The prehearing conference is the opportunity for the board and the parties to discuss and clarify the issues. The prehearing conference is an informal proceeding that usually is conducted by telephone or by videoconference. At the prehearing, the board and the parties may do the following:
- Discuss and clarify the issues
- Explain the legal parameters (i.e., burden of proof, standard of review)
- Determine the motions anticipated to be filed or obtain stipulations concerning standing, timeliness, and jurisdiction
- Finalize the case schedule
Sometimes, the presiding officer may ask the petitioner to clarify or restate the legal issues in the petition and may present a proposed restatement of the legal issues for discussion at the prehearing.
Within seven days of the prehearing, the presiding officer will issue the prehearing order, which sets forth the final schedule and the legal issues that will be briefed and argued. Any party who objects to the prehearing order must file an objection within seven days.
The petitioner’s prehearing brief and the respondent’s response brief provide the board with the information needed to make a decision. These briefs also are where the petitioner and respondent make their cases. Any documents used to support those cases should be attached to and properly tabbed in the brief as exhibits.
The petitioner must submit the prehearing brief and all supporting documents on or before the filing date provided in the prehearing order. The brief must address the legal issues set forth in the order. Any legal issue not briefed and argued is deemed abandoned and may be dismissed without further discussion. The petitioner can arrange the legal issues in any way that facilitates the argument and may consolidate different issues together. Section headings in the prehearing brief should indicate clearly which legal issue is being addressed.
After the petitioner’s brief is filed, the respondent will file a response brief, countering the petitioner’s claims and arguing a view of the legal issues.
The petitioner may file a reply brief, responding to the arguments in the response brief, but cannot raise any new issues.
The briefs should not rely on conclusory arguments. Conclusory arguments, by either party, will be weighed accordingly by the board and the legal issues supported by the statement may be deemed abandoned. The petitioner’s burden is not met by the bare statement: “The Growth Management Act contains this goal or requirement; the government did not comply; therefore, the government violated the Growth Management Act.” Remember–the local government’s action is presumed valid. The burden of proof is on the petitioners, who must present facts from the record, legal authority, and explanation of the statutory provision to support their arguments.
Likewise, if a petitioner makes a prima facie case, it is not enough for a city or county to state that “the board must defer to the local decision, which is within the city or county’s discretion, and such deference mandates that the board find that the city or county did not violate the Growth Management Act.” Once a petitioner makes an argument supported by evidence within the record that calls into question the jurisdiction’s compliance, it is up to the city or county to respond with persuasive arguments, legal authority, and evidence that shows the action taken falls within the bounds of the Growth Management Act, Shoreline Management Act, or State Environmental Policy Act.
Page limits and format requirements are set in the prehearing order. As with all documents filed with the board, the parties must file their briefs electronically through the board’s online Case Management System unless the party does not have the technological capacity to do so or filing through that system is not possible.
A party must serve a copy of the brief and all exhibits on each party to the case. Electronic service on another party is expected unless the prehearing order provides some other arrangement.
The board has the authority to consolidate cases when there are several challenges to the same ordinance or action. If cases are consolidated, the 180-day statutory deadline for the board’s decision is based on the filing date of the last Petition for Review filed.
Other Interested Parties
If someone other than the petitioner or respondent has an interest in the outcome of the case, that person or organization (called an intervenor) may file a Motion to Intervene (template), that states the intervenor’s interests in the case, whether the intervenor supports the petitioner or respondent, and on which issues intervention is sought. Intervenors only may address issues posed by the petitioner in the Petition for Review and may not raise new issues.
The intervenor does not have to satisfy the standing requirement that is required of the petitioner.
If the presiding officer determines the party qualifies as an intervenor, a motion is granted, and the intervenor must attend hearings and join in briefings. The board may limit the intervenor's participation in the issues, briefs, and oral arguments.
If a person or an organization is not a petitioner, respondent, or intervenor but still has a strong interest in the case and wants to provide additional facts or legal authority, the party is termed an Amicus Curiae. The Amicus Curiae must file a Motion to File Amicus Brief identifying how participation would assist the board.
Any party may file a brief objecting to the proposed Amicus. The presiding officer will decide whether to permit the Amicus brief and may impose conditions on participation.
Settling Outside the Hearing
The board encourages and supports discussions to resolve the dispute between the petitioner and the respondent. The board expects parties to discuss settlement before the Prehearing Conference. If the parties agree to settle before the Hearing on the Merits, the parties may jointly move to have the case dismissed. However, after a finding of noncompliance, state law requires the board to determine whether a jurisdiction’s compliance action has brought it into compliance.
If the parties find that they may be able to settle the matter without the board’s assistance, but need additional time, then all parties must submit a request for settlement extension (template). The request must be signed by both the petitioner and the respondent, must be filed no later than seven days before the Hearing on the Merits, and must clearly state the amount of extra time requested up to a maximum of ninety days.
The board typically will grant an extension for settlement discussions related to settlement and will issue a settlement extension amending the case schedule.
Issuance of a settlement extension extends the 180-day deadline for issuance of the final decision and order and all other filings. The board only may extend the 180-day final decision and order deadline to allow time for settlement discussions. The board does not have the authority to enforce a settlement agreement nor review a settlement agreement for compliance with the Growth Management Act.