bond or other method of security to the city engineer for final review and approval. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.121). 14.20.140 Preliminary plat—Creation of local improvement district in lieu of actual improvements prior to approval of final plat. In lieu of the actual installation or construction of required improvements prior to approval of the final plat, the http://www.codepubl ishi ng.comMA/Yakima/htm I/Yaki m al4fYaki m al420.htm 1#14.20 6/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE city council may authorize the creation of a local improvement district pursuant to a request therefor made by the owner, the creation of which district, and the lapse of the time period for protests against the creation thereof, shall be deemed by the city to be sufficient assurance that improvements will be installed. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.130). 14.20.150 Maintenance bond. A. The subdivision applicant shall file with the city engineer a maintenance bond or propose some other method of security providing for and securing to the city of Yakima the successful operation of required improvements for one year and assuring the correction or repair of any defects in workmanship or material appearing within that one-year period. B. The amount and conditions of the maintenance bond or other method of security shall be subject to approval by the city engineer and city attorney. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.140). 14.20.160 Preliminary plat—Expiration of approval—Extension—Conditions. A. Approval of preliminary plats of proposed subdivisions shall expire five years from the date of city council approval thereof. The council shall, upon written application of the subdivision applicant at least thirty days prior to such expiration, grant an extension for a maximum period of one year upon a showing that the applicant has attempted in good faith to submit the final plat within the five-year period. B. The city council shall determine whether to grant an extension of time on the basis of the past diligence and future plans of the subdivision applicant, as well as the original recommendation. C. Any extension of time granted pursuant to this section shall be conditioned upon the proposed subdivision's compliance with all subdivision requirements in effect on the date that such extension is granted. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.150). 14.20.170 Preliminary plats—Offers and agreement to sell lots. An offer or agreement to sell, lease, or otherwise transfer a lot following preliminary plat approval that is not expressly conditioned on the recording of the final plat containing the lot violates this title. All payments on account of an offer or agreement conditioned as provided in this section shall be deposited in an escrow or other regulated trust account and no disbursement to sellers shall be permitted until the final plat is recorded. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.155). 14.20.180 Final plat—Submission for approval required—Copies—Fees.. A. A final plat of a proposed subdivision may be submitted for approval by the city council by filing the proposed final plat with the planning division within five years from the date of approval of the preliminary plat or within the time provided as an extension granted by the city council. B. Each final plat submitted for approval shall be accompanied by an original reproducible drawing of the subdivision, four copies thereof, and a current title report. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.160). 14.20.190 Final plat—Preparation. A. Each final plat shall be prepared by a land surveyor registered in the state of Washington and certified by the surveyor to be a true and correct representation of lands actually surveyed by him. B. The final plat shall be prepared by the surveyor in accordance with the provisions of the Survey Recording Act (RCW Chapter 58.09) as it now exists or is hereafter amended. http://www.codepublishing.comMA/Yakima/htmi/Yakimal4/Yakimal420.html#14.20 7/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE C. The land survey of the final plat shall be referenced from two monumented section or quarter section corners or, if the land lies within an existing subdivision, from two controlling monuments within the existing subdivision. D. Permanent survey monuments, as defined in YMC Chapter 14.10, shall be placed at all lot corners and street intersections. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.170). 14.20.200 Final plat—Conformance with preliminary plat approval. A proposed final plat must conform to the conditions of preliminary plat approval. The city council may approve a proposed final plat which, because of unforeseen technical or engineering problems, involves minor deviations from the preliminary plat. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.180). 14.20.210 Final plat—Requirements. Each final plat submitted for approval shall be drawn at a scale of one inch equals one hundred feet or larger, shall be eighteen inches by twenty-four inches in size, and shall contain the following information on the face of the plat or on additional sheets if approved by the administrator: A. Date, north arrow and scale. B. Name of the subdivision. C. Accurate and complete legal description of the subdivision on the face of the final plat. D. A complete survey of the section or sections in which the plat or replat is located, or as much thereof as may be necessal y to grope ly orient the plat within such section or sections. E. Boundary lines of the subdivision; of the proposed lots therein; of the rights-of-way for any streets, highways, roads, easements or other uses; and of any associated dedications; all to be indicated by accurate dimensions, bearing or deflection angles, and radii, arcs, and central angles of all curves. F. Notation and description of any protective improvements or dedications required by the city council or otherwise provided. G. Reference to any recorded subdivision or short subdivision adjoining the subdivision. H. Name and right-of-way width of each street or other right-of-way. I. Location, dimensions, and purpose of any easements. J. Number to identify each lot and block. K. Addresses for each lot within the plat. L. Purpose for which sites, other than residential lots, are dedicated or reserved. M. Certificate by the professional surveyor certifying to the accuracy of the survey and plat in substantially the following form: I, , a Professional Land Surveyor, do hereby certify that the plat of is based upon an actual survey and subdivision of Section Township , Range , that the distances, courses, and angles are shown thereon correctly and that monuments and lot corners have been set on the ground as shown on the plat. http://www.codepubl i shi ng.comNVA/Yakima/htm l/Yaki mal4/Yaki m al420.htm I#14.20 8/12 M 3/2016 Chapter 14.20 SUBDIVISION—PROCEDURE (Surveyor's signature and seal) N. Acknowledged certificate of free consent executed by all parties having any interest in the lands being subdivided as shown by a current title report; and also, in the case of plats containing a dedication of roads, streets, or other areas, the dedication, waiver of claims for damages, and, if required, a waiver of direct access, all pursuant to RCW 58.17.165 and in a form substantially the same as specified by YMC 14, 15,09)(I). O. If the subdivision lies wholly or in part in an irrigation district, a statement evidencing irrigation water right- of-way in substantially the following form: The property described hereon is wholly or in part within the boundaries of the Irrigation District and all lots within the short plat are subject to the terms, conditions, reservations and obligations in the present and future concerning irrigation water rights-of-way and easements as may be imposed by said district in accordance with the law. P. Dedication by the owner of streets, rights-of-way, easements, and any sites for private, semi -private, or public use. Q. The signature of the city engineer or other licensed engineer acting on behalf of the city. Signature by the city engineer shall certify that the subdivision applicant has either: 1. Completed all improvements in accordance with these regulations and with the action of the city council; or 2. Submitted a bond or other method of security in accordance with the provisions of YMC 1.4.20.1 10 sufficient to assure completion of all required improvements. R. The signature of the administrator certifying that the final plat conforms to the conditions of approval for the preliminary plat. S. A space for the signature of the mayor, whose signature shall evidence the approval of the final plat by the Yakima city council. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.190). 14.20.220 Final plat approval. A. Upon receipt of a final plat meeting the requirements of YMC ,1 (.'tet:) ' 0, the city council shall, at its next public meeting, set a date for consideration of the final plat. Notice of the date, time, and location of the public meeting shall be given to the subdivision applicant, surveyor, city engineer, and the Yakima County health officer at least ten days prior to the date of the public meeting. B. The city council shall review the final plat during the public meeting and shall approve the final plat if the city council determines that the final plat conforms to the conditions of preliminary plat approval and applicable state laws and meets the requirements of YMC Title 14 as they existed when the preliminary plat was approved. C. Upon approving any final plat, the city council shall authorize the mayor to sign the final plat as evidence of city council approval. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.200). 14.20.230 Final plat—Recording. All final plats approved by the city council and signed by the mayor shall be filed for record immediately, or as soon as possible, by the subdivision applicant in the Yakima County auditor's office. The subdivision applicant shall be responsible for all filing fees. Any final plat filed for record containing a dedication shall be accompanied by a current title report. A copy of the recorded plat shall be provided to the city prior to the issuance of any building permits. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.210). http://www.codepubl ishi ng.comNVA/Yakima/htm l/Yaki mal4/Yaki mal420.htm I#14.20 9/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE 14.20.240 Final plat—Alterations, vacations. A. The alteration or vacation of final plats filed for record in the office of the Yakima County auditor shall comply with the provisions of RCW Chapter 58.17. B. All petitions for plat alterations or vacations, except as provided for in YMC t 4,0. 1 Lshall14,01"',o, shall be submitted on forms provided by the planning division and shall be reviewed by the hearing examiner at an open record public hearing. YMC idelegates to the hearing examiner final authority on plat alterations. The final amended plat will be prepared in accordance with the hearing examiner's decision and submitted to the hearing examiner or administrator for signature. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.220). 14.20.250 Final plat—Street vacations. A. The vacation of any street within a final plat filed for record in the office of the Yakima County auditor shall comply with the provisions of RCW Chapter 35.79 and the procedures of YMC 1,,4.',,'!,,080(H). B. All petitions for street vacations or resolutions of the city council initiating the same shall be reviewed by the hearing examiner and a recommendation made thereon to the city council prior to council action. C. The abutting property owners of any street, alley, or other public way proposed to be vacated may be required to compensate the city of Yakima for vacated public right-of-way in accordance with the current city council policy on said compensation. (Ord. 2013-033 § 2 (Exh. B), 2013: Ord. 2011-08 § 1 (part), 2011: Ord. 98- 65 § 2 (part), 1998. Formerly 14.20.230). 14.20.260 Plat vacation—Requirements for complete application. An applicant for a plat vacation shall submit the following items and information: A. The reasons for the proposed vacation; B. Signatures of all parties having an ownership interest in that portion of the subdivision proposed to be vacated; C. If the subdivision is subject to any covenants which were filed when the subdivision was approved, and whether the proposed vacation would result in the violation or failure of any such covenant, the application shall include an agreement signed by all parties subject to the covenants providing that the parties agree to terminate or alter the relevant covenants to accomplish the purpose of the proposed vacation of the subdivision or portion thereof; D. A copy of the approved plat proposed to be vacated, together with all plat amendments recorded since the date of the original approval. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.240). 14.20.270 Plat vacation—Criteria for approval. A. Approval. The hearing examiner shall render the final decision on proposed plat vacations. The hearing examiner's decision may be appealed to the city council. See YMC Chapter 14.50 for appeal procedures. B. Criteria for Approval. The proposed plat vacation may be approved or denied after a written determination is made whether the public use and interest will be served by the proposed vacation of the subdivision. If any portion of the land contained in the subdivision was dedicated to the public for public use or benefit, such land, if not already deeded to the city, shall be deeded to the city unless the hearing examiner finds that the public use would not be served by retaining the public interest in such land. C. Vacation of Streets or Other Public Rights -of -Way. When the vacation application specifically proposes http://www.codepubl ishi ng.comNVA/Yakima/htm I/Yaki mal4/Yaki m al420.htm 1#14.20 10/12 7^13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE vacation of a city street or other public right-of-way, the city's street vacation procedures shall be utilized. When the application is for the vacation of a plat together with any street or other public right-of-way, the procedure for vacation in this section shall be used, but no street or other public right-of-way may be vacated contrary to the provisions of RCW Chapter 35.79 or the city's street vacation ordinance. D. Easements established by a dedication are property rights that cannot be extinguished or altered without the approval of the easement holder, unless the plat or other document creating the dedicated easement provides for an alternative method or methods to extinguish or alter the easement. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.250). 14.20.280 Plat alteration—Requirements for complete application.. An applicant for a plat alteration shall submit the following: A. Signatures of the majority of those persons having an ownership interest of lots, tracts, parcels, sites or divisions in the subject subdivision or portion to be altered; B. If the subdivision is subject to restrictive covenants filed at the time of the approval of the subdivision, and the application for alteration would result in the violation of a covenant, the application shall contain an agreement signed by all parties subject to the covenants providing that the parties agree to terminate or alter the relevant covenants to accomplish the purpose of the alteration of the subdivision or portion thereof; C. A copy of the approved plat sought to be vacated, together with all plat amendments recorded. (Ord. 2011- 08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.260). 14.20.290 Plat alteration—Criteria for approval. A. Approval. The hearing examiner shall render the final decision on proposed plat alterations. The hearing examiner's decision may be appealed to the city council. See YMC Chapter 14.50 for appeal procedures. B. Criteria for Approval. The plat alteration may be approved or denied after a written determination is made whether the public use will be served by the alteration of the subdivision. If any land within the alteration is part of an assessment district, any outstanding assessments shall be equitably divided and levied against the remaining lots, parcels, or tracts, or be levied equitably on the lots resulting from the alteration. If any land within the alteration contains a dedication to the general use of persons residing within the subdivision, such land may be altered and divided equitably between the adjacent properties. C. Revised Plat. After approval of the alteration, the final amended plat will be prepared in accordance with the hearing examiner's decision and submitted to the hearing examiner or administrator for signature, after which, it shall be filed with the county auditor to become the lawful plat of record. (Ord. 2011-08 § 1 (part), 2011: Ord. 98-65 § 2 (part), 1998. Formerly 14.20.270). http:/Iwww.codepubl ishi ng.comMA/Yakima/htm I/Yaki ma14/Yaki ma1420.htm 1#14.20 11/12 7/13/2016 Chapter 14.20 SUBDIVISION—PROCEDURE The Yakima Municipal Code is current through Ordinance 2016-003, passed April 5, 2016. Disclaimer: The City Clerk's Office has the official version of the Yakima Municipal Code. Users should contact the City Clerk's Office for ordinances passed subsequentto the ordinance cited above. Chc�,, h(,"m�0� yiew rElIcem ly gLiagli an es, _L __ _�Jjinl (... 1 11 �.Cn,161 (littp:://www.yaki�°i-navva,g(:)v/cojiricil/arcI�)ved...agev--ii(ia-�niHriutes/) C4 Website: hftp://www.yakimawa.gov/ (http://www.yakimawa.gov/) w hftp:/AAtww.codepublishing.comMA/Yakima/html/YaWimal4/Yakimal420.html#14.20 12/12