The Washington State Boundary Review Board For King County

REGULAR MEETING

March 11, 2021

Zoom meeting

1. CALL TO ORDER

   Chair Hamlin convened the meeting at 7:17 P.M.

2. ROLL CALL

   The following members were present:

   • Evangeline Anderson
   • Sylvia Bushnell
   • Mary Lynne Evans
   • Chandler Felt
   • Marlin Gabbert
   • Claudia Hirschey
   • Paul MacCready
   • Hank Margeson
   • James Polhamus
   • Stephen Toy
   • Guest: Roberta Myers
3. MINUTES:

   Regular Meeting - February 11, 2021

   Chair Hamlin presented the minutes of the Regular Meeting of February 11, 2021 for review and action by the Board members.

   Action: Hank Margeson moved and Marlin Gabbert seconded the motion to adopt the minutes for the Regular Meeting of February 11, 2021.

   Board members voted nine in favor of approving this record of the Regular Meeting. Claudia Hirschey abstained as she did not attend the Regular Meeting.

4. BOUNDARY REVIEW BOARD ORIENTATION — 2021: Robert Kaufman, Special Deputy Prosecuting Attorney

   Robert Kaufman, Legal Counsel, provided the Board with an overview of the role of the Boundary Review Board. The State of Washington (RCW 36.93) created Boundary Review Boards in 1967 but boards are not considered state agencies. Fourteen (primarily) urban counties have boundary review boards. Counties fund their boards.

   Board roles — responsibilities and authorities — are established within RCW 36.93. It forms our definition and bible for our structure and function. Mr. Kaufman identified and presented an overview of the role and responsibilities of the Boundary Review Board as prescribed by RCW 36.93.

   Note to Reader: Attachment A to this Report provides a copy of RCW 36.93.

   Mr. Kaufman focused his presentation on the overview of the major sections of RCW 36.93 as they apply to activities of the Boundary Review Board. Mr. Kaufman’s report — including discussion initiated by Board members -- is summarized below:

   Sylvia Bushnell Chandler Felt Claudia Hirschey Paul MacCready Stephen Toy

   The Boundary Review Board has undergone significant changes over time. At the time the Board was formed, there was some pretty fierce competition among municipalities for territory, probably among the most notorious was between Bellevue and Redmond. And as a result of that, and following Oregon's lead, Washington adopted the boundary Review Board act. Our boundary Review Board act is tailored after what was then Oregon's annexation Review Board Act.

   Boundary Review Boards are interesting creatures, because we're really neither a state agency, nor a county agency. While we are created by the Legislature -- and function under state law (RCW 36.93 — Boundary Review Board Act) we are not considered to be a state agency. The original statute provided for state funding — but requires counties to fund their boards if the state does not do so. Counties have always funded their boundary review boards.

   Under a chapter of the revised code of Washington, like the Boundary Review Board Act, the starting point is often a definitional section. Our definition and purpose are at the beginning of the Act — RCW 36.93.010 and RCW 36.93.020:

   RCW 36.93.010 Purpose: “.... Legislature provide a method of guiding and controlling the creation and growth of municipalities in metropolitan areas ...so that residents and businesses may rely upon the logical growth of government...” Mr. Kaufman stated that this section of the statute has remained constant since its inception in 1967.

   RCW 36.93.020 defines those actions to create or change boundaries by municipalities and/or special purpose districts. Our authorities extend to a list that includes but is not limited to service assumptions, extensions, regional fire districts, municipal parks districts, flood control districts, draining and diking districts; or public utility district engage in water distribution. Boards do not administer hospital districts or library districts.

   The Boundary Review Board does not review minor revisions of city or town boundaries, which are essentially a boundary adjustment and adjustments to city's accounts pursuant to our RCW 35.13 (.300, .330 and .340). And those are moving old municipal boundaries that might be the central line of a right of way of the right of way -- which, over time, have fallen into disfavor as a governing solution. As such, there are certain boundary line adjustments, which might capture the entire right of way, and those would not be subject to our jurisdiction.

   There are certain types of actions that are subject to our review, but our Board has the authority to waive this review (RCW 36.93.110). Review can be waived when an annexation is less than 10 acres and less than $2 million dollars in assessed valuation. The Board is responsible to take action to waive. However, such annexations are uncommon because the criteria are not easily achievable given current property values.

   There are special purpose districts other than those that are enumerated in the Boundary Review Board act that are subject to our jurisdiction. The Board also has guidance for special purpose districts that are not on that list and are therefore not subject to our act.

   ***
   The Boundary Review Board Act (RCW 36.93.090 -.150) establishes the requirements for entities proposing to create or change boundaries to file an application as a Notice of Intention (NOI) with the Boundary Review Board. These statutes also prescribe review authorities and limitations to power of review by the Boundary Review Board.

   An NOI is basically required for any change/creation to an existing jurisdictional boundary or incorporation of any city, town or special purpose district consolidation of special purpose districts incorporations of new cities, assumptions by cities or towns of any parts of assets, facilities, or indebtedness of a special purpose district that lies either totally or within partially within that city or town. The requirement also exists for the establishment or change in the boundary of a mutual water and sewer system by water-sewer district, or the extension of permanent or water and/or sewer service outside of the existing service area by city, town, or special purpose district. Waster service is permitted within Rural Areas; sewer service is prohibited in Rural Areas.

   The initiators of the action shall file within one hundred eighty days a notice of intention with the board --- provided that when the initiator is the legislative body of a governmental unit, the notice of intention may be filed immediately following the body's first acceptance or approval of the action”. Upon filing of an NOI, first and foremost, is up to the Board to determine whether that notice of intention is legally sufficient. Our statute contains the bare bones minimum requirement of what a Notice of Intention must contain. Through our rulemaking authority, we have adopted rules of practice and procedure that expand upon what we would like to see in a notice of intention. And that also has evolved over time as the board has determined what type of information it wants to see when it's first reviewing these proposals.

   The Executive Secretary must determine whether a file is deemed legally sufficient. Specifically, the Executive Secretary undertakes to ensure that an NOI is complete and comprehensive under RCW 36.93 and other applicable statutes — e.g., Growth Management Act; State Environmental Protection Act; King County Comprehensive Plan/Countywide Policies, as well as other regional and local regulatory authorities. A proposing entity which does not/cannot provide a sufficient document is encouraged to delay or withdraw an NOI. The determination of legal sufficiency is a critical decision to be made because once the file is deemed legally sufficient, then a statutory 45-day period of review is begun.

   During the 45-day period the Boundary Review Board acts as a “clearinghouse”. The Board distributes that Notice of Intention to interested governmental agencies/communities that may be impacted by the proposal. The statute requires this notification because these entities must be aware of the proposal as the Board proceeds with its evaluation processes.

   This evaluation process requires administrative review in a public forum leading to adoption by “operation of law” within 45 days for those proposed actions which are considered to be consistent with applicable statutory authorities. And that requirement is stated in RCW 36.93. To wit, during that 45-day review period, a NOI comes before the board at our regular meetings.

   The NOI is distributed in advance of the meeting. Then the NOI is presented to our board to describe the proposed action and present the state, regional, and local statutes to which it is subject. Board members may generate ideas and questions. One of the perfectly acceptable and best means of gathering information other than through the formality of a public hearing, is through this method which enables Board members to request additional information it would like to see, even though we don't have the authority to invoke our own jurisdiction. Requests may also be of interest to those who do have the authority to invoke our jurisdiction. Staff can contact the representatives of the city or the special purpose district who are the proponents of the action to seek additional information. Generally, this information can be obtained quickly and in a very efficient manner.

   This information can clarify and resolve a matter that might otherwise have become an issue subject to our jurisdiction being invoked. After that clarification, there may be no interest in invoking our jurisdiction.

   The process employed by the King County Board staff and members to support the submittal of complete official NOIs and to incorporate provisions for requests for clarifications and additional information increases the likelihood that an NOI review process can be completed within the 45-day review period.

   Mr. Kaufman reports that the Board then — at the end of 45 days if jurisdiction is not invoked — closes the file by “operation of law.” Mr. Kaufman reported that once the file is approved by operation of law, it is closed to further review by the Board. There is no statutory exception to the 45-day review period.

   There is no information as to an effort to extend that mandatory 45-day review period.

   ***
   Mr. Kaufman reported on the matter of the “invoking of jurisdiction.” Under RCW 36.93, if an affected jurisdiction or members of the public determine that there is an element of the proposal that raises a concern or an issue, then that party may submit a request for review (invoking of jurisdiction) which must be filed with the board within the 45 day review period. Note was made of the fact that while the Board was historically permitted to invoke its own jurisdiction that opportunity is not permitted to the Board at this time — with

   very limited exceptions (i.e., expansion of sewer lines to 6 inches or greater size).

   Specifically, jurisdiction may be invoked by governmental units. Also, there are groups of citizens that are identified as having standing to invoke our jurisdiction. Those include 5% of the registered voters living in the area being considered for the proposed action. Another group is an owner or owners of property consisting of 5% of the assessed value within the area. A third group that can invoke our jurisdiction is 5% of the registered voters who consider themselves affected by the action and reside within one quarter mile of the action, but not within the proposed area boundaries.

   If the Board concurs with that request, our jurisdiction is invoked. Then we have certain responsibilities and authorities for the conduct of a public hearing. Conducting a public hearing requires notice to the public in various forums by publication by posting notice in the various publications within the area to be affected and around the area to be affected. Over time, we have begun to post on the Board's website.

   Once jurisdiction is invoked, the Board has 120 days to set and conduct a public hearing and come to a decision to approve, modify, or deny an NOI. A public hearing is generally conducted in the area under consideration for a proposed action. Opportunity is provided for testimony by the proponent, supporting jurisdictions, opposing jurisdictions, community groups, and individual residents and business owners. Once all the necessary testimony and documentation is in the record, the Board closes the public hearing and undertakes deliberations to a decision in the NOI. The process of deliberation focuses on RCW 36.93.170 and RCW 36.93.180 -- an action must meet or advance the preponderance of relevant criteria to permit approval or modification. Also, the Board must consider the Growth Management Act (GMA); State Environmental Policy Act (SEPA), the King County Comprehensive Plan/Countywide Planning Policies, and a variety of regional and local regulations.

   There is no time limit for a jurisdiction to implement an action following approval/modification by the Boundary Review Board. A NOI that is denied cannot be resubmitted to the Board for one calendar year.

   Mr. Kaufman reported that there have been instances in which our jurisdiction has been invoked and the Board has conducted an initial public hearing, but has needed more time than 120 days to complete the hearing process and issue our final decision. In those cases, the proponent has the authority to extend the review period. There also have been instances in the past in which the Board has gone to the proponent and made clear to the proponent that we need more time for review or we need more information. Consistently, when we requested additional time from a proponent there was agreement to do so. So, while the Board must treat the 120-day rule as with the import that it carries, in certain instances, that period of time can be extended.

   Once the Board’s Final Resolution and Decision is adopted by the board, it is filed with the County which triggers a 30-day appeal period to the Superior Court. That 30-day period is jurisdictional, meaning that it can't be extended by any court or by any statute.

   There are other ways by which a Boundary Review Board decision could be challenged. The one instance in which that occurred was in Spokane County. Under the law, an aggrieved party could go to the Superior Court and ask the Court to issue a document that we call an “extraordinary writ”. There are three primary kinds of writs. One is a writ of certiorari. One is a writ of mandamus. One is a writ of prohibition. If a court grants a writ of prohibition, it will stop an administrative agency like the Boundary Review Board from doing something that the Court finds to be outside of its authority (i.e., extra-legal).

   Almost the opposite procedure of a writ of prohibition is a writ of mandamus, where if an agency is refusing to act in accordance with its statutory mandate, then an aggrieved party can go to Superior Court, requesting that the Superior Court order the agency to do its job. That is a writ of mandamus.

   The third kind of writ is called a writ of certiorari where the aggrieved party is basically saying: “I'm not challenging this boundary review word decision on the basis of the appeal that lies in the Boundary Review Board act. I'm challenging this decision because they acted extra-legally — that is: they did something outside of their authority. They didn't follow their own rules. They didn't follow their own statute.” If a writ of certiorari is granted, then the board has to certify its record to the Superior Court. And the Superior Court can conduct a review to determine if the Board acted in an extra legal manner. As there has only been one such action in 30 years, this does not need to be of concern to this Board.

   Further, Mr. Kaufman is committed to assuring that the Board does not act (or fail to act) in a manner that results in a court action for a writ.

   ***
   There is one type of matter — incorporation of a new city -- where the law requires the Board to conduct studies and bring the action to a series of public meetings and hearings. There was a period of time several years ago, when we saw numerous proposed incorporations come to the Board for the formation of new cities and towns. Given the current regulatory and economic climates, there have been very few recent inquiries about

   incorporation; none has led to an official request to incorporate.

   ***

   Mr. Kaufman reported that there are numerous bodies of law pertaining to options under which a municipality or special purpose district can choose to propose an annexation — including petition method, petition-election method, resolution method, resolution method and interlocal agreement method. By way of example, but not limitation, those options are defined and described in the following laws:

   • RCW 35.14 — Annexation by Code cities

   • RCW 35.10 - Applies to methods of annexation of all or part of a city or town to

     another city or town;

   • RCW 85.38 - Applies to annexations of contiguous territory by a diking and drainage district;

   • RCW 35.13 - Applies to annexation of contiguous unincorporated areas by the “election” and “direct petition” methods of annexation.

   • RCW 35.13 - Also contains “interlocal agreement” method of annexation and contains no exemption from the requirement of filing a NOI with the Boundary Review Board.

     The most recently permitted type of interlocal agreement annexation has been the subject of several requests for clarification with respect to the requirements for the basic NOI and for the review requirements at the Board.

     Mr. Kaufman reported that actions (e.g., annexations) based on Interlocal Agreements (ILA) are required to come to the Board as an NOI. The NOI must be based upon an official ILA heard by, signed, and ratified between/among each of the agreeing parties (e.g., cities, counties, special purpose districts). Until/unless there is an actual ILA, an action is not authorized for submittal to the Board.

     While various statutes address an ILA -- and one of the purported purposes of this annexation system is to streamline the annexation process — none of the statutes eliminate the Boundary Review Board assessment of these ILA agreements. Therefore, upon the Board’s receipt of an NOI based upon an ILA the proposed action is subject to the same review as prescribed for all types of annexations by RCW 36.93 (e.g., RCW 36.93.100 — RCW 36.93.150).

     The ILA annexation — as with all types of annexations -- must achieve the requirements of other applicable statutes (e.g., Growth Management Act, King County Comprehensive Plan, et seq.) It is essential to be aware that the Board is empowered to review the NOI for the ILA annexation. The Board may include the ILA in its review -- but cannot condition or deny the document.

     A question was also raised concerning the authority of the Board to require and consider fiscal analyses in conjunction with NOIs proposed in conjunction with ILA annexations. RCW 36.93 does not directly require fiscal studies for NOIs. However, the King County Boundary Review Board — and some other Boards in Washington -- require basic analyses under Board regulations (RCW 36.93.210). More comprehensive, long-term studies conducted under the aegis of the Boundary Review Board would likely require revisions to RCW 36.93. Further, a special master would likely be necessary to conduct such a study. The County would need to provide funding for such a study -- it is not certain as to whether funding would be available.

   A question was also raised as to whether the retention of the Boundary Review Board authorities is intentional or an oversight by the supporters. There is no information to enlighten the Board at this time -- but the matter merits future monitoring.

   ***

   The Washington State Department of Commerce has not promulgated any Washington Administrative Code (WAC) Rules or any other rules with respect to this type of city/county interlocal agreement.

   ***

   Mr. Kaufman also spoke about the Growth Management Act (GMA) impacts on the role and responsibility of the Boundary Review Boards. When the when the Legislature adopted the GMA it also added some language to the Boundary Review Board Act (RCW 36.93). So, growth management is to a degree an overlay to the Boundary Review Board Act because the Legislature has told us that our decisions may not authorize annexations outside urban growth areas. In addition, our decisions have to be consistent with countywide planning policies.

   Thus, the GMA substantially impacted the Board. It led to additional objectives that the Board must consider as prescribed by RCW 36.93, et seq. As King County is certainly one of the most Metropolitan county entities, the Board must also be particularly aware of the Growth Management Act (GMA). By way of example, under the GMA cities cannot annex outside of the urban growth area. In King County there is a real constraint, because there is not much remaining unincorporated urban area.

   Similarly, pursuant to GMA, as King County strictly limits extension of water services outside of the Urban Growth Area and directly prohibits sewer services outside of the Urban Growth Area. Therefore, the Board must give particular consideration to the ways in which an NOIs address urban growth areas with respect to the GMA, King County Countywide planning policies and the regional and goals that apply to the particular NOI.

5. ADMINISTRATION:

   1. Chair’s Report

      General Business: Chair Hamlin and Lenora Blauman reported that the Board staff is currently working on several projects including: (1) coordination with King County Executive/Council Work Program; (2) coordinating activities with the State Association; (3) pre-development review for future Notices of Intention; (4) planning of orientation programs for 2021; (5) upgrading of technology systems; and (6) implementation of the 2021 - 2022 Biennial Budget.

   2. Committee Reports

      1. Washington State Association of Boundary Review Boards

         Jay Hamlin reported that the Association is continuing to conduct a an Educational/Training Survey of Board members and staff members serving all Boundary Review Boards to determine levels of knowledge and levels of interest in participating in educational programs to enhance information and skills necessary to conduct business for each Board as prescribed by RCW 36.93 and related statutes (e.g., Growth Management Act, Open Public Meetings Act). Mr. Hamlin encouraged our members to complete the appropriate surveys.

         Survey findings and planned education programs will be provided at future Board meetings.

      2. Budget Committee

         Lenora Blauman reported that the Board is implementing our 2021- 2022 Biennial Budget. Staff has recently met with the Board's Budget Analyst to ensure that the Board is appropriately managing funds. There are no reported difficulties in our program.

      3. Legislative Committee — American Planning Association — Washington Chapter (APA- WA)

         Lenora Blauman stated that the WAPA Chapter is continuing to meet regularly to address issues of significance to the organization. The Legislature is moving rapidly through the process of establishing -- and hearing — bills of interest. By March 19, 2021, the Senate and the House must move forward those bills selected to be viable on to Committee review and hearing and onto Executive Sessions as well as to Ways and Means (for those bills requiring specific funding allocations). APA-WA is following proposed bills relating to the Growth Management Act and comprehensive planning schedules. There are also bills addressing land development, climate change, transportation, and environmental management.

         • HB 1080: Capital Budget
         • HB 1099: Climate Improvements via Comprehensive Planning
         • HB1156: Increasing Voter Participation in Local Elections (boundary review boards outside King County)
         • HB 1157: Increasing Housing Supply through Growth Management Act and housing density tax incentives for local governments
         • HB 1232: Accessory Dwelling Units
         • HB 1241: Growth Management Act - Planning
         • SB 5042: Concerning Effective Date of certain actions... Growth Management Act
         • SB 5275: Land Area in Rural Development
         • SB 5368: Encouraging Rural Economic Development
         • SB 5373: Carbon Tax

         These bills would not directly affect boundary review board authorities and responsibilities a prescribed by RCW 36.93, et seq.

         ---

         WSABRB Legislative Committee/King County Boundary Review Board Legislative Committee: Mary Lynne Evans, speaking on behalf of the King County Board’s Legislative Committee and the Association Legislative Committee, reported that the WSABRB Legislative Committee is continuing meeting on a regular basis to develop and implement policies, plans, and systems to work with Legislature 2021. Information is being obtained from “Legi.scan.”

         Ms. Evans reported that particular interest is being directed to SB 5368 -- which directly affects rural economic development -- but also allows annexation via interlocal agreements. Annexations by interlocal agreements are subject to boundary review board evaluation under RCW 36.93. However, there are limited opportunities to conduct public hearings and limited rights to appeal such actions.

         Ms. Evans reported that the previous statutory mandate (SB 5525) sets the basic authorities/requirements for interlocal agreements for annexation. There is no viable opportunity for modifying this statute for ILA annexations at this time. It is possible that SSB 5368, if adopted, will be codified in RCW 35.14 which is a core statute addressing ILA annexations.

         Ms. Evans reported that the Association Legislative Team submitted recommendations for enhancing RCW 35.14 (via SB 5368) by establishing requirements for the proponents of the ILA -- and the Notice of Intention for the action — to comprehensively address the provisions of RCW 36.93 (e.g., RCW 36.93.100-.150 and RCW 36.93.170- .180). These recommendations are in keeping with the following inquiries to/responses from Robert Kaufman, Legal Counsel to the Board.

         Q: What public process is required of the ILA? A. The requirements for review and a hearing with published notice appear in RCW 35.14.

         Q: Does each body have to ratify it separately? A. Yes.
         Q: Does the ILA have to go through a NOI process? A. No, but once the action is agreed upon

         the NOI must be filed with the BRB

         Q: Does the BRB comment or weigh in on the agreement? A. No, unless the BRB’s jurisdiction is invoked and the agreement becomes the subject of scrutiny in the course of the BRB hearing.

         Q: When is the agreement finalized? A. There does not appear to be any time limitations in the interlocal agreement process.

         Q: Does it have to pass through the BRB in order to be finalized? A. Yes, but only if our jurisdiction is invoked.

         Q: Can the BRB comment on and/or request changes to the interlocal agreement? A. I do not see a means of doing so unless the Board asks for such a change in the course of a public hearing, but this would be a most unusual action.

         Q: Can the jurisdiction of the BRB be invoked? A. Yes, by a party with standing — not the BRB - after one of the entities files a NOI.

         Q. What is the process and timeline for BRB participation in the process? A. Our usual timeline when jurisdiction is invoked. If at that time someone invokes our jurisdiction, then we would hold a public hearing and make a ruling on that ILA annexation as the ILA stood. We cannot change the annexation as established in the provisions of the ILA that is the basis of the NOI.

         Q: Is there any referendum in the interlocal agreement process? A. No, there is no proviso for a referendum in the 2020 SSB No. 5522 as codified in RCW 35A.14.

         Q: Is there any other appeal process for an interlocal? A. I see no provision for a statutory right of appeal. If a party believes itself aggrieved by the process, they may have recourse in the courts by filing an extraordinary writ of mandamus, prohibition, or certiorari, but these are rare and extraordinary remedies.

         ***
         The Association was also assisted and supported by Carl Schroeder of the Association of

         Washington Cities and Paul Jewell of the Washington State Association of Counties.

         The Association’s request has been successful in that the proposed bill has been modified (SSB 5368) to call for the suggested enhancement of consideration of RCW 36.93. SSB 5368, as proposed by the Association, was passed by Senate by a substantial majority and is moving to the House Local Government Committee for review and hearing. The Association will continue to follow and support SSB 5368.

   3. Executive Secretary’s Report

      ORIENTATION PROGRAMS: Ms. Blauman is continuing planning for a new cycle of orientation programs in 2021. Suggestions include the following topics/agencies:

      Ms. Blauman is actively working with the Economic Development Council to provide a presentation on Economic Trends for 2021 that is now scheduled for our April Regular Meeting She is also working with Sound Cities Association.

      Other future opportunities include:

      • King County Local Services Unit

      • Puget Sound Regional Council — Vision 2050

      • Municipal Research Services Center

      • APA-WA Legislative Team

   4. General Correspondence: Chair Hamlin reported that there was no general correspondence for consideration at this Regular Meeting.

6. NEW BUSINESS:

1. New Files: Ms. Blauman reported that the Board has no new Notices of Intentions on file at this time.

2. Future files

   The Board has also received two preliminary files for informal consideration in advance of the proponents' submitting completed Notices of Intention.

   Two additional complete files are anticipated in the second quarter of 2021. The Board has been advised of several potential proposed future Notices of Intention:

   • Auburn (2 files)
   • Black Diamond (2 files)
   • Carnation (1 file)
   • Enumclaw (8 files)
   • Issaquah (2 files)
   • Maple Valley (3 files)
   • North Bend (4 files)
   • Renton (5 files)
   • Seattle (4 files)
   • Tukwila (2 files)
   • Water District No. 90 (1 file)
   • Bellevue (4 files)
   • Bothell (1 file)
   • Duvall (5 files)
   • Federal Way (3 files)
   • Kent (5 files)
   • Milton (1 file)
   • Redmond (4 files)
   • Sammamish (2 files)
   • Snoqualmie (4 files)
   • Vashon Sewer District (1 file)

   Note: There are 13 unincorporated urban areas in King County that are not assigned to a Potential Annexation Area.

7. ADJOURNMENT

   Chair Hamlin adjourned the Regular Meeting at 8:22 P.M.