116 Wash. App. 48 | Wash. Ct. App. | 2003
When reviewing a challenge to a zoning ordinance, a growth management hearings board must presume the ordinance valid, and the challenger has the burden of establishing otherwise. Here the Central Puget Sound Growth Management Hearings Board placed the burden on the city of Redmond to prove the validity of an ordinance designating property for urban recreational uses. The Board further erred by invalidating the ordinance’s designation. We reverse and remand.
FACTS
The Property. At issue in this case are adjacent parcels in the northern Sammamish Valley, referred to as the Benaroya and Muller properties. Both parcels lie just inside the northern border of the city of Redmond. The Muller property is 37 acres, bordered on the east by the King County 60-Acre Park, which is in the King County Agricultural Production District. To the north, both parcels are bordered by the Agricultural Production District of unincorporated King County. To the south, both properties are bordered by Willows Run Golf Course. To the west of the 32-acre Benaroya parcel lies property designated as a business park. King County purchased the Muller property under its Farmland Preservation Program, and the property is therefore deed-restricted for use as agricultural or open space. The city of Redmond has purchased the Ben-aroya property.
Procedural History. Before 1995, the properties in question were zoned “agricultural,” a designation that, as then defined, permitted some recreational uses. In 1995, the city of Redmond adopted its first Growth Management Act (GMA) comprehensive plan in Ordinance 1847. The comprehensive plan designated the Benaroya and Muller properties as agricultural. In January 1996, the City adopted a transfer of development rights (TDR) program as required by the GMA for agricultural land.
In March 1996, the Board held the agricultural designation improper on grounds that (1) the property did not meet
Meanwhile, the City complied with the Board’s order to redesignate the property. In December 1996, in Ordinance 1917, the City changed the designation of the northern Sammamish Valley, on an interim basis, to urban recreation. Ordinance 1917 contained a savings and revival clause, the purpose of which was to revive the agricultural designation if a court concluded that the City’s definition of “agricultural land” was correct. In March 1997, the Board ruled that the interim urban recreation designation in Ordinance 1917 complied with the Board’s March 1996 order. Neither Ordinance 1917 nor the Board’s finding of compliance was challenged.
In August 1998, the Supreme Court issued its opinion in the City’s appeal. The court rejected the Board’s definition of “agricultural land,” holding that the owner’s intended use is not determinative of whether the land is agricultural — rather, the question is whether land is capable of being used for agriculture.
On remand in 1998, the Board reversed its decision regarding the definition of “agricultural land,” but found that its March 1997 finding that the interim urban recreation designation was in compliance remained unaffected by the Supreme Court’s opinion. This order on remand was not challenged.
In 1999, the Lake Washington Youth Soccer Association (LWYSA) and the City applied for a special development permit to use the Benaroya property for soccer practice. On December 14, 1999, the City passed Ordinance 2050, permanently designating the northern Sammamish Valley for urban recreational uses.
A petition was filed challenging Ordinance 2050. The Board characterized the City’s attempt to make the urban recreational designation permanent as an attempt to “remove the agricultural land designation it had previously adopted.”
The City appealed to the superior court; Preserve Land for Agriculture Now (PLAN) was allowed to intervene. The superior court affirmed the Board. The City and LWYSA
Standard of Review. Judicial review of Growth Management Hearings Board decisions begins in superior court.
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
(i) The order is arbitrary or capricious. [
We review issues of law under RCW 34.05.570(3)(d) de novo.
Burden of Proof Applied by the Board. The Growth Management Act, chapter 36.70ARCW, limits the purview of the Growth Management Hearings Board. In reviewing the City’s actions, the Board is required to presume that comprehensive plans and development regulations are valid.
Once lands are designated as agricultural lands they are not necessarily destined to be agricultural lands forever. This is not license for local governments to “de-designate” agricultural resource lands where it may simply be locally popular or politically convenient. “De-designation” of agricultural lands is a serious matter with potentially very long-term consequences. Such de-designation may only occur if the record shows demonstrable and conclusive evidence that the Act’s definitions and criteria for designation are no longer met. The documentation of changed conditions that prohibit the continued designation, conservation and protection of agricultural lands would need to be specific and rigorous. If such a de-designation action were challenged, it would be subject to heightened scrutiny by the Board.[18 ]
The Board’s conclusion of law further highlights this burden-shifting:
With the exception of the Benaroya and Muller parcels, Petitioner has failed to carry his burden of showing how the City’s action did not comply with the requirements of the GMA.*56 The City has presented demonstrable and conclusive evidence of changed circumstances to justify its de-designation of agricultural resource lands in the “Northern Sammamish Valley.” The Board finds that the City is in compliance with the goals and requirements of the GMA, except for the Benaroya and Muller parcels. With regard to the Benaroya and Muller parcels, the Board finds that Petitioner has shown that the City’s action did not comply with the requirements of the Act. The City has failed to point to facts to justify removing these parcels from an agricultural designation.[19 ]
The Board’s test for what it calls “de-designating” agricultural lands has no support in the GMA. Nothing in the GMA suggests a city must present “specific and rigorous” evidence subject to “heightened scrutiny” when defending a land use designation. Rather, the GMA requires the Board to presume a challenged ordinance is valid, and the challenger has the burden of establishing invalidity.
Respondents nevertheless argue that the Board’s burden shifting was warranted under King County v. Central Puget Sound Growth Management Hearings Board
[T]he agricultural lands provisions (RCW 36.70A.020(8), .060, and .170) direct counties and cities (1) to designate agricultural lands of long-term commercial significance; (2) to assure the*57 conservation of agricultural land; (3) to assure that the use of adjacent lands does not interfere with their continued use for agricultural purposes; (4) to conserve agricultural land in order to maintain and enhance the agricultural industry; and (5) to discourage incompatible uses. The recreation provisions (RCW 36.70A.020O), .150, and .160) direct counties and cities (1) to identify lands useful for recreation; (2) to identify open space corridors; and (3) to encourage the development of recreational opportunities.[23 ]
The court noted that the legislature emphasized the importance of the GMA’s agricultural provisions by requiring counties and cities to designate and conserve agricultural land before planning for urban development.
Green Valley does not hold that an agricultural designation causes a shift in the burden of persuasion. Respondents contend, however, that its emphasis on the GMA’s mandate to protect agricultural land justifies the Board’s approach. This argument overlooks the GMA’s directives regarding land in urban growth areas and its directive that challenged designations be presumed valid. It also overlooks the requirement that within urban growth areas, cities and counties must:
Ensure that those public facilities and services necessary to*58 support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards.[27 ]
The Board’s analysis is contrary to the GMA. To the extent the Board required the City to establish the validity of the urban recreational designation, or subjected the City’s decision to heightened scrutiny, the Board erred.
Validity of Urban Recreation Designation. The Board found that when the City made the interim urban recreation designation permanent, the City was really attempting to “remove the agricultural resource land designation that it had previously adopted.”
As previously indicated, the Board originally invalidated the agricultural designation of the valley, and required the City to change the designation, which it did on an interim basis. The Board upheld this interim urban recreation designation as compliant with the GMA. The City therefore argues there was no agricultural designation to remove.
Respondents point out, however, that Ordinance 1917, which contained the interim designation, also contained a savings and revival clause, the purpose of which was to revive the original agricultural designation if the City’s
We reject this argument. Although the Supreme Court agreed with the City’s definition of “agricultural land,” it nevertheless invalidated the agricultural designation of the properties because there was no TDR program in place before the ordinance was enacted.
CONCLUSION
The Supreme Court has already reversed the Board’s definition of “agricultural land” as not supported by the GMA. The Board’s test for when agricultural land can be “de-designated” is also not supported by the GMA. The Board erred by placing the burden on the City to prove the validity of Ordinance 2050. Finally, the land at issue here was never properly designated for agricultural use; it is now validly designated as urban recreational, and the
Grosse and Kennedy, JJ., concur.
Review denied at 150 Wn.2d 1007 (2003).
Benaroya v. City of Redmond, No. 95-3-0072, 1996 WL 650317, *8-10 (Wash. Cent. Puget Sound Growth Mgmt. Hearings Bd., Mar. 25, 1996).
City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 53, 959 P.2d 1091 (1998).
In motions for reconsideration to this court, respondents emphasize that the action was not a finding of invalidity under RCW 36.70A.302. Invalidation in the general sense, however, is what the Supreme Court affirmed. See City of Redmond, 136 Wn.2d at 56 (“the Board properly invalidated the designation”), 57 (“we uphold the Board’s invalidation”), and 58 (“I also agree with the decision of [the Board] which invalidated the agricultural designation....” (Sanders, J. concurring)).
City of Redmond, 136 Wn.2d at 56-57.
Clerk’s Papers at 16.
Clerk’s Papers at 19.
Clerk’s Papers at 22.
For convenience, appellants City of Redmond and LWYSA are referred to collectively as “the City.”
RCW 36.70A.295(1).
City of Redmond, 136 Wn.2d at 45.
RCW 34.05.570(3)(d), (e), (i).
City of Redmond, 136 Wn.2d at 46.
City of Redmond, 136 Wn.2d at 46.
City of Redmond, 136 Wn.2d at 46.
City of Redmond, 136 Wn.2d at 46-47 (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 14, 820 P.2d 497 (1991)).
RCW 36.70A.320.
RCW 36.70A.320.
Clerk’s Papers at 19 (emphasis added).
Clerk’s Papers at 22 (emphasis added).
RCW 36.70A.320.
142 Wn.2d 543, 14 P.3d 133 (2000).
Green Valley, 142 Wn.2d at 562-63.
Green Valley, 142 Wn.2d at 558.
Green Valley, 142 Wn.2d at 555-56.
Green Valley, 142 Wn.2d at 558, 562.
City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 47, 959 P.2d 1091 (1998).
RCW 36.70A.020(12). Parks and recreation facilities are “public facilities.” RCW 36.70A.030G2).
Clerk’s Papers at 16.
The Board caused a great deal of confusion in this matter. Initially it applied an untested definition of “agricultural land,” held the City’s agricultural designation improper, and ordered the City to redesignate the property for urban uses. The City did as it was directed and designated the area for urban recreational use, a designation the Board expressly approved. This changed the nature of the area. After the Supreme Court’s decision, the Board reversed and concluded that the City had acted improperly in changing the designation from agricultural to urban recreation. It is unclear how the City could act improperly where both the Supreme Court and the Board rejected the agricultural designation, and the Board twice concluded the urban recreation designation was appropriate.
City of Redmond, 136 Wn.2d at 58 (“Because the City did not have a TDR program in place when the designations were made, RCW 36.70A.060(4) invalidates the City’s designation of the subject properties as agricultural lands.”).
RCW 36.70A.060(4).
On motion for reconsideration to this court, PLAN argues this matter should be remanded to the Board for determination under the proper test. Given the deference owed by the Board to the City and the Board’s own orders affirming the propriety of the urban recreational designation, we see no basis for the Board to reject the urban recreational designation.