Clallam County v. Western Washington Growth Management Hearings Board , 130 Wash. App. 127 ( 2005 )

¶34

Bridgewater, J.

(dissenting) — The majority holds that the Growth Management Act (GMA), chapter 36.70A RCW, permits the Growth Management Board (Board) to invalidate Clallam County’s (County) preexisting agricultural uses exemption from the County’s critical areas ordinance. I respectfully dissent because the Board has not been granted authority to mandate regulation of preexisting land uses in critical areas.

I. Standard of Review

¶35 The GMA grants specific jurisdiction to growth management hearings boards⁸ to hear and determine only those petitions alleging that a governmental agency is not in compliance with the requirements of the GMA. RCW 36-.70A.280. The Board must base its determination exclusively on whether a local government is in compliance with the requirements of the GMA. Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 527, 979 P.2d 864 (1999); see also Skagit Surveyors and Eng’rs, L.L.C. v. Friends of Skagit County, 135 Wn.2d 542, 958 P.2d 962 (1998) (stating that RCW 36.70A.290(2) limits a board’s authority to hear challenges to a particular development regulation or plan after the effective date of the GMA).

¶36 When a particular development regulation, comprehensive plan, or amendment is challenged under the GMA, the Board “shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].” RCW 36.70A.320(3). An action rises to the “clearly erroneous” standard when the Board is “ ‘left with the firm and definite conviction that a mistake has been committed.’ ” RCW 36.70A.320(3); Whidbey Envtl. Action Network (WEAN) v. Island County, 122 Wn. App. 156, 163-64, 93 P.3d 885 (2004) (quoting Dep’t of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 201, 849 P.2d 646 (1993), aff’d, 511 U.S. 700 (1994)), review denied, 153 Wn.2d 1025 (2005).

¶37 A party may appeal a board decision to superior court pursuant to the Administrative Procedure Act (APA).⁹ On appeal, this court sits in the same position as the superior court, applying the standards of the APA to the record before the agency. WEAN, 122 Wn. App. at 164 (citing City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998)). The party challenging the Board’s action bears the burden of showing the invalidity of the action. RCW 34-.05.570(l)(a). Here, the County is challenging the Board’s action; therefore, the County bears the burden of showing invalidity.

¶38 While we generally give deference to a board’s interpretations of the statute, those interpretations are not binding. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 116 Wn. App. 48, 54, 65 P.3d 337, review denied, 150 Wn.2d 1007 (2003). We may grant relief from a board decision when the decision is not supported by substantial evidence. RCW 34.05.570(3)(e). Substantial evidence is evidence sufficient to persuade a fair-minded person that a board’s order is correct. HEAL, 96 Wn. App. at 526.

II. The Growth Management Hearings Boards Authority

¶39 The County argues that the GMA does not require local governments to regulate preexisting agricultural land uses in critical areas. The fact that the Board found the GMA to require regulation of preexisting agricultural land uses in critical areas raises the issue of whether the GMA grants authority to the Board to make such a finding.

¶40 The GMA grants the Board specific authority to determine whether county actions comply with the GMA. Skagit Surveyors, 135 Wn.2d at 558-59. The GMA requires cities and counties with specified rates of growth and certain populations to adopt development regulations “to assure the conservation of agricultural, forest, and mineral resource lands.” RCW 36.70A.060(1). Subsection (1) further requires that the development regulations “may not prohibit uses legally existing on any parcel prior to their adoption.” RCW 36.70A.060(1).

¶41 Additionally, the GMA requires all counties to adopt development regulations for critical areas. RCW 36.70A-.060(2). Critical areas include “(a) [w]etlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.” RCW 36.70A.030(5). Counties are required to “include the best available science [BAS]” in developing critical areas regulations. RCW 36.70A.172(1). Counties are also required to balance numerous express GMA goals in adopting development regulations. RCW 36.70A.172(1).

¶42 Neither RCW 36.70A.060, RCW 36.70A.172, nor any other provision of the GMA expressly mandates a county to regulate preexisting uses in critical areas. Thus, the Board has no express authority to require regulation of preexisting agricultural uses in critical areas.

Necessarily Implied Statutory Authority

¶43 Administrative agencies generally have implied authority that is reasonably necessary to carry out express authority granted by the legislature. Skagit Surveyors, 135 Wn.2d at 564. “[W]here implied authority to grant or impose a particular remedy is not clearly set forth in the statutory language or its broad implication, the courts of this state have been reluctant to find such authority on the part of the agency.” Skagit Surveyors, 135 Wn.2d at 565.

¶44 This court’s interpretation of a statute is a question of law, reviewed de novo. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 555, 14 P.3d 133 (2000). When interpreting a statute, our goal is to determine and give effect to the legislature’s intent. King County, 142 Wn.2d at 555 (citing Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)). To determine legislative intent, we look at the statute’s plain language and ordinary meaning. King County, 142 Wn.2d at 555.

¶45 The majority concluded that the statutory framework of the GMA clearly demonstrates legislative intent to require counties to “exercise some measure of control over preexisting uses in critical areas.” Majority at 137. Moreover, the majority concludes that interpreting a broad exemption into critical areas regulation for preexisting uses would frustrate legislative intent of the GMA. Majority at 137. Contrary to the majority’s holding, however, the statutory framework of the GMA does not necessarily imply the Board has statutory authority to construe the GMA to mandate regulation of preexisting agricultural land use in critical areas. Reading the GMA in such a way would frustrate the purpose and goals of the GMA.

¶46 The underlying purpose of the GMA is to control urban sprawl and to ensure the private and public sectors cooperate in the creation of comprehensive land planning. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 119 Wn. App. 562, 578, 81 P.3d 918 (2003), rev’d on other grounds, 154 Wn.2d 224, 110 P.3d 1132 (2005). The regulation of preexisting uses would have little to no influence on uncontrolled expansion of urbanization into rural areas.

¶[47 The GMA also expressly states goals that “are adopted to guide the development and adoption of comprehensive plans and development regulations . . . and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations.” RCW 36.70A.020. One of the goals of the GMA is to protect private property owners from discriminatory actions. RCW 36.70A.020(6).¹⁰

¶48 ’ The record shows no grounds for the distinction between agricultural preexisting land uses and other preexisting land uses. Therefore, the Board’s apparent intent to regulate only preexisting agricultural uses in critical areas and not other preexisting land uses is discriminatory and thus contrary to an express goal of the GMA. See RCW 36.70A.020(6). Moreover, if the GMA is read to include all preexisting uses in critical areas, every business, home, golf course, etc. would be required to abide by BAS. See RCW 36.70A.172. BAS could very well dictate no use whatsoever. Prohibiting private citizens from using private land would frustrate RCW 36.70A.020(6).

¶49 Furthermore, Washington state courts have declined to find that the GMA mandates regulation of preexisting agricultural land uses in critical areas. There is no published court opinion addressing the issue directly, but in WEAN v. Island County, 122 Wn. App. 156, 93 P.3d 885 (2004), the court avoided the issue.

¶50 In WEAN v. Island County, Division One of this court addressed the issue of whether Island County’s agricultural exemption ¹¹ to its Critical Area Ordinance (CAO) was overbroad. WEAN, 122 Wn. App. at 181. The Board found the exemption to comply with the GMA as to land zoned rural agriculture. WEAN, 122 Wn. App. at 182. But the Board also found that Island County had “inappropriately balanced ‘non-designated agricultural uses’ against critical area protections by allowing the application of the exemption to agricultural activities.” WEAN, 122 Wn. App. at 182.

¶51 The court did not address whether the exemption frustrated the critical area protection requirements of the GMA. Rather, the court affirmed on a different basis. The court held that Island County failed to produce evidence supporting the exemption was necessary to protect agricultural activity. The court reasoned that Island County failed to produce evidence showing it considered BAS in the development of the exemption. WEAN, 122 Wn. App. at 184. Thus, the court declined to address whether the Board correctly construed the GMA to regulate preexisting agriculture in existing areas.

¶52 Here, the issue is not whether Clallam County provided evidence to support the need for an exemption.¹² The issue is whether the GMA grants the Board the fundamental authority to mandate regulation of preexisting agricultural land use in critical areas. Because WEAN does not address the issue at hand, it has no persuasive authority for us. The argument of the County is most compelling that the intent of the GMA is to control and mitigate the negative impact of future growth and development, not preexisting, on-going activities.

¶53 In conclusion, reading the GMA to grant authority to the Board to mandate regulation of preexisting agricultural uses in critical areas frustrates both the purpose and goals of the GMA. First, the regulation of preexisting agricultural land uses in critical areas would have minimal, if any, influence on uncontrolled expansion of urbanization into rural areas. Next, there is no reference in the GMA distinguishing between agricultural preexisting land uses and other preexisting land uses. Such a distinction, therefore, would be discriminatory and contrary to Goal 6 of the GMA. Further, regulation of all preexisting land uses would hinder private land use contrary to the goals of the GMA. Therefore, the GMA does not expressly or necessarily imply the Board’s authority to mandate regulation of preexisting agricultural land uses in critical areas. I would affirm the trial court.

8 Pursuant to the GMA, there are three growth management hearings boards in Washington: (1) Western Washington board; (2) Central Puget Sound board; and (3) Eastern Washington board. RCW 36.70A.250.

9 Ch. 34.05 RCW.

10 RCW 36.70A.020(6) states: “Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions.”

11 Island County’s critical area ordinance exempted “ ‘[e]xisting and on-going agriculture activities when undertaken pursuant to best management practices to minimize impacts to critical areas.’ ” WEAN, 122 Wn. App. at 182 (alteration in original) (quoting Island County Code 17.02.107(E)(1)).

12 Clallam County’s exemption is distinguished from WEAN’S exemption because Clallam provided evidence to support the exemption is necessary to protect local agricultural activity.