Futurewise v. Growth Management Hearings Board ( 2013 )

FILED
2013 OQC f 0 , 1 9:
541+
It
D UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
FUTUREWISE,
Appellant, No. 43643 -4 -II
0 UNPUBLISHED OPINION
GROWTH MANAGEMENT HEARINGS
BOARD, an agency of the State of
Washington; PACIFIC COUNTY; and the
CITY OF LONG BEACH;
Respondent.
MAXA, J. — Futurewise appeals from the superior court' s affirmation of the Western
Washington Growth Management Hearings Board' s order ruling that Pacific County' s 2010
updated comprehensive plan complied with Growth Management Act ( GMA),
the . chapter
36. 70A RCW. Futurewise argues that the updated comprehensive plan violated the GMA by ( 1)
adopting new criteria for designating agricultural lands but failing to apply the new criteria to
designate additional agricultural lands, ( 2) deviating from the statutory definition of "agricultural
land ", and ( 3) improperly classifying agricultural lands as " rural agriculture" on Pacific County' s
land -
use map. We disagree and affirm.
FACTS AND LEGAL BACKGROUND
The GMA applies to counties meeting the population criteria of RCW 36. 70A.040( 1) and
to less populous counties that opt in under RCW 36. 70A. 040( 2). See LAWS of 1990, 1st Ex.
No. 43643 -4 -II
Sess., ch. 17, § 4. Counties subject to the GMA must adopt a comprehensive plan. RCW
36. 70A. 040( 3), ( 4). Despite not meeting the population criteria, Pacific County' s commissioners
in .1990 elected to prepare a comprehensive plan governed by the GMA.
Under RCW 36. 70A. 170( 1)( a), a comprehensive plan must designate. " [a] gricultural.
lands that are not already characterized by urban growth and that have long -term significance for
the commercial production of food or other agricultural products." In 1997, Pacific County
adopted Ordinance No. 147, declaring that its only agricultural products with long -
term
commercial significance were aquaculture, cranberries, and other bog -
related products. Pacific
County incorporated this declaration into the comprehensive plan it adopted in 1998. That plan
defined " `` agricultural land of long -term significance' to include all land that is devoted to the
or other
production of aquaculture, cranberries, and / bog related crops." Administrative Record
AR) at 13 8 7.
The GMA further requires counties periodically to review and, if needed, to revise their
comprehensive plans. RCW 36. 70A. 130. Pacific County adopted an updated comprehensive
plan in 2010. The updated 2010 comprehensive plan contained several amendments to, the
section on agricultural lands. The updated plan also added new maps.
Futurewise petitioned the Western Washington Growth Management Hearings Board
Board) to review Pacific County' s 2010 updated comprehensive plan, seeking a declaration that
the updated plan violated the GMA and therefore was invalid. The Board granted Futurewise' s
petition in part but rejected its challenge to the updated plan' s agricultural lands section.
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No. 43643 -4 -II
Futurewise filed a petition for judicial review of the Board' s order. The superior court affirmed
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the Board' s order. Futurewise appeals.
ANALYSIS
A. STANDARDS OF REVIEW
1. Administrative Procedure Act Standards
The Administrative Procedure Act (APA), chapter 34. 05 RCW, governs our review of the
Board' s order. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d
224, 233, 110 P. 3d 1132 ( 2005). We sit in the same position as the superior court and apply the
APA standards directly to the record before the agency. City ofRedmond v. Cent. Puget Sound-
Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P. 2d 1091 ( 1998). In other words, we
review the Board' s order, not the superior court' s decision. King County v. Cent. Puget Sound
Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P. 3d 133 ( 2000). The party asserting the
invalidity of an administrative order bears the burden of showing that the order is invalid. RCW
34. 05. 570( 1)( a); King County, 142 Wn.2d at 552.
RCW 34. 05. 570( 3) sets out nine grounds for invalidating an administrative order. King
County, 142 Wn.2d at 553. Futurewise asserts two. First, Futurewise argues that the Board
erroneously interpreted or applied the law. RCW 34. 05. 570( 3)( d). We review the Board' s legal
conclusions de novo.
King County, 142 Wn.2d at 553. The Board' s interpretation of the GMA
deserves substantial weight, but it is not binding on the courts. Thurston County v. W. Wash.
Growth Mgmt. Hearings Bd., 164 Wn.2d 329, 341, 190 P. 3d 38 ( 2008).
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The Board has declined to participate in this appeal. -
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No. 43643 -4 -II
Second, Futurewise argues that substantial evidence does not support the Board' s order.
RCW 34. 05. 570( 3)( e). Such a challenge presents us with a mixed question of law and fact. City
ofArlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 164 Wn.2d 768, 779 -80, 193.
P. 3d 1077 ( 2008). In reviewing that question, we determine the law independently and apply it
to the facts found by the Board. City ofArlington, 164 Wn. 2d at 779 -80. We review challenged
findings of fact for substantial evidence: evidence sufficient to persuade a fair -
minded person of
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the finding' s truth or correctness. City ofRedmond, 136 Wn.2d at 46.
2. Growth Management Act Standards
When a party challenges a comprehensive plan' s compliance with the GMA, the Board
must find compliance unless the challenged portion is clearly erroneous in view of the entire
record and the GMA' s goals and requirements. Lewis County v. W. Wash. Growth Mgmt.
Hearings Bd., 157 Wn.2d 488, 497, 139 P. 3d 1096 ( 2006). The challenged portion is clearly
erroneous if the Board has a firm and definite conviction that a mistake occurred. Lewis County,
157 Wn.2d at 497.
Significantly, the statutory requirement for counties to update their comprehensive plans
does not create an " `` open season' " for all challenges to the entire comprehensive plan.
Thurston County, 164 Wn.2d at 344 .(internal quotation marks omitted) ( quoting Gold Star
Resorts, Inc. v. Futurewise, 140 Wn. App. 378, 390, 166 P. 3d 748 ( 2007), aff'd in part and rev' d
in part on other grounds, 167 Wn.2d 723, 726, 222 P. 3d 791 ( 2009)). A party may challenge
any amendments made in an updated comprehensive plan. Thurston County, 164 Wn.2d at 347.
But a party may not challenge a county' s failure to revise a comprehensive plan unless its
2 Futurewise does not challenge any specific facts found by the Board; instead it assigns error to
any findings of fact contained in the Board' s decision.
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No. 43643 -4 -II
provisions have been directly affected by newly adopted or recently amended GMA
requirements. Thurston County, 164 Wn.2d at 344.
The Board determined that the legislature did not amend the GMA in any way between
1997 and 2010 that would affect Pacific County' s designation of agricultural land. Futurewise
does not challenge this determination. Accordingly, Futurewise can challenge only the portions
of the comprehensive plan that Pacific County amended in 2010.
B.. THE UPDATED PLAN DID NOT ADOPT NEW DESIGNATION CRITERIA
Futurewise first argues that Pacific County' s 2010 updated comprehensive plan' adopted
new criteria for designating agricultural land but then failed to update its designations of
agricultural lands using the new criteria. The Board determined that the updated comprehensive
plan did not adopt new criteria for designating agricultural lands. We agree with the Board and
reject Futurewise' s argument.
Futurewise focuses on two additions to the first portion of section 3. 5. 2. The first
addition quoted RCW 36. 70A. 030( 2)' s definition of "[a] gricultural land." The second addition
stated a three -part definition of agricultural land from WAC 365- 190 -050( 3) including a
nonexclusive list of factors for determining whether land has long -
term commercial significance
for agriculture. This first portion of section 3. 5. 2 reads as follows ( showing deletions and with
additions underscored):
3. 5. 2 IDENTIFYING AND CLASSIFYING AGRICULTURE LANDS
Section 4-6- 17 of the GMA (RCW 36. 70A4-68. 170) requires counties to identify
agricultural lands of long - erm commercial significance. in addition, the GMA
t
De ele i# ( CTED) to evide guidelines
pr- to eounties for-ho i
to . lass; :_ .
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designate s , eh reseuree lands RCW 36. 70A.030( 2) defines agricultural land as
land primarily devoted to the commercial production of horticultural,
viticultural, floricultural, dairy, gpiary, vegetable, or animal products or of berries,
grain hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed
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No. 43643 -4 -II
by RCW 84.3 3. 100 through 84. 33. 140, finfish in upland hatcheries, or livestock,
and that has long -
term commercial significance for agricultural production."
WAC 365- 190 -050 identifies a three part test for designating agricultural
land of long -
term commercial significance. First, the land is not already
characterized by urban growth. Second, the land is used or capable of being used
for agricultural production. This factor evaluates whether lands are well suited to
agricultural uses based primarily on their physical and geographic characteristics.
Third the land has long -term commercial significance for agriculture based on
several applicable criteria including the following:
Classification of prime and unique soils as mapped by the Natural
Resources Conservation Services;
Availability of public facilities, including roads;
oads;
Tax status,
Availability of public services;
Relationship or proximity to urban growth areas and to markets and
suppliers;
Predominant parcel size;
Land use settlement patterns and their compatibility with agricultural
practices;
Intensity of nearby land uses;
History of land development permits issued nearby and
Land values under alternative uses.
Compare AR at 166 -67 ( 2010 plan) with AR at 1387 -88 ( 1998 plan).
WAC 365- 190 -050' s test for designating agricultural land of long -
term commercial
significance apparently derives from Lewis County. In that case, our Supreme Court used a
three -part test to define " agricultural land" as land that ( 1) is not already characterized by urban
growth, (2) is primarily devoted to or capable of being used for the commercial production of
agricultural products listed in RCW 36. 70A. 030( 2), and ( 3) has long -
term commercial
significance for agricultural production. Lewis County, 157 Wn.2d at 502. The court further
approved WAC 365- 190 -050' s nonexclusive list of factors to determine whether land has long-
No. 43643 -4 -II
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term commercial significance for agricultural production. Lewis County, 157 Wn.2d at 501 -02.
Futurewise asserts that by including RCW 36. 70A.030( 2)' s definition of agricultural land
and WAC 365- 190 -050' s three -part test and factors, the 2010 updated comprehensive plan
adopted new criteria for designating agricultural land of long - erm commercial significance.
t
This argument fails for two reasons. First, nothing in the language of the updated comprehensive
plan states that Pacific County was adopting new designation criteria for agricultural land of
long -
term commercial significance. A fair reading of section 3. 5. 2 is that Pacific County merely
was identifying the relevant statutory and regulatory provisions pertaining to such agricultural
land.
Second, WAC 365- 190 -050' s three -part test already governed the designation of
agricultural land of long -term commercial significance before Pacific County included the three-
part test in its updated comprehensive plan. This portion of the regulation became effective on
February 19, 2010, before Pacific County adopted its updated comprehensive plan on October
26, 2010. Wash. St. Reg. 10 -03 -085. Further, as noted above, this three -part test derives from
Lewis County, a 2006 case. 157 Wn.2d of 502. These criteria already existed at the time Pacific
County updated the comprehensive plan. Regardless of whether the updated comprehensive plan
included a reference to WAC 365- 190 -050, Pacific County would have had to follow the its
three -part test and Lewis County if it decided to reclassify agricultural land of long -
term
3
After Lewis County, WAC 365- 190 -050 was amended twice in 2010. The first amendment
adopted language very similar to Lewis County' s three -part definition of agricultural land.
Wash. St. Reg. 10 -03 -085 ( Feb. 19, 2010). The second amendment distinguished "[ r] elationship
orproximity to urban growth areas" and "[ p] roximity to markets" as separate factors. Wash. St.
Reg. 10 -22 -103 ( Dec. 3, 2010). These amendments do not alter our analysis.
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No. 43643 -4 -II
commercial significance. Accordingly, the revisions to section 3. 5. 2 did not adopt new criteria
for the designation of agricultural lands of long - erm commercial significance.
t
We hold that Pacific County' s references to RCW 36. 70A.030(2)' s definition of
agricultural land" and WAC 365- 190 -050' s three -part test and factors in the 2010 updated
comprehensive plan did not adopt new criteria for designating agricultural land of long -term
commercial significance. Accordingly, we affirm the Board' s decision on this issue
C. THE UPDATED PLAN DID NOT DEVIATE FROM THE STATUTORY DEFINITION
Futurewise next argues that section 3. 5. 2 of Pacific County' s 2010 updated
comprehensive plan violated the GMA by deviating from the statutory definition of "agricultural
land" as stated in Lewis County. The Board determined that Futurewise failed to demonstrate
that the language of section 3. 5. 2 violated the GMA. We agree with the Board and reject
Futurewise' s argument.
In defining agricultural land, the GMA refers to land devoted to several categories of
agricultural products. RCW 36. 70A. 030( 2) defines "[ a] gricultural land" as
land primarily devoted to the commercial production of horticultural, viticultural,
floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay,
straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW
84. 33. 100 through 84. 33. 140, finfish in upland hatcheries, or livestock, and that
has long -
term commercial significance for agricultural production.
The 2010 updated comprehensive plan quotes this definition verbatim. But Futurewise claims
that other portions of the updated plan are inconsistent with RCW 36. 70A. 030( 2) because they
differ from the text of Lewis County, 157 Wn.2d at 502. We disagree because the updated plan
correctly stated the statutory definition of "agricultural land."
Initially, Futurewise argues that the second part of the WAC 365- 190 -050 three -part test
stated in section 3. 5. 2 is not identical to the second part of Lewis County' s definition of
No. 43643 -4 -II
agricultural land." WAC 365- 190 -050 states, " Second, the land is used or capable of being
used for agricultural production." The court in Lewis County stated the second part as land " that
is primarily devoted to the commercial production of agricultural products enumerated in RCW
36. 70A. 030( 2)." 157 Wn.2d at 502 ( emphasis added). Futurewise points out that the phrase
enumerated in RCW 36. 70A. 030( 2)" was omitted from section 3. 5. 2.
However, nothing in the GMA requires counties to use any mandatory language in order
to comply with act requirements. See RCW 36. 70A.3201 ( referencing the " broad range of
discretion that may be exercised by counties and cities consistent with the requirements of [the
GMA] "); Viking Props., Inc. v. Holm, 155 Wn.2d 112, 125 -26, 118 P. 3d 322 ( 2005) ( interpreting
the GMA "with the requisite flexibility to allow local governments to accommodate local
needs "). The only issue is whether the language used satisfies the statutory requirement to
identify agricultural land of long -term commercial significance. See RCW 36.70A. 170( 1)( a).
Pacific County' s 2010 updated comprehensive plan does identify such agricultural land. In any
event, Futurewise' s argument fails because the updated comprehensive plan not only referred to
the products enumerated in RCW 36. 70A. 030( 2), but also quoted the statute verbatim.
Futurewise also emphasizes that the second part of section 3. 5. 2 states that agricultural
land in Pacific County is " devoted to the production of aquaculture, cranberries, and /or other bog
related crops," again without listing every product enumerated in RCW 36. 70A. 030( 2). AR at
167. But " agricultural lands" must, by definition, have long - erm commercial significance for
t
agricultural production. RCW 36. 70A. 030( 2); Lewis County, 157 Wn.2d at 502. Pacific County
determined in 1997 that aquaculture, cranberries, and other bog -
related crops were its only
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No. 43643 -4 -II
agricultural products of long -term commercial significance. 4 Pacific County did not amend this
determination in the updated plan. Accordingly, Futurewise cannot challenge this portion of
section 3. 5. 2. Thurston County, 164 Wn.2d at 344 -45.
Finally, Futurewise notes that the last paragraph of section 3. 5. 2 of the 2010 updated
comprehensive plan fails to mention that agricultural land cannot already be characterized by
urban growth and to state RCW 36. 70A. 030( 1 0)' s definition of " ``[ 1] ong -
term commercial
significance.' " Br. of Appellant at 27. But these omissions also occurred in the 1998
comprehensive plan; and Pacific County did not amend these provisions in the 2010 updated
plan. Accordingly, Futurewise cannot challenge Pacific County' s failure to revise the
comprehensive plan to include the omitted statements. See Thurston County, 164 Wn.2d at 344-
45.
We hold that Futurewise cannot show any deficiency in the language of the second part
of the WAC 365- 190 -050 test referenced in section 3. 5. 2 of Pacific County' s 2010 updated
comprehensive plan and that it cannot challenge Pacific County' s failure to amend other portions
of section 3.5. 2. Accordingly, we affirm the Board' s decision on this issue.
4
Pacific County Ordinance No. 147 ( effective April 11, 1997) specified, " Agricultural land of
long -
term commercial significance includes all land that is devoted to the production of .
or other bog related crops." AR at 767. Seeking to revisit this .
aquaculture, cranberries, and /
categorization, Futurewise claims that " neither the County nor the Board cite to any evidence
that the ... 1997 decision is still relevant." Br. of Appellant at 25.. But Futurewise bears the
burden of invalidity of the Board' s order. RCW 34. 05. 570( 1)( a); King County, 142
showing the
Wn.2d at 552. 1t has failed to meet this burden. Further, the decisions Pacific County made
when adopting its 1998 comprehensive plan cannot be relitigated in a legal challenge to the
updated comprehensive plan because the GMA has not changed. See Thurston County, 164
Wn.2d at 344 -45.
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No. 43643 -4 -II
D. THE UPDATED PLAN DID NOT INCLUDE AGRICULTURAL LANDS IN ITS RURAL ELEMENT
Futurewise further argues that Pacific County violated the GMA because the 2010
updated comprehensive plan contained new maps in which agricultural lands were labeled
Rural Agricultural." Br. of Appellant at 28 -30. Futurewise appears to argue that this label
improperly included agricultural lands in the rural element of Pacific County' s updated
comprehensive plan. We disagree.
A county' s comprehensive plan must " include a rural element including lands that are not
designated for urban growth, agriculture, forest, or mineral resources." RCW 36. 70A.070( 5). A
comprehensive plan' s rural element cannot include natural resource areas such as agricultural
lands. Thurston County, 164 Wn.2d at 357.
Pacific County' s 2010 updated comprehensive plan contains new land use maps. These
maps apply a single label, " Rural Agricultural," to show both agricultural lands and other rural
5
lands that are used for agriculture. AR at 118 -23, 128 -29, 167. But contrary to Futurewise' s
argument, the maps do not include agricultural lands of long - erm commercial significance in the
t
rural element. The updated comprehensive, plan contains both a " Land Use [ and] Rural Areas
Element" ( section 2) and a separate " Critical Areas [ and] Resource Lands Element" ( section 3),
which includes a section on agricultural lands ( section 3. 5). AR at 41, 43 ( boldface omitted).
Because these elements remain separate, the updated comprehensive plan does not improperly
include agricultural lands of long -
term commercial significance within the rural element. See
Thurston County, 164 Wn.2d at 357. We hold that Futurewise' s challenge to the new maps fails.
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The Board determined that the " Rural Agricultural" label includes agricultural lands of long-
term commercial significance as well as all other agricultural activities outside of urban areas.
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No. 43643 -4 -II
E. CONCLUSION
The Board was bound to find that the updated comprehensive plan complied with the
GMA unless it was clearly erroneous. Lewis County, 157 Wn.2d at 497. Because the Board' s
order did not ( 1) misapply or misinterpret the law or (2) lack the support of substantial evidence,
we do not invalidate its order. See King County, 142 Wn.2d at 553. We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
MAXA, J.
We concur:
HUNT, J.
p
MANSON, A.C. J.
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