The board bases its decision on the following:
- The law
- The record
- The exhibits
- The briefs
- The arguments presented at the hearing
In all matters, the board looks to the Growth Management Act. The board will address issues that arise under the Shoreline Management Act and State Environmental Policy Act but only as authorized in the Growth Management Act.
In addition to the statutes, the board considers the Washington Administrative Code guidelines for the Growth Management Act in Chapters 365-190, 195, and 196, the Shoreline Management Act in Chapter 173-26, and State Environmental Policy Act in Chapter 197-11.
The parties should bring relevant case law and other legal authority to the board’s attention in their briefs and arguments. Case law is the reported decisions of the Washington State Supreme Court and Court of Appeals in their reviews of previous cases and serves as precedent that should be used by the board as a standard in a similar case. The board also looks to, but is not bound to, its previous decisions as guidance for subsequent cases when similar issues were raised. The board provides a Digest of Decisions and a searchable database in its online Case Management System to help parties in researching board decisions.
The record is all the documents considered by a city or county when making the challenged action. In a shoreline case, the Department of Ecology proceedings also are part of the record.
The record generally includes minutes of meetings before commissions, committees, or councils; staff reports; technical and scientific documents; correspondence; laws and regulations; and public comments (oral and written). The city or county is responsible for compiling and indexing the record.
The Department of Ecology will index its record in a shoreline case. The record should not be copied and filed with the board. It is only necessary for the board to receive the index and copies of the specific documents that any party wants to rely on as exhibits to support arguments and briefings.
Exhibits are documents presented with briefs or motions to show the board the facts supporting the party’s argument. It is up to each party to identify and present to the board, as exhibits, copies of each document the party believes supports its case. The board bases its decision on the exhibits presented by the parties with their briefs.
Exhibits must be attached to the party’s briefing, must be numbered using the index identification number, and tabbed as exhibits to the briefs. A party’s brief must include a table of exhibits and each exhibit must be labeled so that it can be located easily.
A document not taken from the record may be used only as an exhibit if the board has approved its inclusion in an order on motion to supplement.
The board also may take official notice of certain items outside the record that it believes are necessary to resolve the matter, such as federal and state laws, local government ordinances and resolutions, previous cases decided by the courts or the board, and technical or scientific facts.
Final Decision and Order
The board must issue its Final Decision and Order within 180 days from the date the board received the Petition for Review (unless the schedule is extended because the parties jointly have requested a settlement extension (see below). The Final Decision and Order typically provides the following:
- A synopsis of the case
- The procedural background
- A restatement of the board’s jurisdiction, the petitioner’s burden of proof, and the standard of review
- A discussion and analysis of the legal issues
- Findings and conclusions
- An order finding either compliance or noncompliance
- A schedule for post-hearing matters, such as the compliance deadline
The Final Decision and Order is the result of consultation among the panelists and must be signed by at least two panel members. Sometimes, a panelist may write a concurring opinion or dissenting opinion to voice a separate opinion. In a concurring opinion, a panelist agrees in the conclusion of the majority of the panel but sets forth different or additional reasoning to support that outcome.
The Final Decision and Order is the board’s final resolution and will state whether the local jurisdiction is in compliance or not with the Growth Management Act. If the panel finds noncompliance, the matter will be remanded to the city or county so it may amend, revise, or otherwise alter its comprehensive plan, development regulation, or Shoreline Master Program to come into compliance with the law.
See the Growth Management Hearings Board Handbook for more details.
Determination of Invalidity
The board may issue a determination of invalidity if it concludes that continued validity of the plan provision or development regulation would interfere substantially with the fulfillment of the goals of the Growth Management Act or Shoreline Management Act.
A petitioner wishing to see the jurisdiction’s action invalidated is advised to do the following:
- Request imposition of invalidity in its Petition for Review or in its opening brief for the Hearing on the Merits
- Demonstrate in the briefs and argument that the jurisdiction’s action substantially interferes with the fulfillment of the goals or requirements of the Act.
The Growth Management Act provides special procedures regarding invalidity.
A determination of invalidity will be rescinded if the board finds there is no longer substantial interference with the goals of the Act. On the other hand, if the city or county continues to be non-compliant, the board may issue a determination of invalidity in the compliance order, even if one was not imposed with the final decision and order.
For more details, see the Growth Management Hearings Board Handbook
Appealing a Decision
Any party may file a motion for reconsideration. This motion must be based on an allegation that the board erred regarding procedure, misinterpreted facts or the law, or, due to irregularities in the hearing, the party was prevented from having a fair hearing.
The board may deny the motion, modify its decision, or re-open the hearing. If the board has not responded within twenty days of filing of the motion for reconsideration, the request is deemed denied.
Any party aggrieved by the Final Decision and Order or other final board order (such as an order of dismissal or order on compliance) may appeal the decision to the appropriate court within thirty days of the issuance of the final board order being appealed. The appealing party is responsible for the costs of transcribing the hearings and preparation of the board’s record for certification to the court.
The Growth Management Act carves out a protection for “completed development permit applications for a project that vested under state or local law before the receipt of the board’s order by the county or city or to related construction permits for that project” Revised Code of Washington 36.70A.302(2). This means that any determination of noncompliance or invalidity by the board does not affect any rights that vested before the board’s findings.