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Ordinance 35720006.900000 JZL /WSS 9/16/03 R:10 /27 /03gjz R/10 /29 /03gjz R:6 /10 /05gjz R:6 /23 /05gjz ORDINANCE NO. 3572 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, AMENDING TITLE 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE BY ADDING A NEW CHAPTER 20.16 ESSENTIAL PUBLIC FACILITIES THERETO, ADOPTING REGULATIONS GOVERNING THE SITING, PERMITTING AND MITIGATION OF ESSENTIAL PUBLIC FACILITIES, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, essential public facilities as defined by Chapter 36.70A RCW are necessary to support orderly growth and delivery of various public services; and WHEREAS, essential public facilities often implicate siting difficulties and create significant community impacts; and WHEREAS, consistent with applicable state law, the City Council desires to establish a regulatory scheme for essential public facilities that will ensure the efficient and appropriate siting of said facilities while simultaneously providing for sufficient notice, public participation, mitigation and oversight; and WHEREAS, the City's intent in adopting said regulations is not to preclude the siting of essential public facilities in contravention of applicable state law; and { W SS605009.DOC;1 /00006.900000/} -1- WHEREAS, the City intervened in a case before the Central Puget Sound Growth Management Hearings Board styled as King County, et al, v. Snohomish County, et al, Case No. 03 -3 -0011; and WHEREAS, the Growth Management Hearings Board decision invalidated Snohomish County's essential public facilities requirements and remanded the matter back to Snohomish County for action; and WHEREAS, Snohomish County has filed a motion for reconsideration requesting a period of up to six months to amend its ordinance in order to comply with the provisions of the Board's order; and WHEREAS, the City had hoped to have more specific guidance in that matter, but the continuing process indicates that a final decision may be many months off, and WHEREAS, the City is anxious to comply with its Growth Management Act directive and to have in place an ordinance governing essential public facilities; and WHEREAS, the preceding legislative findings are adopted as the basis for adopting this zoning regulation NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Title 20 of the Edmonds Community Development Code is hereby amended by the addition of a new Chapter 20.16 Essential Public Facilities to provide in its entirety as follows: Chapter 20.16 ESSENTIAL PUBLIC FACILITIES 20.16.010 Purpose and applicability 20.16.020 Definitions 20.16.030 Conditional use permit required { WSS605009.DOC;1 /00006.900000/} -2- 20.16.040 Optional site consultation process 20.16.045 Inter - jurisdictional siting 20.16.050 EPF conditional use permit procedure 20.16.060 Independent consultant review 20.16.070 Decision criteria 20.16.080 Decision criteria; EPF's proposed by a Regional Agency with jurisdiction 20.16.090 Denial of Regional EPF - Limitations 20.16.100 Permit Approval 20.16.110 Reconsideration and Appeal 20.16.120 Decision timing 20.16.130 Building permit application 20.16.010 Purpose and applicability A. This chapter establishes the City's review process for essential public facilities in order to support orderly growth and delivery of public services. The City's goal in promulgating the regulations under this chapter is to ensure the timely, efficient and appropriate siting of EPFs while simultaneously acknowledging and mitigating the significant community impacts often created by such facilities. This chapter also seeks to promote enhanced public participation that will produce EPF siting decisions consistent with community goals. B. Nothing in this chapter should be construed as an attempt by the City to preclude the siting of essential public facilities in contravention of applicable state law. The chapter shall be interpreted in a manner consistent with the City's statutory obligations. C. The siting process established by this chapter does not apply to "secure community transition facilities" as defined under Chapter 71.09 RCW, or to residential health and social service facilities protected by state or federal law as residential uses permitted in residential zones. 20.16.020 Definitions The following definitions shall apply for purposes of this chapter: A. "City" means the City of Edmonds, Washington. B "Department" means the City of Edmonds Development Services Department. { WSS605009.DOC;1 /00006.900000/} -3- C. "Director" means the City of Edmonds Development Services Director. D. "Essential Public Facility" or "EPF" means a facility: (i) listed in RCW 36.70A.200; and /or (ii) appearing on the list maintained by the State Office of Financial Management pursuant to RCW 36.70A.200(4), and /or (iii) designated in the City's Comprehensive Plan; and /or (iv) designated by a regional Agency with jurisdiction; and /or (v) owned or operated by a unit of local or state government, a public utility or transportation company, or any other entity under contract to a unit of local or state government to provide an essential public facility. E. "Regional Essential Public Facility" or "Regional EPF" means a project designated as an EPF and sited by a bona fide Regional Agency acting within its legally constituted authority and geographical jurisdiction. F. "Project sponsor" means the proponent and /or applicant for an essential public facility. 20.16.030 Conditional use permit required All EPFs shall comply with the provisions of this chapter. An EPF shall be considered a conditional use in all zones of the City. In the event of a conflict with any other ECDC provision, the provisions of this chapter shall govern. 20.16.040 Optional site consultation process Prior to submitting a conditional use permit application under this Chapter, an EPF sponsor may initiate optional site consultation with the Department. This consultation process, while not required, is encouraged as a means for project sponsors to present facility proposals, seek information about potential sites, and propose possible siting incentives and mitigation measures. 20.16.045 Inter - jurisdictional siting In the event that the City has executed an interlocal agreement with one or more other jurisdictions regarding the siting of EPFs of a { WSS605009.DOC;1 /00006.900000/} -4- regional or state -wide nature, the City shall cooperate fully and in good faith with said jurisdictions to the extent specified in the interlocal agreement. PROVIDED, that nothing in this section nor in any such interlocal agreement shall be construed as waiving, limiting or otherwise abridging the City's regulatory authority. 20.16.050 EPF conditional use permit procedure A. Application for EPF conditional use approval shall be made pursuant to ECDC 20.90.010, as consistent with this chapter. Approval, conditional approval or denial of the project sponsor's application shall be made by the City of Edmonds Hearing Examiner after a public hearing. B. The conditional use permit application process shall include a public participation plan designed to encourage early public involvement in the siting decision and to assist in determining possible mitigation measures. Informational public meetings within the City shall be scheduled pursuant to this process; the number of meetings shall be set by the Director consistent with the size, complexity and estimated impacts of the proposal. The Director shall determine the format and location(s) for the meetings, and shall require that public notice and meeting summaries acceptable to the City shall be either prepared or paid for by the EPF sponsor. C. In addition to the conditional use permit application fee, and all costs required by the public participation plan specified in 20.16.050.13 above, an additional fee of $5,000 shall be required for the additional costs associated with review of the application under the criteria established in ECDC 20.16.070. Facilities .for the disabled or other populations for whom the City is required to consider for accommodation of its rules, practices and procedures under the requirements of state and /or federal law, may apply for a reduction of this fee pursuant to Chapter 17.05 ECDC to a level consistent with the administrative burden placed upon the City's resources. 20.16.060 Independent consultant review 1. The Director may require independent consultant review of the proposal to assess its compliance with the criteria contained in ECDC 20.16.070 and 20.16.080. 2. If such independent consultant review is required, the project sponsor shall make a deposit with the Department sufficient to defray the cost of such review. Said deposit shall be { WSS605009.DOC;1 /00006.900000/} -5- separate from and in addition to any other fee paid by this Chapter. The deposit shall be set at a level consistent with the anticipated cost of review based on the size, complexity and estimated impacts of the proposal. The deposit shall be supplemented by the applicant from time to time to ensure payment of the reasonable cost of consultant review. Any unexpended funds shall be returned to the applicant following the final decision on the application. 20.16.070 Decision criteria An application for EPF conditional use permit approval shall comply with all other applicable requirements for the proposed use — including SEPA and design review, as applicable — and the following decision criteria: 1. The project sponsor has demonstrated a need for the project, as supported by a detailed written analysis of the projected service population, an inventory of existing and planned comparable facilities, and the projected demand for the type of facility proposed. 2. The proposed site will reasonably serve the project's overall service population. Regional EPFs shall comply, in the alternative, with ECDC 20.16.080(A)(1) and (2). 3. The project sponsor has reasonably investigated alternative sites, as evidenced by a detailed explanation of site selection methodology, as verified by the City and reviewed by associated jurisdictions and agencies. 4. The project is consistent with the sponsor's own long -range plans for facilities and operations, as well as the plans of those jurisdictions and agencies that may also be participating in a facilities plan. 5. The project sponsor's public participation plan has provided an opportunity for public participation in the siting decision and mitigation measures that is appropriate in light of the project's scope. 6. The project will not result in a disproportionate burden of essential public facilities on a particular geographic area, whether upon the City as a whole or upon any neighborhood of the City. 7. The project is consistent and compatible with the City's comprehensive plan, City -wide planning policies and local land use regulations. In the alternative, proponents of a regional { WSS605009.DOC;1 /00006.900000/1 EPF may show that it was sited in accord with the planning process of a regional entity. [See also ECDC 20.16.080(B)]. 8. The project site meets the facility's minimum physical site requirements, including projected expansion needs. Site requirements may be determined by the minimum size of the facility, access, support facilities, topography, geology, and on -site mitigation needs. The project sponsor shall identify future expansion needs of the proposed facility during the initial environmental review and the phasing of additional needs early in the process. 9. The project site, as developed with the proposed facility and under the proposed mitigation plan, is compatible with surrounding land uses, to the extent that compatibility is technically and practically feasible. 10. The project sponsor has proposed mitigation measures that substantially avoid, reduce, or compensate for adverse impacts on the environment, including but not limited to buffers, design elements and other operational or programmatic measures contained in the proposal. 11. The project sponsor has identified and proposed mitigation measures that substantially avoid, reduce, or compensate for adverse fiscal impacts on the City. This mitigation shall be based on an analysis of the project's impact on City finances. This requirement may be waived by the Director if s/he finds that the EPF is unlikely to have a significant fiscal impact on the City, or that the burden of undertaking the analysis is not consistent with the scale and community -based nature of the facility being proposed. 20.16.080 Decision criteria; EPFs proposed by a Regional Agency with jurisdiction An application for conditional use permit approval for an essential public facility proposed by a Regional Agency with jurisdiction shall additionally or alternatively, as applicable, comply with the following site decision criteria: A. The project sponsor has established that it is a Regional Agency with jurisdiction. For the purpose of this chapter, "jurisdiction" shall mean within the boundaries of a Regional Agency's legal and physical jurisdiction as determined by the laws of the State of Washington or its charter. A claim of jurisdiction based upon service area shall meet the following criteria: { W SS605009.DOC;1 /00006.900000/} -7- 1. The project must serve a significant share of the Edmonds population or a significant portion of the land area of the City of Edmonds must lie within the Regional Agency service area; and 2. The proposed site must reasonably serve the project's overall service population and the service population or service area lying within the City of Edmonds. B. The site has been designated through a collaborative process which involved representatives of the City of Edmonds duly appointed by the City and through a public hearing process which was reasonably calculated to reach the citizens of the City of Edmonds. 20.16.090 Denial of Regional EPF - Limitations Under the Growth Management Act, City ordinances shall not preclude the siting of an essential public facility of any kind. The purpose of this chapter is to impose reasonable conditions upon siting, not to preclude EPFs through denial. A Conditional Use Permit for an Essential Public Facility project proposed by a Regional Agency with jurisdiction shall be denied only i£ The proposed project conflicts with the proposed use of a particular site by another Regional Agency with jurisdiction. In the event of a conflict, at least the following factors shall be considered: a. Which proposal is most consistent with the City's Comprehensive Plan; b. Which proposal best serves the broadest interests of the City and its citizens; and C. Which proposal is first in time. 20.16.100 Permit approval; Suspension or revocation. If the project sponsor demonstrates compliance with the review criteria listed in ECDC 20.16.070 and satisfies the requirements for a conditional use permit and all other applicable requirements, the Hearing Examiner shall approve issuance of a conditional use permit for the proposed EPF. A Conditional Use Permit issued for an EPF of any kind, may be suspended or revoked if the sponsor fails to comply with the conditions of approval. { WSS605009. DOC;1 /00006.900000/} 20.16.110 Reconsideration and appeal Reconsideration of the hearing examiner's ruling shall be governed by ECDC 20.100.010. Appeal of the hearing examiner's ruling shall be governed by Chapter 20.105 ECDC. 20.16.120 Decision timing Review, reconsideration and remand process shall not be used to preclude an EPF. Cost and delay do not, prima facie, make an EPF permit review process unfair and untimely, nor be deemed to preclude an EPF. A reasonable consideration schedule shall be established based on the size and complexity of EPF proposals. 20.16.130 Building permit application A. Any building permit for an EPF approved under this chapter shall comply with all conditions of approval in the conditional use permit. In the event a building permit for an EPF is denied, suspended or revoked due to a failure to comply, the Department shall submit in writing the reasons for denial to the project sponsor. B. No construction permits may be applied for prior to conditional use approval of the EPF unless the applicant signs a written release acknowledging that such approval is neither guaranteed nor implied by the Department's acceptance of the construction permit applications. The applicant shall expressly accept all financial risk associated with preparing and submitting construction plans before the final decision is made under this chapter. C. Building permits for an EPF which fails to comply with the conditions of approval shall be suspended and a report made to the Director. The Director shall institute a proceeding before the Hearing Examiner to permit the EPF's sponsor a hearing at which to show cause why its conditional use permit should not be revoked or further conditioned. Such hearing shall be conducted in accordance with ECDC 20.010.040(C); Provided, however, that the hearing examiner's decision shall be final and appealable only to Superior Court pursuant to the Land Use Petition Act. Section 2. Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body is not subject to referendum and shall take { WSS605009.DOC;1 /00006.900000/} KIM effect five (5) days after passage and publication of an approved summary thereof consisting of the title. APPROVED: MAY R G f Y AAKENSON ATTEST /AUTHENTICATED: '�L� j- CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF T E C ATT EY: BY W. SCOTT SNYDER FILED WITH THE CITY CLERK: 10/28/2005 PASSED BY THE CITY COUNCIL: 11/01/2005 PUBLISHED: 11/09/2005 EFFECTIVE DATE: 11/14/2005 ORDINANCE NO. 3572 { WSS605009.DOC;1 /00006.900000/} -10- SUMMARY OF ORDINANCE NO. 3572 of the City of Edmonds, Washington On the I" day of November, 2005, the City Council of the City of Edmonds, passed Ordinance No. 3572. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, AMENDING TITLE 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE BY ADDING A NEW CHAPTER 20.16 ESSENTIAL PUBLIC FACILITIES THERETO, ADOPTING REGULATIONS GOVERNING THE SITING, PERMITTING AND MITIGATION OF ESSENTIAL PUBLIC FACILITIES, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE The full text of this Ordinance will be mailed upon request. DATED this 2nd day of November, 2005. ,"G1t� 'd - &-".' CITY CLERK, SANDRA S. CHASE { WSS605009.DOC;1 /00006.900000/} { W SS555894.DOC;1 /00006.900000 - 11 - Chapter 71.09 RCW SEXUALLY VIOLENT PREDATORS 1 RCW SECTIONS 71.09. 010 Findings. 71.09.015 Finding -- Intent -- Clarification. 71.09.020 Definitions. 71.09.025 Notice to prosecuting attorney prior to release. 71.09.030 Sexually violent predator petition -- Filing. 71.09.040 Sexually violent predator petition -- Probable cause hearing -- Judicial determination -- Transfer for evaluation. 71.09.050 Trial -- Rights of parties. 7-1.09.060 Trial -- Determination -- Commitment procedures. 71.09.070 Annual examinations of persons committed under chapter. 71.09.080 Rights of persons committed under this chapter. 71.09.085 Medical care -- Contracts for services. 71.09.090 Petition for conditional release to less restrictive alternative or unconditional discharge -- Procedures. 71.09.092 Conditional release to less restrictive alternative -- Findings. 71.09.094 Conditional release to less restrictive alternative -- Verdict. 71.09.096 Conditional release to less restrictive alternative -- Judgment -- Conditions -- Annual review. 71.09.098 Conditional release to less restrictive alternative -- Hearing on revocation or modification -- .Authority to apprehend conditionally released person. 71.09.110 Department of social and health services -- Duties -- Reimbursement. 71.09.112 Department of social and health services -- Jurisdiction continues after criminal conviction -- Exception. 71.09.115 Record check required for employees of secure facility. 71.09.120 Release of information authorized. 71.09.130 Notice of escape or disappearance. 71.09.135 McNeil Island -- Escape planning, response. 71.09.140 Notice of conditional release or unconditional discharge -- Notice of escape and recapture. 71.09.200 Escorted leave -- Definitions. 71.09.210 Escorted leave -- Conditions. 71.09.220 Escorted leave -- Notice. 71.09.230 Escorted leave -- Rules. 71.09.250 Transition facility -- Siting. 71.09.2501 "All other laws" defined. 71.09.252 Transition facilities -- Agreements for regional facilities. 71.09.255 Transition facilities -- Incentive grants and payments. Adopted by Reference Ordinance # 357z on City Clerk 71.09.260 Transition facilities not limited to residential neighborhoods. 71.09.265 Transition facilities -- Distribution of impact. 71.09.275 Transition facility -- Transportation of residents. 71.09.280 Transition facility -- Release to less restrictive placement. 71.09.285 Transition facility -- Siting policy guidelines. 71.09.290 Other transition facilities -- Siting policy guidelines. 71.09.295 Transition facilities -- Security systems. 71.09.300 Transition facilities =- Staffing. 71.09.305 Transition facility residents -- Monitoring, escorting. 71.09..310 Transition facility residents -- Mandatory escorts. 71.09.315 Transition facilities -- Public notice, review, and comment. 71.09.320 Transition facilities -- Operational advisory boards. 71.09.325 Transition facilities -- Conditional release -- Reports -- Violations. 71.09.330 Transition facilities -- Contracted operation -- Enforcement remedies. 71.09.335 Conditional release from total confinement -- Community notification. 71.09.340 Conditionally released persons -- Employment, educational notification. 71.09.341 Transition facilities -- Authority of department -- Effect of local regulations. 71.09.342 Transition facilities -- Siting -- Local regulations preempted, when -- Consideration of public safety measures. 71.09.343 Transition facilities -- Contract between state and local governments. 71.09.344 Transition facilities -- Mitigation agreements. 71.09.345 Alternative placement -- Authority of court. 71.09.350 Examination and treatment only by certified providers -- Exceptions. 71.09.800 Rules. 71.09.900 Index, part headings not law -- 1990 c 3. 71.09.901 Severability -- 1990 c 3. 71.09.902 Effective dates -- Application -- 1990 c 3. RCW 71.09.010 Findings. The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act, chapter 71.05 RCW, which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals With serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under chapter 71.05 RCW, sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior. The legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act, chapter 71.05 RCW, is inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement. The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act. [2001 c 286 § 3; 1990 c 3 § 1001.1 NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. Adopted by Reference Ordinance # 3572 on City Clerk RCW 71.09.015 Finding -- Intent -- Clarification. The legislature finds that presentation of evidence related to conditions of a less restrictive alternative that are beyond the authority of the court to order, and that would not exist in the absence of a court order, reduces the public respect for the rule of law and for the authority of the courts. Consequently, the legislature finds that the decision in In re the Detention of Casper Ross, 102 Wn. App 108 (2000), is contrary to the legislature's intent. The legislature hereby clarifies that it intends, and has always intended, in any proceeding under this chapter that the court and jury be presented only with conditions that would exist or that the court would have the authority to order in the absence of a finding that the person is a sexually violent predator. [2001 c 286 § 1.] NOTES: Recommendations -- 2001 c 286: "The department of social and health services shall, in consultation with interested stakeholders, develop recommendations for improving the procedures used to notify victims when a sexually violent predator is conditionally released to a less restrictive alternative under chapter 71.09 RCW, while at the same time maintaining the confidentiality of victim information." [2001 c 286 § 10.] Application -- 2001 c 286: "This act applies to all individuals currently committed or awaiting commitment under chapter 71.09 RCW either on, before, or after May 14, 2001, whether confined in a secure facility or on conditional release." [2001 c 286 § 14.] Effective date -- 2001 c 286: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 2001]." [2001 c 286 § 15.] RCW 71.09.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Department" means the department of social and health services. (2) "Health care facility" means any hospital, hospice care center, licensed or certified health care facility, health maintenance organization regulated under chapter 48.46 RCW, federally qualified health maintenance organization, federally approved renal dialysis center or facility, or federally approved blood bank. (3) "Health care practitioner" means an individual or firm licensed or certified to engage actively in a regulated health profession. (4) "Health care services" means those services provided by health professionals licensed pursuant to RCW 18.120.020(4). (5) "Health profession" means those licensed or regulated professions set forth in RCW 18. 120.020 (4)• (6) "Less restrictive alternative" means court- ordered treatment in a setting less restrictive than total confinement which satisfies the conditions set forth in RCW 71.09.092. (7) "Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030. (8) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others. (9) "Predatory" means acts directed towards: (a) Strangers; (b) individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or (c) persons of casual acquaintance with whom no substantial personal relationship exists. (10) 'Recent overt act" means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act. t (11) 'Risk potential activity" or "risk potential facility" means an activity or facility that provides a higher incidence of risk to the public from persons conditionally released from the special commitment center. Risk potential activities and facilities include: Public and private schools, school bus stops, licensed day care and licensed preschool facilities, public parks, publicly dedicated trails, sports fields, playgrounds, recreational and community centers, churches, synagogues, temples, mosques, public libraries, public and private youth camps, and others identified by the department following the hearings on a potential site required in RCW 71.09.315. For purposes of this chapter, "school bus stops" does not include bus stops established primarily for public transit. (12) "Secretary" means the secretary of social and health services or the secretary's designee. (13) "Secure facility" means a residential facility for persons civilly confined under the provisions of this chapter that includes security measures sufficient to protect the community. Such facilities include total confinement facilities, secure community transition facilities, and any residence used as a court - ordered placement under RCW 71.09.096. (14) "Secure community transition facility" means a residential facility for persons civilly committed and conditionally released to a less restrictive alternative under this chapter. A secure community transition facility has supervision and security, and either provides or ensures the provision of sex offender treatment services. Secure community transition facilities include but are not limited to the facility established pursuant to RCW 71.09.250(1)(a)(i) and any community -based facilities established under this chapter and operated by the secretary or under contract with the secretary. (15) "Sexually violent: offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the first degree, rape in the second degree by forcible compulsion, rape of a child in the first or second degree, statutory rape in the first or second degree, indecent liberties by forcible compulsion, indecent liberties against a child under age fourteen, incest against a child under age fourteen, or child molestation in the first or second degree; (b) a felony offense in effect at any time prior to July 1, 1990, that is comparable to a sexually violent offense as defined in (a) of this subsection, or any federal or out -of -state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection; (c) an act of murder in the first or second degree, assault in the first or second degree, assault of a child in the first or second degree, kidnapping in the first or second degree, burglary in the first degree, residential burglary, or unlawful imprisonment, which act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this chapter, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28 RCW, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in (a), (b), or (c) of this subsection. (16) "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. (17) "Total confinement facility" means a secure facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include the special commitment center and any similar facility designated as a total confinement facility by the secretary. [2003 c 216 § 2; 2003 c 50 § 1; 2002 c 68 § 4; 2002 c 58 § 2; 2001 2nd sp.s. c 12 § 102; 2001 c 286 § 4; 1995 c 216 § 1; 1992 c 145 § 17; 1990 1 st ex.s. c 12 § 2; 1990 c 3 § 1002.] NOTES: Reviser's note: This section was amended by 2003 c 50 § 1 and by 2003 c 216 § 2, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Severability -- Effective date -- 2003 c 216: See notes following RCW 71.09.300. Application -- 2003 c 50: "This act applies prospectively only and not retroactively and does not apply to development regulations adopted or amended prior to April 17, 2003." [2003 c 50 § 3.] Effective date -- 2003 c 50: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 17, 2003]." [2003 c 50 § 4.] Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. Effective date -- 2002 c 58: See note following RCW 71.09.085. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. Effective date - -1990 1st ex.s. c 12: See note following RCW 13.40.020. RCW 71.09.025 Notice to prosecuting attorney prior to release. (1)(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in *RCW 71.09.020(1), the agency with jurisdiction shall refer the person in writing to the prosecuting attorney of the county where that person was charged, three months prior to: (i) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense; (ii) The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile; (iii) Release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to RCW 10.77.090(4); or (iv) Release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to * *RCW 10.77.020(3). (b) The agency shall provide the prosecutor with all relevant information including but not limited to the following information: (i) A complete copy of the institutional records compiled by the department of corrections relating to the person, and any such out -of -state department of corrections' records, if available; (ii) A complete copy, if applicable, of any file compiled by the indeterminate sentence review board relating to the person; (iii) All records relating to the psychological or psychiatric evaluation and/or treatment of the person; (iv) A current record of all prior arrests and convictions, and full police case reports relating to those arrests and convictions; and (v) A current mental health evaluation or mental health records review. (2) This section applies to acts committed before, on, or after March 26, 1992. (3) The agency, its employees, and officials shall be immune from liability for any good -faith conduct under this section. (4) As used in this section, "agency with jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the department of corrections, the indeterminate sentence review board, and the department of social and health services. [2001 c 286 § 5; 1995 c 216 § 2; 1992 c 45 § 3.] NOTES: Reviser's note: *(1) RCW 71.09_020 was amended by 2001 2nd sp.s. c 12 § 102, changing subsection (1) to subsection (12). RCW 71.09.020 was subsequently amended by 2002 c 58 § 2, changing subsection (12) to subsection (16). * *(2) RCW 10.77.020 was amended by 1998 c 297 § 30, deleting subsection (3). Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09..015. Severability -- Application - -1992 c 45: See notes following RCW 9.94A.840. RCW 71.09.030 Sexually violent predator petition -- Filing. When it appears that: (1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement on, before, or after July 1, 1990; (2) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement on, before, or after July 1, 1990; (3) a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is about to be released, or has been released on, before, or after July 1, 1990, pursuant to *RCW 10.77.090(3); (4) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, or has been released on, before, or after July 1, 1990, pursuant to RCW * *10.77.020(3), 10.77.110 (1) or (3), or 10.77.150; or (5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition alleging that the person is a "sexually violent predator" and stating sufficient facts to support such allegation. [1995 c 216 § 3; 1992 c 45 § 4; 1990 1st ex.s. c 12 § 3; 1990 c 3 § 1003.] NOTES: Reviser's note: *(1) RCW 10.77.090 was amended by 1998 c 297 § 38, changing subsection (3) to subsection (4). * *(2) RCW 10.77.020 was amended by 1998 c 297 § 30, deleting subsection (3). Severability -- Application - -1992 c 45: See notes following RCW 9.94A.840. Effective date -- 19901st ex.s. c 12: See note following RCW 13.40.020. RCW 71.09.040 Sexually violent predator petition -- Probable cause hearing -- Judicial determination -- Transfer for evaluation. (1) Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody. (2) Within seventy -two hours after a person is taken into custody pursuant to subsection (1) of this section, the court shall provide the person with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the person is a sexually violent predator. At this hearing, the court shall (a) verify the person's identity, and (b) determine whether probable cause exists to believe that the person is a sexually violent predator. At the probable cause hearing, the state may rely upon the petition and certification for determination of probable cause filed pursuant to RCW 71.09.030. The state may supplement this with additional documentary evidence or live testimony. (3) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (a) To be represented by counsel; (b) to present evidence on his or her behalf; (c) to cross - examine witnesses who testify against him or her; (d) to view and copy all petitions and reports in the court file. (4) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the department of social and health services. In adopting such rules, the department of social and health services shall consult with the department of health and the department of corrections. In no event shall the person be released from confinement prior to trial. A witness called by either party shall be permitted to testify by telephone. [2001 c 286 § 6; 1995 c 216 § 4; 1990 c 3 § 1004.] NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. RCW 71.09.050 Trial -- Rights of parties. (1) Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to.the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist him or her. The person shall be confined in a secure facility for the duration of the trial. (2) Whenever any person is subjected to an examination under this chapter, he or she may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. (3) The person, the prosecuting attorney or attorney general, or the judge shall have the right to demand that the trial be before a twelve- person jury. If no demand is made, the trial shall be before the court. [1995 c 216 § 5; 1990 c 3 § 1005.1 RCW 71.09.060 Trial -- Determination -- Commitment procedures. (1) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. In determining whether or not the person would be likely to engage in predatory acts of sexual violence if not confined in a secure facility, the fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent predator petition. When the determination is made by a jury, the verdict must be unanimous. If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in *RCW 71.09.020(6)(c), the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated as defined in RCW 9.94A.030. If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the department of social and health services for placement in a secure facility operated by the department of social and health services for control; care, and treatment until such time as: (a) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community. If the court or unanimous jury decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release. If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and set a retrial within forty-five days of the date of the mistrial unless the prosecuting agency earlier moves to dismiss the petition. The retrial may be continued upon the request of either party accompanied by a showing of good cause, or by the court on its own motion in the due administration of justice provided that the respondent will not be substantially prejudiced. In no event may the person be released from confinement prior to retrial or dismissal of the case. (2) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to RCW 10.77.090(4), and his or her commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under RCW 10.77.090(4) that the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section. (3) The state shall comply with RCW 10.77.220 while confining the person pursuant to this chapter, except that during all court proceedings the person shall be detained in a secure facility. The department shall not place the person, even temporarily, in a facility on the grounds of any state mental facility or regional habilitation center because these institutions are insufficiently secure for this population. (4) A court has jurisdiction to order a less restrictive alternative placement only after a hearing ordered pursuant to RCW 71.09.090 following initial commitment under this section and in accord with the provisions of this chapter. [2001 c 286 § 7; 1998 c 146 § 1; 1995 c 216 § 6; 1990 1st ex.s. c 12 § 4; 1990 c 3 § 1006.] NOTES: *Reviser's note: RCW 71.09.020 was amended by 2001 2nd sp.s. c 12 § 102, changing subsection (6)(c) to subsection (11)(c). RCW 71.09_020 was subsequently amended by 2002 c 58 § 2, changing subsection (11)(c) to subsection (15)(c). Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. Effective date - -1998 c 146: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 25, 1998]." [1998 c 146 § 2.] Effective date - -1990 1st ex.s. c 12: See note following RCW 13.40.020. RCW 71.09.070 Annual examinations of persons committed under chapter. Each person committed under this chapter shall have a current examination of his or her mental condition made by the department of social and health services at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that would adequately protect the community. The department of social and health services shall file this periodic report with the court that committed the person under this chapter. The report shall be in the form of a declaration or certification in compliance with the requirements of RCW 9A.72.085 and shall be prepared by a professionally qualified person as defined by rules adopted by the secretary. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person and his or her counsel. The committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person. [2001 c 286 § 8; 1995 c 216 § 7; 1990 c 3 § 1007.] NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. RCW 71.09.080 Rights of persons committed under this chapter. (1) Any person subjected to restricted liberty as a sexually violent predator pursuant to this chapter shall not forfeit any legal right or suffer any legal disability as a consequence of any actions taken or orders made, other than as specifically provided in this chapter. (2) Any person committed pursuant to this chapter has the right to adequate care and individualized treatment. The department of social and health services shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations made pursuant to this chapter. All such records and reports shall be made available upon request only to: The committed person, his or her attorney, the prosecuting attorney, the court, the protection and advocacy agency, or another expert or professional person who, upon proper showing, demonstrates a need for access to such records. (3) At the time a person is taken into custody or transferred into a facility pursuant to a petition under this chapter, the professional person in charge of such facility or his or her designee shall take reasonable. precautions to inventory and safeguard the personal property of the persons detained or transferred. A copy of the inventory, signed by the staff member making it, shall be given to the person detained and shall, in addition, be open to inspection to any responsible relative, subject to limitations, if any, specifically imposed by the detained person. For purposes of this subsection, "responsible relative" includes the guardian, conservator, attorney, spouse, parent, adult child, or adult brother or sister of the person. The facility shall not disclose the contents of the inventory to any other person without consent of the patient or order of the court. (4) Nothing in this chapter prohibits a person presently committed from exercising a right presently available to him or her for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus. (5) No indigent person may be conditionally released or unconditionally discharged under this chapter without suitable clothing, and the secretary shall furnish the person with such sum of money as is required by RCW 72.02.100 for persons without ample funds who are released from correctional institutions. As funds are available, the secretary may provide payment to the indigent persons conditionally released pursuant to this chapter consistent with the optional provisions of RCW 72.02. 100 and 72.02.110, and may adopt rules to do so. [1995 c 216 § 8; 1990 c 3 § 1008.] RCW 71.09.985 Medical care -- Contracts for services. (1) Notwithstanding any other provisions of law, the secretary may enter into contracts with health care practitioners, health care facilities, and other entities or agents as may be necessary to provide basic medical care to residents. The contracts shall not cause the termination of classified employees of the department rendering the services at the time the contract is executed. (2) In contracting for services, the secretary is authorized to provide for indemnification of health care practitioners who cannot obtain professional liability insurance through reasonable effort, from liability on any action, claim, or proceeding instituted against them arising out of the good faith performance or failure of performance of services on behalf of the department. The contracts may provide that for the purposes of chapter 4.92 RCW only, those health care practitioners with whom the department has contracted shall be considered state employees. [2002 c 58 § l.] NOTES: Effective date -- 2002 c 58: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 21, 2002]." [2002 c 58 § 3.] RCW 71.09.090 Petition for conditional release to less restrictive alternative or unconditional discharge -- Procedures. (1) If the secretary determines that the person's condition has so changed that either: (a) The person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a hearing. (2)(a) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. The secretary shall provide the committed person with an annual written notice of the person's right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall file the notice and waiver form and the annual report with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community. (b) The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting attorney or attorney general shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to RCW 71.09.070. The committed person may present responsive affidavits or declarations to which the state may reply. (c) If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues. (d) If the court has not previously considered the issue of release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in RCW 71.09.094(1), the court shall consider whether release to a less restrictive alternative would be in the best interests of the person and conditions can be imposed that would adequately protect the community, without considering whether the person's condition has changed. (3)(a) At the hearing resulting from subsection (1) or (2) of this section, the committed person shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting agency or the attorney general if requested by the county shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The committed person shall also have the right to a jury trial and the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment. (b) If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof shall be upon the state to prove beyond a reasonable doubt that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible. (c) If the issue at the hearing is whether the person should be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that conditional release to any proposed less restrictive alternative either: (i) Is not in the best interest of the committed person; or (ii) does not include conditions that would adequately protect the community. Evidence of the prior commitment trial and disposition is admissible. (4)(a) Probable cause exists to believe that a person's condition has "so changed," under subsection (2) of this section, only when evidence exists, since the person's last commitment trial proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community. (b) A new trial proceeding under subsection (3) of this section may be ordered, or held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding: (i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or (ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment. (c) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding under subsection (3) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person. (5) The jurisdiction of the court over a person civilly committed pursuant to this chapter continues until such time as the person is unconditionally discharged. [2005 c 344 § 2; 2001 c 286 § 9; 1995 c 216 § 9; 1992 c 45 § 7; 1990 c 3 § 1009.] NOTES: Findings -- Intent -- 2005 c 344: "The legislature finds that the decisions in In re Young, 120 Wn. App. 753, review denied, Wn.2d (2004) and In re Ward, Wn. App. (2005) illustrate an unintended consequence of language in chapter 71.09 RCW. The Young and Ward decisions are contrary to the legislature's intent set forth in RCW 71.09_010 that civil commitment pursuant to chapter 71.09 RCW address the "very long - term" needs of the sexually violent predator population for treatment and the equally long -term needs of the community for protection from these offenders. The legislature finds that the mental abnormalities and personality disorders that make a person subject to commitment under chapter 71.09 RCW are severe and chronic and do not remit due solely to advancing age or changes in other demographic factors. The legislature finds, although severe medical conditions like stroke, paralysis, and some types of . dementia can leave a person unable to commit further sexually violent acts, that a mere advance in age or a change in gender or some other demographic factor after the time of commitment does not merit a new trial proceeding under RCW 71.09.090. To the contrary, the legislature finds that a new trial ordered under the circumstances set forth in Young and Ward subverts the statutory focus on treatment and reduces community safety by removing all incentive for successful treatment participation in favor of passive aging and distracting committed persons from fully engaging in sex offender treatment. The Young and Ward decisions are contrary to the legislature's intent that the risk posed by persons committed under chapter 71.09 RCW will generally require prolonged treatment in a secure facility followed by intensive community supervision in the cases where positive treatment gains are sufficient for community safety. The legislature has, under the guidance of the federal .court, provided avenues through which committed persons who successfully progress in treatment will be supported by the state in a conditional release to a less restrictive alternative that is in the best interest of the committed person and provides adequate safeguards to the community and is the appropriate next step in the person's treatment. The legislature also finds that, in some cases, a committed person may appropriately challenge whether he or she continues to meet the criteria for commitment. Because of this, the legislature enacted RCW 71.09.070 and 71.09.090, requiring a regular review of a committed person's status and permitting the person the opportunity to present evidence of a relevant change in condition from the time of the last commitment trial proceeding. These provisions are intended only to provide a method of revisiting the indefinite commitment due to a relevant change in the person's condition, not an alternate method of collaterally attacking a person's indefinite commitment for reasons unrelated to a change in condition. Where necessary, other existing statutes and court rules provide ample opportunity to resolve any concerns about prior commitment trials. Therefore, the legislature intends to clarify the "so changed" standard." [2005 c 344 § l.] Severability -- 2005 c 344: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2005 c 344 § 3.] Effective date -- 2005 c 344: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2005]." [2005 c 344 § 4.] Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. Severability -- Application -- 1992 c 45: See notes following RCW 9.94A.840. RCW 71.09.092 Conditional release to less restrictive alternative -- Findings. Before the court may enter an order directing conditional release to a less restrictive alternative, it must find the following: (1) The person will be treated by a treatment provider who is qualified to provide such treatment in the state of Washington under chapter 18.155 RCW; (2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for. such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center; (3) housing exists that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center if the person leaves the housing to which he or she has been assigned without authorization; (4) the person is willing to comply with the treatment provider and all requirements imposed by the treatment provider and by the court; and (5) the person is willing to comply with supervision requirements imposed by the department of corrections. [1995 c 216 § 10.] RCW 71.09.094 Conditional release to less restrictive alternative -- Verdict. (1) Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090 or through summary judgment proceedings prior to such a hearing, if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092 have been met, the court shall grant a motion by the state for a judgment as a matter of law on the issue of conditional release to a less restrictive alternative. (2) Whenever the issue of conditional release to a less restrictive alternative is submitted to the jury,. the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved beyond a reasonable doubt that either: (a) The proposed less restrictive alternative is not in the best interests of respondent; or (b) does not include conditions that would adequately protect the community? Answer: Yes or No. [2001 c 286 § 11; 1995 c 216 § 11.] NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. RCW 71.09.096 Conditional release to less restrictive alternative -- Judgment -- Conditions -- Annual review. (1) If the court or jury determines that conditional release to a less restrictive alternative is in the best interest of the person and includes conditions that would adequately protect the community, and the court determines that the minimum conditions set forth in RCW 71.09.092 and in this section are met, the court shall enter judgment and direct a conditional release. (2) The court shall impose any additional conditions necessary to ensure compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the person's compliance with treatment and protect the community, then the person shall be remanded to the custody of the department of social and health services for control, care, and treatment in a secure facility as designated in RCW 71,09.060(1). (3) If the service provider designated by the court to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a person's placement in a less restrictive alternative is other than the department of social and health services or the department of corrections, then the service provider so designated must agree in writing to provide such treatment, monitoring, or supervision in accord with this section. Any person providing or agreeing to provide treatment, monitoring, or supervision services pursuant to this chapter may be compelled to testify and any privilege with regard to such person's testimony is deemed waived. (4) Prior to authorizing any release to a less restrictive alternative, the court shall impose such conditions upon the person as are necessary to ensure the safety of the community. The court shall order the department of corrections to investigate the less restrictive alternative and recommend any additional conditions. to the court. These conditions shall include, but are not limited to the following: Specification of residence, prohibition of contact with potential or past victims, prohibition of alcohol and other drug use, participation in a specific course of inpatient or outpatient treatment that may include monitoring by the use of polygraph and plethysmograph, supervision by a department of corrections community corrections officer, a requirement that the person remain within the state unless the person receives prior authorization by the court, and any other conditions that the court determines are in the best interest of the person or others. A copy of the conditions of release shall be given to the person and to any designated service providers. (5) Any service provider designated to provide inpatient or outpatient treatment shall monthly, or as otherwise directed by the court, submit to the court, to the department of social and health services facility from which the person was released, to the prosecutor of the county in which the person was found to be a sexually violent predator, and to the supervising community corrections officer, a report stating whether the person is complying with the terms and conditions of the conditional release to a less restrictive alternative. (6) Each person released to a less restrictive alternative shall have his or her case reviewed by the court that released him or her no later than one year after such release and annually thereafter until the person is unconditionally discharged. Review may occur in a shorter time or more frequently, if the court, in its discretion on its own motion, or on motion of the person, the secretary, or the prosecuting attorney so determines. The sole question to be determined by the court is whether the person shall continue to be conditionally released to a less restrictive alternative. The court in making its determination shall be aided by the periodic reports filed pursuant to subsection (5) of this section and the opinions of the secretary and other experts or professional persons. [2001 c 286 § 12; 1995 c 216 § 12.] NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. RCW 71.09.098 Conditional release to less restrictive alternative -- Hearing on revocation or modification -- Authority to apprehend conditionally released person. (1) Any service provider submitting reports pursuant to RCW 71.09.096(6), the supervising community corrections officer, the prosecuting attorney, or the attorney general may petition the court, or the court on its own motion may schedule an immediate hearing, for the purpose of revoking or modifying the terms of the person's conditional release to a less restrictive alternative if the petitioner or the court believes the released person is not complying with the terms and conditions of his or her release or is in need of additional care, monitoring, supervision, or treatment. (2) If the prosecuting attorney, the supervising community corrections officer, or the court, based upon information received by them, reasonably believes that a conditionally released person is not complying with the terms and conditions of his or her conditional release to a less restrictive alternative, the court or community corrections officer may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the person's apprehension. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the examination. (3) The court, upon receiving notification of the person's apprehension, shall promptly schedule a hearing. The issue to be determined is whether the state has proven by a preponderance of the evidence that the conditionally released person did not comply with the terms and conditions of his. or her release. Hearsay evidence is admissible if the court finds it otherwise reliable. At the hearing, the court shall determine whether the person shall continue to be conditionally released on the same or modified conditions or whether his or her conditional release shall be revoked and he or she shall be committed to total confinement, subject to release only in accordance with provisions of this chapter. [2001 c 286 § 13; 1995 c 216 § 13.] NOTES: Recommendations -- Application -- Effective date -- 2001 c 286: See notes following RCW 71.09.015. RCW 71.09.110 Department of social and health services - Duties -- Reimbursement. The department of social and health services shall be responsible for all costs relating to the evaluation and treatment of persons committed to their custody whether in a secure facility or under a less restrictive alternative under any provision of this chapter. Reimbursement may be obtained by the department for the cost of care and treatment of persons committed to its custody whether in a secure facility or under a less restrictive alternative pursuant to RCW 43.20B.330 through 43.2013.370. [1995 c 216 § 14; 1990 c 3 § 1011.1 RCW 71.09.112 Department of social and health services -- Jurisdiction continues after criminal conviction -- Exception. A person subject to court order under the provisions of this chapter who is thereafter convicted of a criminal offense remains under the jurisdiction of the department following: (1) Completion of the criminal sentence; or (2) release from confinement in a state or local correctional facility, and shall be returned to the custody of the department. This section does not apply to persons subject to a court order under the provisions of this chapter who are thereafter sentenced to life without the possibility of release. [2002 c 19 § l.] RCW 71.09.115 Record check required for employees of secure facility. (1) The safety and security needs of the secure facility operated by the department of social and health services pursuant to RCW 71.09.060(1) make it vital that employees working in the facility meet necessary character, suitability, and competency qualifications. The. secretary shall require a record check through the Washington state patrol criminal identification system under chapter 10.97 RCW and through the federal bureau of investigation. The record check must include a fingerprint check using a complete Washington state criminal identification fingerprint card., The criminal history record checks shall be at the expense of the department. The secretary shall use the information only in making the initial employment or engagement decision, except as provided in subsection (2) of this section. Further dissemination or use of the record is prohibited. (2) This section applies to all current employees hired prior to June 6, 1996, who have not previously submitted to a department of social and health services criminal history records check. The secretary shall use the information only in determining whether the current employee meets the necessary character, suitability, and competency requirements for employment or engagement. [1996 c 27 § 1.] RCW 71.09.120 Release of information authorized. In addition to any other information required to be released under this chapter, the department is authorized, pursuant to RCW 4.24.550, to release relevant information that is necessary to protect the public, concerning a specific sexually violent predator committed under this chapter. [1990 c 3 § 1012.] RCW 71.09.130 Notice of escape or disappearance. In the event of an escape by a person committed under this chapter from a state institution or the disappearance of such a person while on conditional release, the superintendent or community corrections officer shall notify the following as appropriate: Local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons about information necessary for the public safety or to assist in the apprehension of the person. [1995 c 216 § 16.] RCW 71.09.135 McNeil Island -- Escape planning, response. The emergency response team for McNeil Island shall plan, coordinate, and respond in the event of an escape from the special commitment center or the secure community transition facility. [2003 c 216 § 6.] NOTES: Severability -- Effective date -- 2003 c 216: See notes following RCW 71.09.300. RCW 71.09.140 Notice of conditional release or unconditional discharge -- Notice of escape and recapture. (1) At the earliest possible date, and in no event later than thirty days before conditional release or unconditional discharge, except in the event of escape, the department of social and health services shall send written notice of conditional release, unconditional discharge, or escape, to the following: (a) The chief of police of the city, if any, in which the person will reside or in which placement will be made under a less restrictive alternative; (b) The sheriff of the county in which the person will reside or in which placement will be made under a less restrictive alternative; and (c) The sheriff of the county where the person was last convicted of a sexually violent offense, if the department does not know where the person will reside. The department shall notify the state patrol of the release of all sexually violent predators and that information shall be placed in the Washington crime information center for dissemination to all law enforcement. (2) The same notice as required by subsection (1) of this section shall be sent to the following if such notice has been requested in writing about a specific person found to be a sexually violent predator under this chapter: (a) The victim or.victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. "Next of kin" as used in this section means a person's spouse, parents, siblings, and children; (b) Any witnesses who testified against the person in his or her commitment trial under RCW 71.09.060; and (c) Any person specified in writing by the prosecuting attorney. Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the. notice, and the notice are confidential and shall not be available to the committed person. (3) If a person committed as a sexually violent predator under this chapter escapes from a department of social and health services facility, the department shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the committed person resided immediately before his or her commitment as a sexually violent predator, or immediately before his or her incarceration for his or her most recent offense. If previously requested, the department shall also notify the witnesses and the victims of the sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. If the person is recaptured, the department shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (4) If the victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child. (5) The department of social and health services shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address. (6) Nothing in this section shall impose any liability upon a chief of police of a city or sheriff of a county for failing to request in writing a notice as provided in subsection (1) of this section. [1995 c 216 § 17.] RCW 71.09.200 Escorted leave -- Aefmitions. For purposes of RCW 71.09.210 through 71.09.230: (1) "Escorted leave" means a leave of absence from a facility housing persons detained or committed pursuant to this chapter under the continuous supervision of an escort. (2) "Escort" means a correctional officer or other person approved by the superintendent or the superintendent's designee to accompany a resident on a leave of absence and be in visual or auditory contact with the resident at all times. (3) "Resident" means a person detained or committed pursuant to this chapter. [1995 c 216 § 18.] RCW 71.09.210 Escorted leave -- Conditions. The superintendent of any facility housing persons detained or committed pursuant to this chapter may, subject to the approval of the secretary, grant escorted leaves of absence to residents confined in such institutions to: (1) Go to the bedside of the resident's wife, husband, child, mother or father, or other member of the resident's immediate family who is seriously ill; (2) Attend the funeral of a member of the resident's immediate family listed in subsection (1) of this section; and (3) Receive necessary medical or dental care which is not available in the institution. [1995 c 216 § 19.] RCW 71.09.220 Escorted leave -- Notice. A resident shall not be allowed to start a leave of absence under RCW 71.09.210 until the secretary, or the secretary's designee, has notified any county and city law enforcement agency having jurisdiction in the area of the resident's destination. [1995 c 216 § 20.] RCW 71.09.230 Escorted leave -- Rules. (1) The secretary is authorized to adopt rules providing for the conditions under which residents will be granted leaves of absence and providing for safeguards to prevent escapes while on leaves of absence. Leaves of absence granted to residents under RCW 71.09.210, however, shall not allow or permit any resident to go beyond the boundaries of this state. (2) The secretary shall adopt rules requiring reimbursement of the state from the resident granted leave of absence, or the resident's family, for the actual costs incurred arising from any leave of absence granted under the authority of RCW 71.09.210 (1) and (2). No state funds shall be expended in connection with leaves of absence granted under RCW 71.09.210 (1) and (2) unless the resident and the resident's immediate family are indigent and without resources sufficient to reimburse the state for the expenses of such leaves of absence. [1995 c 216 § 21.] RCW 71.09.250 Transition facility -- Siting. (1)(a) The secretary is authorized to site, construct, occupy, and operate (i) a secure community transition facility on McNeil Island for persons authorized to petition for a less restrictive alternative under RCW 71.09.090(1) and who are conditionally released; and (ii) a special commitment center on McNeil Island with up to four hundred four beds as a total confinement facility under this chapter, subject to appropriated funding for those purposes. The secure community transition facility shall be authorized for the number of beds needed to ensure compliance with the orders of the superior courts under this chapter and the federal district court for the western district of Washington. The total number of beds in the secure community transition facility shall be limited to twenty -four, consisting of up to fifteen transitional beds and up to nine pretransitional beds. The residents occupying the transitional beds shall be the only residents eligible for transitional services occurring in Pierce county. In no event shall more than fifteen residents of the secure community transition facility be participating in off -island transitional, educational, or employment activity at the same time in Pierce county. The department shall provide the Pierce county sheriff, or his or her designee, with a list of the fifteen residents so designated, along with their photographs and physical descriptions, and the list shall be immediately updated whenever a residential change occurs. The Pierce county sheriff, or his or her designee, shall be provided an opportunity to confirm the residential status of each resident leaving McNeil Island. (b) For purposes of this subsection, "transitional beds" means beds only for residents who are judged by a qualified expert to be suitable to leave the island for treatment, education, and employment. (2)(a) The secretary is authorized to site, either within the secure community transition facility established pursuant to subsection (1)(a)(i) of this section, or within the special commitment center, up to nine pretransitional beds. (b) Residents assigned to pretransitional beds shall not be permitted to leave McNeil Island for education, employment, treatment, or community activities in Pierce county. (c) For purposes of this subsection, "pretransitional beds" means beds for residents whose progress toward a less secure residential environment and transition into more complete community involvement is projected to take substantially longer than a typical resident of the special commitment center. (3) Notwithstanding RCW 36.70A.103 or any other law, this statute preempts and supersedes local plans, development regulations, permitting requirements, inspection requirements, and all other laws as necessary to enable the secretary to site, construct, occupy, and operate a secure community transition facility on McNeil Island and a total confinement facility on McNeil Island. (4) To the greatest extent possible, until June 30, 2003, persons who were not civilly committed from the county in which the secure community transition facility established pursuant to subsection (1) of this section is located may not be conditionally released to a setting in that same county less restrictive than that facility. (5) As of June 26, 2001, the state shall immediately cease any efforts in effect on such date to site secure community transition facilities, other than the facility authorized by subsection (1) of this section, and shall instead site such facilities in accordance with the provisions of this section. (6) The department must: (a) Identify the minimum and maximum number of secure community transition facility beds in addition to the facility established under subsection (1) of this section that may be necessary for the period of May 2004 through May 2007 and provide notice of these numbers to all counties by August 31, 2001; and (b) Develop and publish policy guidelines for the siting and operation of secure community transition facilities. (7)(a) The total number of secure community transition facility beds that may be required to be sited in a county between June 26, 2001, and June 30, 2008, may be no greater than the total number of persons civilly committed from that county, or detained at the special commitment center under a pending civil commitment petition. from that county where a finding of probable cause had been made on April 1, 2001. The total number of secure community transition facility beds required to be sited in each county between July 1, 2008, and June 30, 2015, may be no greater than the total number of persons civilly committed from that county or detained at the special commitment center under a pending civil commitment petition from that county where a finding of probable cause had been made as of July 1, 2008. (b) Counties and cities that provide secure community transition facility beds above the maximum number that they could be required to site under this subsection are eligible for a bonus grant under the incentive provisions in RCW 71.09.255. The county where the special commitment center is located shall receive this bonus grant for the number of beds in the facility established in subsection (1) of this section in excess of the maximum number established by this subsection. (c) No secure community transition facilities in addition to the one established in subsection (1) of this section may be required to be sited in the county where the special commitment center is located until after June 30, 2008, provided however, that the county and its cities may elect to site additional secure community transition facilities and shall be eligible under the incentive provisions of RCW 71.09.255 for any additional facilities meeting the requirements of that section. (8) In identifying potential sites within a county for the location of a secure community transition facility, the department shall work with and assist local governments to provide for the equitable distribution of such facilities. In coordinating and deciding upon the siting of secure community transition facilities, great weight shall be given by the county and cities within the county to: (a) The number and location of existing residential facility beds operated by the department of corrections or the mental health division of the department of social and health services in each jurisdiction in the county; and (b) The number of registered sex offenders classified as level II or level III and the number of sex offenders registered as homeless residing in each jurisdiction in the county. (9)(a) "Equitable distribution" means siting or locating secure community transition facilities in a manner that will not cause a disproportionate grouping of similar facilities either in any one county, or in any one jurisdiction or community within a county, as relevant; and (b) "Jurisdiction" means a city, town, or geographic area of a county in which distinct political or judicial authority may be exercised. [2003 c 216 § 3; 2001 2nd sp.s. c 12 § 201.] NOTES: Severability -- Effective date -- 2003 c 216: See notes following RCW 71.09.300. Intent -- 2001 2nd sp.s. c 12: "The legislature intends the following omnibus bill to address the management of sex offenders in the civil commitment and criminal justice systems for purposes of public health, safety, and welfare. Provisions address siting of and continued operation of facilities for persons civilly committed under chapter 71.09 RCW and sentencing of persons who have committed sex offenses. Other provisions address the need for sex offender treatment providers with specific credentials. Additional provisions address the continued operation or authorized expansion of criminal justice facilities at McNeil Island, because these facilities are impacted by the civil facilities on McNeil Island for persons committed under chapter 7 1. 09 RCW." [2001 2nd sp.s. c 12 § 101.] Severability -- 2001 2nd sp.s. c 12: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons, or circumstances is not affected." [2001 2nd sp.s. c 12 § 504.] Effective dates -- 2001 2nd sp.s. c 12: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [June 26, 2001], except for sections 301 through 363, 501, and 503 of this act which take effect September 1, 2001." [2001 2nd sp.s. c 12 § 505.] RCW 71.09.2501 "All other laws" defined. (Expires June 30, 2009.) An emergency has been caused by the need to expeditiously site facilities to house sexually violent predators who have been committed under this chapter. To meet this emergency, for purposes of RCW 71.09.250 and 71.09.342, "all other laws" means the state environmental policy act, the shoreline management act, the hydraulics code, and all other state laws regulating the protection and use of the water, land, and air. This section expires June 30, 2009. [2002 c 68 § 11.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. RCW 71.09.252 Transition facilities -- Agreements for regional facilities. (1) To encourage economies of scale in the siting and operation of secure community transition facilities, the department may enter into an agreement with two or more counties to create a regional secure community transition facility. The agreement must clearly identify the number of beds from each county that will be contained in the regional secure community transition facility. The agreement must specify which county must contain the regional secure community transition facility and the facility must be sited accordingly. No county may withdraw from an agreement under this section unless it has provided an alternative acceptable secure community transition facility to house any displaced residents that meets the criteria established for such facilities in this chapter and the guidelines established by the department. (2) A regional secure community transition facility must meet the criteria established for secure community transition facilities in this chapter and the guidelines established by the department. .(3) The department shall count the beds identified for each participating county in a regional secure community transition facility against the maximum number of beds that could be required for each county under RCW 71.09.250(7)(a). (4) An agreement for a regional secure community transition facility does not alter the maximum number of beds for purposes of the incentive grants under RCW 71.09.255 for the county containing the regional facility. [2002 c 68 § 18.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. RCW 71.09.255 Transition facilities -- Incentive grants and payments. (1) Upon receiving the notification required by RCW 71.09.250, counties must promptly notify the cities within the county of the maximum number of secure community transition facility beds that may be required and the projected number of beds to be needed in that county. (2) The incentive grants and payments provided under this section are subject to the following provisions: (a) Counties and the cities within the county must notify each other of siting plans to promote the establishment and equitable distribution of secure community transition facilities; (b) Development regulations, ordinances, plans, laws, and criteria established for siting must be consistent with statutory requirements and rules applicable to siting and operating secure community transition facilities; (c) The minimum size for any facility is three beds; and (d) The department must approve any sites selected. (3) Any county or city that makes a commitment to initiate the process to site one or more secure community transition facilities by one hundred twenty days after March 21, 2002, shall receive a planning grant as proposed and approved by the department of community, trade, and economic development. (4) Any county or city that has issued all necessary permits by May 1, 2003, for one or more secure community transition facilities that comply with the requirements of this section shall receive an incentive grant in the amount of fifty thousand dollars for each bed sited. (5) To encourage the rapid permitting of sites, any county or city that has issued all necessary permits by January 1, 2003, for one or more secure community transition facilities that comply with the requirements of this section shall receive a bonus in the amount of twenty percent of the amount provided under subsection (4) of this section. (6) Any county or city that establishes secure community transition facility beds in excess of the maximum number that could be required to be sited in that county shall receive a bonus payment of one hundred thousand dollars for each bed established in excess of the maximum requirement. (7) No payment shall be made under subsection (4), (5), or (6) of this section until all necessary permits have been issued. (8) The funds available to counties and cities under this section are contingent upon funds being appropriated by the legislature. [2002 c 68 § 8; 2001 2nd sp.s. c 12 § 204.1 NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.260 Transition facilities not limited to residential neighborhoods. The provisions of chapter 12, Laws of 2001 2nd sp. sess. shall not be construed to limit siting of secure community transition facilities to residential neighborhoods. [2001 2nd sp.s. c 12 § 206.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.265 Transition facilities -- Distribution of impact. (1) The department shall make reasonable efforts to distribute the impact of the employment, education, and social services needs of the residents of the secure community transition facility established pursuant to RCW 71.09.250(1) among the adjoining counties and not to concentrate the residents' use of resources in any one community. . (2) The department shall develop policies to ensure that, to the extent possible, placement of persons eligible in the future for conditional release to a setting less restrictive than the facility established pursuant to RCW 71.09.250(1) will be equitably distributed among the counties and within jurisdictions in the county. [2001 2nd sp.s. c 12 § 208.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.275 Transition facility -- Transportation of residents. (1) If the department does not provide a separate vessel for transporting residents of the secure community transition facility established in RCW 71.09.250(1) between McNeil Island and the mainland, the department shall: (a) Separate residents from minors and vulnerable adults, except vulnerable adults who have been found to be sexually violent predators. (b) Not transport residents during times when children are normally coming to and from the mainland for school. (2) The department shall designate a separate waiting area at the points of debarkation, -and residents shall be required to remain in this area while awaiting transportation. (3) The department shall provide law enforcement agencies in the counties and cities in which residents of the secure community transition facility established pursuant to RCW 71.09.250(1)(a)(i) regularly participate in employment, education, or social services, or through which these persons are regularly transported, with a copy of the court's order of conditional release with respect to. these persons. [2003 c 216 § 4; 2001 2nd sp.s. c 12 § 211.] NOTES: Severability - -. Effective date -- 2003 c 216: See notes following RCW 71.09.300. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250.: RCW 71.09.280 Transition facility -- Release to less restrictive placement. When considering whether a person civilly committed under this chapter and conditionally released to a secure community transition facility is appropriate for release to a placement that is less restrictive than that facility, the court shall comply with the procedures set forth in RCW 71.09.090 through 71.09.096. In addition, the court shall consider whether the person has progressed in treatment to the point that a significant change in the person's routine, including but not limited to a change of employment, education, residence, or sex offender treatment provider will not cause the person to regress to the point that the person presents a greater risk to the community than can reasonably be addressed in the proposed placement. [2001 2nd sp.s. c 12 § 212.] NOTES: .Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.285 Transition facility -- Siting policy guidelines. (1) Except with respect to the secure community transition facility established pursuant to RCW 71.09.250, the secretary shall develop policy guidelines that balance the average response time of emergency services to the general area of a proposed secure community transition facility against the proximity of the proposed site to risk potential activities and facilities in existence at the time the site is listed for consideration. (2) In no case shall the policy guidelines permit location of a facility adjacent to, immediately across a street or parking lot from, or within the line of sight of a risk potential activity or facility in existence at the time a site is listed for consideration. "Within the line of sight" means that it is possible to reasonably visually distinguish and recognize individuals. (3) The policy guidelines shall require that great weight be given to sites that are the farthest removed from any risk potential activity. (4) The policy guidelines shall specify how distance from the location is measured and any variations in the measurement based on the size of the property within which a proposed facility is to be located. (5) The policy guidelines shall establish a method to analyze and compare the criteria for each site in terms of public safety and security, site characteristics, and program components. In making a decision regarding a site following the analysis and comparison, the secretary shall give priority to public safety and security considerations. The analysis and comparison of the criteria are to be documented and made available at the public hearings prescribed in RCW 71.09.315. (6) Policy guidelines adopted by the secretary under this section shall be considered by counties and cities when providing for the siting of secure community transition facilities as required under RCW 36.70A.200. [2002 c 68 § 5; 2001 2nd sp.s. c 12 § 213.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.290 Other transition facilities -- Siting policy guidelines. The. secretary shall establish policy guidelines for the siting of secure community transition facilities, other than the secure community transition facility established pursuant to RCW 71.09.250(1)(a)(i), which shall include at least the following minimum requirements: (1) The following criteria must be considered prior to any real property being listed for consideration for the location of or use as a secure community transition facility: (a) The proximity and response time criteria established under RCW 71.09.285; (b) The site or building is available for lease for the anticipated use period or for purchase; (c) Security monitoring services and appropriate back -up systems are available and reliable; (d) Appropriate mental health and sex offender treatment providers must be available within a reasonable commute; and (e) Appropriate permitting for a secure community transition facility must be possible under the zoning code of the local jurisdiction. (2) For sites which meet the criteria of subsection (1) of this section, the department shall analyze and compare the criteria in subsections (3) through (5) of this section using the method established in RCW 71.09285. (3) Public safety and security criteria shall include at least the following: (a) Whether limited visibility between the facility and adjacent properties can be achieved prior to placement of any person; (b) The distance from, and number of, risk potential activities and facilities, as measured using the policies adopted under RCW 71.09.285; (c) The existence of or ability to establish barriers between the site and the risk potential facilities and activities; (d) Suitability of the buildings to be used for the secure community transition facility with regard to existing or feasibly modified features; and (e) The availability of electronic monitoring that allows a resident's location to be determined with specificity. (4) Site characteristics criteria shall include at least the following: (a) Reasonableness of rental, lease, or sale terms including length and renewability of a lease or rental agreement; (b) Traffic and access patterns associated with the real property; (c) Feasibility of complying with zoning requirements within the necessary time frame; and (d) A contractor or contractors are available to install, monitor, and repair the necessary security and alarm systems. (5) Program characteristics criteria shall include at least the following: (a) Reasonable proximity to available medical, mental health, sex offender, and chemical dependency treatment providers and facilities; (b) Suitability of the location for programming, staffing, and support considerations; (c) Proximity to employment, educational, vocational, and other treatment plan components. (6) For purposes of this section "available" or "availability" of qualified treatment providers includes provider qualifications and willingness to provide services, average commute time, and cost of services. [2003 c 216 § 5; 2001 2nd sp.s. c 12 § 214.] NOTES: Severability -- Effective date -- 2003 c 216: See notes following RCW 71.09.300. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.295 Transition facilities -- Security systems. (1) Security systems for all secure community transition facilities shall meet the following minimum qualifications: (a) The security panel must be a commercial grade panel with tamper -proof switches and a key -lock to prevent unauthorized access. (b) There must be an emergency electrical supply system which shall include a battery back -up system and a generator. (c) The system must include personal panic devices for all staff. (d) The security system must be capable of being monitored and signaled either by telephone through either a land or cellular telephone system or by private radio network in the event of a total dial -tone failure or through equivalent technologies. (e) The department shall issue photo - identification badges to all staff which must be worn at all times. (2) Security systems for the secure community transition facility established pursuant to RCW 71.09.250(1) shall also include a fence and provide the maximum protection appropriate in a civil facility for persons in less than total confinement. [2001 2nd sp.s. c 12 § 215.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.300 Transition facilities -- Staffing. Secure community transition facilities shall meet the following minimum staffing requirements: (1)(a) At any time the census of a facility that accepts its first resident before July 1, 2003, is six or fewer residents, the facility shall maintain a minimum staffing ratio of one staff per three residents during normal waking hours and one awake staff per four residents during normal sleeping hours. In no case shall the staffing ratio permit less than two staff per housing unit. (b) At any time the census of a facility that accepts its first resident on or after July 1, 2003, is six or fewer residents, the facility shall maintain a minimum staffing ratio of one staff per resident during normal waking hours and two awake staff per three residents during normal sleeping hours. In no case shall the staffing ratio permit less than two staff per housing unit. (2) At any time the census of a facility is six or fewer residents, all staff shall be classified as residential rehabilitation counselor II or have a classification that indicates an equivalent or higher level of skill, experience, and training. (3) Before being assigned to a facility, all staff shall have training in sex offender issues, self - defense, and crisis de- escalation skills in addition to departmental orientation and, as appropriate, management training. All staff with resident treatment or care duties must participate in ongoing in- service training. .(4) All staff must pass a departmental background check and the check is not subject to the limitations in chapter 9.96A RCW. A person who has been convicted of a felony, or any sex offense, may not be employed at the secure community transition facility or be approved as an escort for a resident of.the facility. [2003 c 216 § 1; 2001 2nd sp.s. c 12 § 216.] NOTES: Severability -- 2003 c 216: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2003 c 216 § 8.] Effective date - -2003 c 216: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2003." [2003 c 216 § 9.] . Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.305 Transition facility residents -- Monitoring, escorting. (1) Unless otherwise ordered by the court: (a) Residents of a secure community transition facility shall wear electronic monitoring devices at all times. To the extent that electronic monitoring devices that employ global positioning system technology are available and funds for this purpose are appropriated by the legislature, the department shall use these devices. (b) At least one staff member, or other court- authorized and department- approved person must escort each resident when the resident leaves the secure community transition facility for appointments, employment, or other approved activities. Escorting persons must supervise the resident closely and maintain close proximity to the resident. The escort must immediately notify the department of any serious violation, as defined in RCW 71.09.325, by the resident and must immediately notify law enforcement of any violation of law by the resident. The escort may not be a relative of the resident or a person with whom the resident has, or has had, a dating relationship as defined in RCW 26.50.010. (2) Staff members of the special commitment center and any other total confinement facility and any secure community transition facility must be trained in self - defense and appropriate crisis responses including incident de- escalation. Prior to escorting a person outside of a facility, staff members must also. have training in the offense pattern of the offender they are escorting. (3) Any escort must carry a cellular telephone or a similar device at all times when escorting a resident of a secure community transition facility. (4) The department shall require training in offender pattern, self - defense, and incident response for all court- authorized escorts who are not employed by the department or the department of corrections. [2002 c 68 § 6; 2001 2nd sp.s. c 12 § 217.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.310 Transition facility residents -- Mandatory escorts. Notwithstanding the provisions of RCW 71.09.305, residents of the secure community transition facility established pursuant to RCW 71.09.250(1) must be escorted at anytime the resident leaves the facility. [2001 2nd sp.s. c 12 § 218.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.315 Transition facilities -- Public notice, review, and comment. (1) Whenever the department operates, or the secretary enters into a contract to operate, a secure community transition facility except the secure community transition facility established pursuant to RCW 71.09.250(1), the secure community transition facility may be operated only after the public notification and opportunities for review and comment as required by this section. (2) The secretary shall establish a process for early and continuous public participation in establishing or relocating secure community transition facilities. The process shall include, at a minimum, public meetings in the local communities affected, as well as opportunities for written and oral comments, in the following manner: (a) If there are more than three sites initially selected as potential locations and the selection process by the secretary or a service provider reduces the number of possible sites for a secure community transition facility to no fewer than three, the secretary or the chief operating officer of the service provider shall notify the public of the possible siting and hold at least two public hearings in each community where a secure community transition facility may be sited. (b) When the secretary or service provider has determined the secure community transition facility's location, the secretary or the chief operating officer of the service provider shall hold at least one additional public hearing in the community where the secure community transition facility will be sited. (c) When the secretary has entered negotiations with a service provider and only one site is under consideration, then at least two public hearings shall be held. (d) To provide adequate notice of, and opportunity for interested persons to comment on, a proposed location, the secretary or the chief operating officer of the service provider shall provide at least fourteen days' advance notice of the meeting to all newspapers of general circulation in the community, all radio and television stations generally available to persons in the community, any school district in which the secure community transition facility would be sited or whose boundary is within two miles of a proposed secure community transition facility, any library district in which the secure community transition facility would be sited, local business or fraternal organizations that request notification from the secretary or agency, and any person or property owner within a one -half mile radius of the proposed secure community transition facility. Before initiating this process, the department of social and health services shall contact local government planning agencies in the communities containing the proposed secure community transition facility. The department of social and health services shall coordinate with local government agencies to ensure that opportunities are provided for effective citizen input and to reduce the duplication of notice and meetings. (3) If local government land use regulations require that a special use or conditional use permit be submitted and approved before a secure community transition facility can be sited, and the process for obtaining such a permit includes public notice and hearing requirements similar to those required under this section, the requirements of this section shall not apply to the extent they would duplicate requirements under the local land use regulations. (4) This section applies only to secure community transition facilities sited after June 26, 2001. [2001 2nd sp.s. c 12 § 219.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.320 Transition facilities -- Operational advisory boards. (1) The secretary shall develop a process with local governments that allows each community in which a secure community transition facility is located to establish operational advisory boards of at least seven persons for the secure community transition facilities. The department may conduct community awareness activities to publicize this opportunity. The operational advisory boards developed under this section shall be implemented following the decision to locate a secure community transition facility in a particular community. (2) The operational advisory boards may review and make recommendations regarding the security and operations of the secure community transition facility and conditions or modifications necessary with relation to any person who the secretary proposes to place in the secure community transition facility. (3) The facility management must consider the recommendations of the community advisory boards. Where the facility management does not implement an operational advisory board recommendation, the management must provide a written response to the operational advisory board stating its reasons for its decision not to implement the recommendation. (4) The operational advisory boards, their members, and any agency represented by a member shall not be liable in any'cause of action as a result of its recommendations unless the advisory board acts with gross negligence or bad faith in making a recommendation. [2001 2nd sp.s. c 12 § 220.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.325 Transition facilities -- Conditional release -- Reports -- Violations. (1) The secretary shall adopt a violation reporting policy for persons conditionally released to less restrictive alternative placements. The policy shall require written documentation by the department and service providers of all violations of conditions set by the department, the department of corrections, or the court and establish criteria for returning a violator to the special commitment center or a secure community transition facility with a higher degree of security. Any conditionally released person who commits a serious violation of conditions shall be returned to the special commitment center, unless arrested by a law enforcement officer, and the court shall be notified immediately and shall initiate proceedings under RCW 71.09.098 to revoke or modify the less restrictive alternative placement. Nothing in this section limits the authority of the department to return a person to the special commitment center based on a violation that is not a serious violation as defined in this section. For the purposes of this section, "serious violation" includes but is not limited to: (a) The commission of any criminal offense; (b) Any unlawful use or possession of a controlled substance; and (c) Any violation of conditions targeted to address the person's documented pattern of offense that increases the risk to public safety. (2) When a person is conditionally released to a less restrictive alternative under this chapter and is under the supervision of the department of corrections, notice of any violation of the person's conditions of release must also be made to the department of corrections. (3) Whenever the secretary contracts with a service provider to operate a secure community transition facility, the contract shall include a requirement that the service provider must report to the department of social and health services any known violation of conditions committed by any resident of the secure community transition facility. (4) The secretary shall document in writing all violations, penalties, actions by the department of social and health services to remove persons from a secure community transition facility, and contract terminations. The secretary shall compile this information and submit it to the appropriate committees of the legislature on an annual basis. The secretary shall give great weight to a service provider's record of violations, penalties, actions by the department of social and health services or the department of corrections to remove persons from a secure community transition facility, and contract terminations in determining whether to execute, renew, or renegotiate a contract with a service provider. [2001 2nd sp.s. c 12 § 221.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.330 Transition facilities -- Contracted operation -- Enforcement remedies. Whenever the secretary contracts with a provider to operate a secure community transition facility, the secretary shall include in the contract provisions establishing intermediate contract enforcement remedies. [2001.2nd sp.s. c 12 § 222.1 NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.335 Conditional release from total confinement -- Community notification. A conditional release from a total confinement facility to a less restrictive alternative is a release that subjects the conditionally released person to the registration requirements specified in RCW 9A.44.130 and to community notification under RCW 4.24.550. . When a person is conditionally released to the secure community transition facility established pursuant to RCW 71.09.250(1), the sheriff must provide each household on McNeil Island with the community notification information provided for under RCW 4.24.550. [2001 2nd sp.s. c 12 § 223.1 NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.340 Conditionally released persons -- Employment, educational notification. An employer who hires a person who has been conditionally released to a less restrictive alternative must notify all other employees of the conditionally released person's status. Notification for conditionally released persons who enroll in an institution of higher education shall be made pursuant to the provisions of RCW 9A.44.130 related to sex offenders enrolled in institutions of higher education and RCW 4.24.550. This section applies only to conditionally released persons whose court- approved treatment plan includes permission or a requirement for the person to obtain education or employment and to employment positions or educational programs that meet the requirements of the court- approved treatment plan. [2001 2nd sp.s. c 12 § 224.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.341 Transition facilities -- Authority of department -- Effect of local regulations. The minimum requirements'set out in RCW 71.09.285 through 71.09.340 are minimum requirements to be applied by the department. Nothing in this section is intended to prevent a city or county from adopting development regulations, as defined in RCW 36.70A.030, unless the proposed regulation imposes requirements more restrictive than those specifically addressed in RCW 71.09.285 through 71.09.340. Regulations that impose requirements more restrictive than those specifically addressed in these sections are void. Nothing in these sections prevents the department from adding requirements to enhance public safety. [2002 c 68 § 7.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. RCW 71.09.342 Transition facilities -- Siting -- Local regulations preempted, when -- Consideration of public safety measures. (1) After October 1, 2002, notwithstanding RCW 36.70A.103 or any other law, this section preempts and supersedes local plans, development regulations, permitting requirements, inspection requirements, and all other laws as necessary to enable the department to site, construct, renovate, occupy, and operate secure community transition facilities within the borders of the following: (a) Any county that had five or more persons civilly committed from that county, or detained at the special commitment center under a pending civil commitment petition from that county where a finding of probable cause has been made, on April 1, 2001, if the department determines that the county has not met the requirements of RCW 36.70A.200 with respect to secure community transition facilities. This subsection does not apply to the county in which the secure community transition facility authorized under RCW 71.09.250(1) is located; and .(b) Any city located within a county listed in (a) of this subsection that the department determines has not met the requirements of RCW 36.70A.200 with respect to secure community transition facilities. (2) The department's determination under subsection (1)(a) or (b) of this section is final and is not subject to appeal under chapter 34.05 or 36.70A RCW. (3) When siting a facility in a county or city that has been preempted under this section, the department shall consider the policy guidelines established under RCW 71.09.285 and 71.09.290 and shall hold the hearings required in RCW 71.09 315. (4) Nothing in this section prohibits the department from: (a) Siting a secure community transition facility in a city or county that has complied with the requirements of RCW 36.70A.200 with respect to secure community transition facilities, including a city that is located within a county that has been preempted. If the department sites a secure community transition facility in such a city or county, the department shall use the process established by the city or county for siting such facilities; or (b) Consulting with a city or county that has been preempted under this section regarding the siting of a secure community transition facility. (5)(a) A preempted city or county may propose public safety measures specific to any finalist site to the department. The measures must be consistent with the location of the facility at that finalist site. The proposal must be made in writing by the date of: (i) The second hearing under RCW 71.09.315(2)(a) when there are three finalist sites; or (ii) The first hearing under RCW 71.09.315(2)(b) when there is only one site under consideration. (b) The department shall respond to the city or county in writing within fifteen business days of receiving the proposed measures. The response shall address all proposed measures. (c) If the city or county finds that the department's response is inadequate, the city or county may notify the department in writing within fifteen business days of the specific items which it finds inadequate. If the city or county does not notify the department of a finding that the response is inadequate within fifteen business days, the department's response shall be final. (d) If the city or county notifies the department that it finds the response inadequate and the department does not revise its response to the satisfaction of the city or county within seven business days, the city or county may petition the governor to designate a person with law enforcement expertise to review the response under RCW 34.05.479. (e) The governor's designee shall hear a petition filed under this subsection and shall make a determination within thirty days of hearing the petition. The governor's designee shall consider the department's response, and the effectiveness and cost of the proposed measures, in relation to the purposes of this chapter. The determination by the governor's designee shall be final and may not be the basis for any cause of action in civil court. (f) The city or county shall bear the cost of the petition to the governor's designee. If the city or county prevails on all issues, the department shall reimburse the city or county costs incurred, as provided under chapter 34.05 RCW. (g) Neither the department's consideration and response to public safety conditions proposed by a city or county nor the decision of the governor's designee shall affect the preemption under this section or the department's authority to site, construct, renovate, occupy, and operate the secure community transition facility at that finalist site or at any finalist site. (6) Until June 30, 2009, the secretary shall site, construct, occupy, and operate a secure community transition facility sited under this section in an environmentally responsible manner that is consistent with the substantive objectives of chapter 43.21C RCW, and shall consult with the department of ecology as appropriate in carrying out the planning, construction, and operations of the facility. The secretary shall make a threshold determination of whether a secure community transition facility sited under this section would have a probable significant, adverse environmental impact. If the secretary determines that the secure community transition facility has such an impact, the secretary shall prepare an environmental impact statement that meets the requirements of RCW 43.21 C.030 and 43.21C.031 and the rules promulgated by the department of ecology relating to such statements. Nothing in this subsection shall be the basis for any civil cause of action or administrative appeal. (7) In no case may a secure community transition facility be sited adjacent to, immediately across a street or parking lot from, or within the line of sight of a risk potential activity or facility in existence at the time a site is listed for consideration unless the site that the department has chosen in a particular county or city was identified pursuant to a process for siting secure community transition facilities adopted by that county or city in compliance with RCW 36.70A.200. "Within the line of sight" means that it is possible to reasonably visually distinguish and recognize individuals. (8) This section does not apply to the secure community transition facility established pursuant to RCW 71.09.250(1). [2003 c 50 § 2; 2002 c 68 § 9.] NOTES: Application -- Effective date -- 2003 c 50: See notes following RCW 71.09.020. Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. "All other laws" defined: RCW 71.09.2501. RCW 71.09.343 Transition facilities -- Contract between state and local governments. (1) At the request of the local government of the city or county in which a secure community transition facility is initially sited after January 1, 2002, the department shall enter into a long -term contract memorializing the agreements between the state and the city or county for the operation of the facility. This contract shall be separate from any contract regarding mitigation due to the facility. The contract shall include a clause that states: (a) The contract does not obligate the state to continue operating any aspect of the civil commitment program under this chapter; (b) The operation of any secure community transition facility is contingent upon sufficient appropriation by the legislature. If sufficient funds are not appropriated; the department is not obligated to operate the secure community transition facility and may close it; and (c) This contract does not obligate the city or county to operate a secure community transition facility. (2) Any city or county may, at their option, contract with the department to. operate a secure community transition facility. [2002 c 68 § 16.] NOTES: Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. RCW 71.09.344 Transition facilities -- Mitigation agreements. (1) Subject to funds appropriated by the legislature, the department may.enter into negotiation for a mitigation agreement with: (a) The county and /or city in which a secure community transition facility sited after January 1, 2002, is located; (b) Each community in which the persons from those facilities will reside or regularly spend time, pursuant to court orders, for regular work or education, or to receive social services, or through which the person or persons will regularly be transported to reach other communities; and (c) Educational institutions in the communities identified in (a) and (b) of this subsection. (2) Mitigation agreements are limited to the following: (a) One -time training for local law enforcement and administrative staff, upon the establishment of a secure community transition facility. (i) Training between local government staff and the department includes training in coordination, emergency procedures, program and facility information, legal requirements, and resident profiles. (ii) Reimbursement for training under this subsection is limited to: (A) The salaries or hourly wages and benefits of those persons who receive training directly from the department; and (B) Costs associated with preparation for, and delivery of, training to the department or its contracted staff by local government staff or.contractors; (b) Information coordination: (i) Information coordination includes data base infrastructure establishment and programming for the dissemination of information among law enforcement and the department related to facility residents. (ii) Reimbursement for information coordination is limited to start-up costs; (c) One -time capital costs: (i) One -time capital costs are off -site costs associated with the need for increased security in specific locations. (ii) Reimbursement for one -time capital costs is limited to actual costs; and (d) Incident response: (i) Incident response costs are law enforcement and criminal justice costs associated with violations of conditions of release or crimes by residents of the secure community transition facility. (ii) Reimbursement for incident response does not include private causes of action. [2002 c 68 § 17.] NOTES: . Purpose -- Severability -- Effective date -- 2002 c 68: See notes following RCW 36.70A.200. RCW 71.09.345 Alternative - placement -- Authority of court. Nothing in chapter 12, Laws of 2001 2nd sp. sess. shall operate to restrict a court's authority to make less restrictive alternative placements to a committed person's individual residence or to a setting less restrictive than a secure community transition facility. A court- ordered less restrictive alternative placement to a committed person's individual residence is not a less restrictive alternative placement to a secure community transition facility. [2001 2nd sp.s. c 12 § 226.] NOTES: Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.350 Examination and treatment only by certified providers -- Exceptions. (1) Examinations and treatment of sexually violent predators who are conditionally released to a less restrictive alternative under this chapter shall be conducted only by certified sex offender treatment providers or certified affiliate sex offender treatment providers under chapter 18.155 RCW unless the court or the department of social and health services finds that: (a) The court- ordered less restrictive alternative placement is located in another state; (b) the treatment provider is employed by the department; or (c)(i) all certified sex offender treatment providers or certified affiliate sex offender treatment providers become unavailable to provide treatment within a reasonable geographic distance of the person's home, as determined in rules adopted by the department of social and health services; and (ii) the evaluation and treatment plan comply with the rules adopted by the department of social and health services. A treatment provider approved by the department of social and health services under (c) of this subsection, who is not certified by the department of health, shall consult with a certified sex offender treatment provider during the person's period of treatment to ensure compliance with the rules adopted by the department of health. The frequency and content of the consultation shall be based on the recommendation of the certified sex offender treatment provider. (2) A treatment provider, whether or not he or she is employed or approved by the department of social and health'services under subsection (1) of this section or otherwise certified, may not perform or provide treatment of sexually violent predators under this section if the treatment provider has been: (a) Convicted of a sex offense, as defined in RCW 9.94A.030; (b) Convicted in any other jurisdiction of an offense that under the laws of this state would be classified as a sex offense as defined in RCW 9.94A.030; or (c) Suspended or otherwise restricted from practicing any health care profession by competent authority in any state, federal, or foreign jurisdiction. (3) Nothing in this section prohibits a qualified expert from examining or evaluating a sexually violent predator who has been conditionally released for purposes of presenting an opinion in court proceedings. [2004 c 38 § 14; 2001 2nd sp.s. c 12 § 404.] NOTES: Effective date -- 2004 c 38: See note following RCW 18.155.075. Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250. RCW 71.09.800 Rules. The secretary shall adopt rules under the administrative procedure act, chapter 34.05 RCW, for the oversight and operation of the program established pursuant to this chapter. Such rules shall include provisions for an annual inspection of the special commitment center and requirements for treatment plans and the retention of records. [2000 c 44 § 1.] NOTES: Effective date -- 2000 c 44: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 22, 2000]." [2000 c 44 § 2.] RCW 71.09.900 Index, part headings not law -- 1990 c 3. See RCW 18.155.900. RCW 71.09.901 Severability - -1990 c 3. See RCW 18.155.901. RCW 71.09.902 Effective dates -- Application - -1990 c 3. See RCW 18.155.902. Affidavit of Publication STATE OF WASHINGTON, S.S. COUNTY OF SNOHONHSH swom to before me this 9th C ®� day of November, 2005 `( L" `�'44, NNOV No'rAR 9N G f 1 2M5 Notary Public ' and or the State of Washington, residing at kvcrck, SnohSb"C C" County. N�� 9-17-2008 14t ..��� F � OP WA si4 Account Name: City of Edmonds Account Number. 101416 Order Number. 001347738 The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of Everett, County of SUMMARY OF ORDINANCE NO. 3572 Snohomish, and State of Washington; that said newspaper is a newspaper of general o 1 e rty o mon s, as ington On the 1st day of November, 2005, the City Council circulation in said County and State; that said newspaper has been approved as a legal of the City of Edmonds, passed Ordinance No. 3572. A summary of I the content of said ordinance, consisting of the title, newspaper by order of the Superior Court of Snohomish County and that the notice as follows: provides AN ORDINANCE OF THE CITY OF EDMONDS, WASHING- Summary of Ordinance No. 3572 TON AMENDING TITLE 20 OF THE EDMONDS COMMU- TER 20.16 EESSENTIAL PUBLIIC FACILITIES TIES T ERETO, l' City Ci of Edmonds ADOPTING HE SITING,. IS MITIGATION FACIL T E E , AND FIXING A TIME WHENTTHEPSAMI SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this 2nd day of November, 2005. Published: November 9, 2006 CLERK, SANDRA S. CHASE a printed copy of which is hereunto attached, was published in said newspaper proper and not -- -- — in supplement form, in the regular and entire edition of said paper on the following days and times, namely: November 09, 2005 and that said newspaper was regularly distributed to its subscribers during all of said period. aZ& swom to before me this 9th C ®� day of November, 2005 `( L" `�'44, NNOV No'rAR 9N G f 1 2M5 Notary Public ' and or the State of Washington, residing at kvcrck, SnohSb"C C" County. N�� 9-17-2008 14t ..��� F � OP WA si4 Account Name: City of Edmonds Account Number. 101416 Order Number. 001347738