Case Information
*1 FILED 2013 OQC f 0 , 9: 541+ It D UTY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
FUTUREWISE,
Appellant, UNPUBLISHED OPINION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 the . Growth Management Act ( GMA), chapter 36. 70A RCW. Futurewise argues that the updated comprehensive plan violated the GMA by ( 1) adopting new criteria for designating agriculturаl 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 less populous counties that opt in under RCW 36. 040( 2). See LAWS 1990, 1st Ex. Sess., ch. 17, § 4. Counties subject to the GMA must adopt a comprehensive plan. RCW 36. 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 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 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 production aquaculture, cranberries, and / or other bog related crops." Administrative Record AR) at 13 8 7.
The GMA further requires counties periodically to review and, if needed, tо 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. Futurewise filed a petition for judicial review of the Board' s order. The suрerior court affirmed the Board' order. Futurewise appeals. [1]
ANALYSIS STANDARDS OF REVIEW
A.
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.,
RCW 34. 05. 570( 3) sets out nine grounds for invalidating an administrative order. King
142 Wn. 2d at 553. Futurewise asserts two. First, Futurewise argues that the Board
erroneously interpreted or applied law. 34. 05. 570( 3)( d). We review the Board' s legal
conclusions de novo. King County, 142 Wn.2d 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.,
[1] The Board has declined to participate in this appeal. -
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. Hеarings Bd.,
When a party challenges a comprehensive plan' s compliancе 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,
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 164 Wn.2d 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,
any findings of fact contained in the Board' s decision.
rd
provisions have been directly affected by newly adopted or recently amended GMA
requirements. Thurston County,
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. THE UPDATED PLAN DID NOT ADOPT NEW DESIGNATION CRITERIA
B..
Futurewise first argues that Pacific County' s 2010 updated comprehensive plan' adopted nеw 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 36. 70A. 030( 2)' 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 tо identify agricultural lands of long -term commercial significance. in addition, the GMA i# ( CTED) pr-evide guidelines to eounties for- ho i to . lass; :_ . ia3 De ele 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 hаy, straw, turf, seed, Christmas trees not subject to the excise tax imposed 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 usеd 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:
Classificatiоn 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 capablе 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,
Futurewise asserts that by including RCW 36. 70A.030( 2)' s definition of agriсultural 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 -term commercial significance. 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 agriсultural 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 a case. 157 Wn.2d of 502. These criteria already existed at the time Paсific 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 or proximity 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.
commercial significance. Accordingly, the revisions to section 3. 5. 2 did not adopt new criteria for the designation of agricultural lands of long -term commercial significance.
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 THE UPDATED PLAN DID NOT DEVIATE FROM THE STATUTORY DEFINITION C.
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 lаnd, the GMA refers to land devoted to several categories of agricultural products. RCW 36. 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 uplаnd 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 157 Wn.2d 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 second part Lewis County' definition of 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 primаrily devoted to the commercial production of agricultural products enumerated in RCW 36. 70A. 030( 2)." Wn.2d 502 ( emphasis added). Futurewise points out that the phrase
enumerated in RCW 36. 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 mаy be exercised by counties and cities consistent with the requirements of [the
GMA] "); Viking Props., Inc. v. Holm,
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 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 tо 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 -term commercial significance for
agricultural production. RCW 36. 70A. 030( 2); Lewis County,
determination in the updated plan. Accordingly, Futurewise cannot challenge this portion of
section 3. 5. 2. Thurston County,
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 alrеady be characterized by
urban growth and state 36. 030( 1 0)' 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,
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. Accоrdingly, 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 . aquaculture, cranberries, and /or other bog related crops." AR at Seeking to revisit this . categorization, Futurewise claims that " neither the County nor thе Board cite to any evidence that the ... decision is still relevant." Br. of Appellant 25.. But Futurewise bears the burden showing invalidity of the Board' s order. RCW 34. 05. 570( 1)( a); King County, 142 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.
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 elemеnt 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." 36. 70A.070( 5). A
comprehensive plan' s rural element cannot include natural resource areas such as agricultural
lands. Thurston County,
Pacifiс 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
lands that are used for agriculture.
[5]
AR at 118 -23, 128 -29, 167. But contrary to Futurewise' s
argument, the maps do not include agricultural lands of long -term commercial significance in the
rural element. The updated comрrehensive, 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,
E. CONCLUSION
The Board was bound to find that the updated comprehensive plan complied with the
GMA unless it was clearly erroneous. Lewis County,
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.