122 Wash. App. 156 | Wash. Ct. App. | 2004
The Whidbey Environmental Action Network (WEAN) appeals the superior court’s decision on review of proceedings before the Western Washington Growth Management Hearings Board (Board). The proceedings addressed whether Island County complied with the Growth Management Act (GMA), chapter 36.70A RCW, in enacting its comprehensive plan and development regulations.
Because WEAN fails to show prejudice, we reject its claim for relief based on the superior court arguably exceeding its authority under RCW 34.05.574(1), and for the superior court’s alleged failure to review the whole administrative record under RCW 34.05.570. The Board and the superior court did not err when they concluded that the County’s comprehensive plan ensured a variety of rural densities. The superior court erred when it reversed the Board’s ruling that 25-foot buffers for type 5 streams were inadequate. The Board and the superior court did not err when they refused to require larger buffers for type 3 and 4 streams. The superior court did not err when it reversed the Board’s ruling that 25-foot buffers on Category B wetlands were inadequate to provide protection for wildlife habitat. The superior court erred when it reversed the Board’s determination that the County’s agricultural exemption to its critical areas ordinance was overbroad.
We affirm in part and reverse in part.
WEAN, and another party no longer involved in this case, petitioned for review before the Board, challenging the County’s 1998 comprehensive plan, the zoning code, and the fish and wildlife habitat conservation areas provisions. The Board took testimony and other evidence.
In June 1999, the Board issued a Final Decision and Order (FDO). The Board concluded that the County should
In response, the County amended various provisions of its laws. A series of compliance hearings before the Board followed.
The Board determined in its October 2000 Compliance Hearing Order that the County’s choice to adopt alternative regulations to protect rural character, rather than down-zoning lands in the rural area to the 10-acre lot size previously directed by the Board, was not clearly erroneous. The Board decided that rural forest and rural agriculture zones did contribute to a variety of rural densities.
In its November 2000 Compliance Hearing Order, the Board determined that the County remained noncompliant with the GMA regarding the application of the agricultural exemption to lands not designated commercial agriculture or rural agriculture. The Board found partial compliance by the County with the Category B wetland buffers, which were increased from 25 to 50 feet for the rural residential zone. But the Board found the County’s 25-foot buffer noncompliant for the remaining zones. The Board reaffirmed its finding of invalidity as to type 5 stream buffers and ordered that the buffers be increased from 25 to 50 feet.
The County sought judicial review of the Board’s determinations of noncompliance in the superior court. These included the agricultural exemption for existing and ongo
WEAN sought review of the Board’s determinations of compliance. These included the County’s requirements for buffers on type 3 and 4 streams and the County’s requirement for five-acre minimum lot sizes in the rural zone.
The superior court ruled in favor of the County on every issue, reversing the Board’s findings of noncompliance and invalidity and affirming the findings of compliance.
WEAN appeals.
STANDARD OF REVIEW
The legislature enacted the GMA to minimize threats that uncoordinated and unplanned growth pose to the environment, economic development, and public welfare.
The Board is charged with adjudicating GMA compliance and, when necessary, with invalidating noncom-pliant comprehensive plans and development regulations.
On appeal, we base our review on the record before the Board.
Of the nine possible grounds for relief from an agency decision, three are at issue here:
(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. [11 ]
This court reviews the Board’s legal conclusions de novo.
The burden of demonstrating the invalidity of agency action is on the party asserting the invalidity.
We first address two procedural arguments by WEAN. First, WEAN contends that the superior court exceeded the proper scope of review under the Administrative Procedure Act, chapter 34.05 RCW, by finding compliance on matters solely within the Board’s discretion.
As to the former claim, the superior court did state, “the County ordinances concerning the use of 25-foot buffers on Type 5 streams substantively included best available science.” But the court also remanded the case to the Board for further proceedings.
Because WEAN fails in this respect for both procedural claims, reversal on these bases is not warranted.
RURAL DENSITIES
WEAN argues, under RCW 34.05.570(3)(d), that the Board erroneously interpreted or applied the law by requiring satisfaction of a “significant blocks” test. The GMA does not appear to sanction such a test. We nevertheless conclude that the Board’s determination was proper on the basis of other grounds that we discuss below.
The GMA requires participating counties to identify and protect rural lands not designated for urban growth, agriculture, forest, or mineral resources.
WEAN maintains that the significant blocks test articulated by the Board was an error of law. We agree.
“The Act does not require a particular methodology for providing for a variety of densities.”
In short, we accept as persuasive WEAN’s argument that, quite simply, the test for the existence of a variety of rural densities and uses is whether the County’s rural element has provided for such densities and uses. The “significant blocks” test is not consistent with this approach.
The Board’s decision rested more broadly than on simple reliance on the significant blocks test. Under the GMA, the County can account for unique local conditions in drafting its regulations.
Furthermore, the GMA allows for the use of “other innovative techniques that will accommodate appropriate rural densities and uses that are not characterized by urban growth and that are consistent with rural character.”
Finally, the Board found that the zoning requirements for RF (10 acres) and RA (10 acres) zones contributed to a variety of rural densities and that WTCAN had failed to convince the Board that lands zoned RF could be easily rezoned and the density increased. A five-acre lot size is not, of itself, in violation of the rural element portion of the GMA because the five-acre lot size is a “decidedly rural density.”
We conclude that the Board did not err when it determined that the County’s approach was not clearly erroneous. WEAN fails in its burden to show otherwise.
WEAN also argues that the Board’s decision was arbitrary and capricious because it considered an improper factor. This argument is not persuasive.
WEAN maintains that the Board was improperly influenced by the fact that another party challenging the County regulation, the Coalition, changed its position on the rural density issue and advocated for a finding of compliance. WEAN points to the Board’s Compliance Hearing Order of October 2000.
The Coalition was the petitioner who convinced us last year that continuing to allow the creation of 5 acre or smaller lots over the great majority of the rural area presented an “undue threat” to natural resource lands (NRLs), CAs (critical areas) and rural character; failed to comply with the Act and warranted invalidity. Now, after participating in the review process and successfully convincing the County to take other actions to protect CAs and preserve rural character, the Coalition asks us to find compliance on this issue. This change in position, as well as unique local circumstances, has had considerable impact on our decision.[32 )
TYPE 5 STREAM BUFFERS
The County argues that substantial evidence did not support the Board’s order, and that the Board failed to defer to the County’s discretionary balancing of the best available science (BAS) with other factors. The County also argues that the Board erred when it ignored the testimony of the County’s expert and determined that his expert opinion was not BAS. The County also argues that the range of BAS included 25-foot buffers for type 5 streams and the Board erred in determining otherwise. Finally, the County argues that the Board improperly used a preponderance of the evidence standard to evaluate the science in the record. We conclude that substantial evidence supported the Board’s finding of noncompliance, and the County’s other arguments are unpersuasive.
Under RCW 36.70A.060(2) and (3), the County is required to adopt development regulations that protect critical areas. Critical areas include: “(a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.”
The County declared streams to be a fish and wildlife habitat conservation area.
Responding to the Board’s FDO determination of noncompliance, the County required a 50-foot buffer for any type 5 stream tributary to a salmon bearing stream and for any type 5 stream located in the rural zone.
RCW 36.70A. 172(1) requires that BAS shall be included “in developing policies and development regulations to protect the functions and values of critical areas.” This court held “that evidence of the best available science must be included in the record and must be considered substantively in the development of critical areas policies and regulations.”
The scientific evidence in the record constitutes substantial evidence to support the Board’s determination of noncompliance.
The Washington Department of Fish and Wildlife (WDFW) recommends buffers of 150 feet to 225 feet for type 5 streams, depending on their susceptibility to erosion.
A study by Castelle and others recommends 15 to 30 meter buffers for the protection of streams “under most circumstances.”
There is a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the Board’s order that the County failed to comply with the GMA concerning type 5 stream buffers.
Furthermore, the County fails to point to any part of the record outlining the applicability of unique local conditions to justify a departure downward from the buffer width requirements outlined in the scientific literature. HEAL requires that evidence of BAS must be included in the record and must be considered substantively in the development of critical areas policies and regulations.
The County did not make any findings about the applicability of unique local conditions or otherwise explain why it chose to adopt a buffer for type 5 streams that was outside the range of BAS. In the absence of such an explanation, the Board was correct when it found the County’s type 5 stream buffer noncompliant.
The Board’s finding of noncompliance was supported by substantial evidence, and the County fails to show otherwise.
The County contends that Andrew Castelle’s recommendation for 25-foot buffers was BAS and that the Board willfully disregarded Castelle’s expertise in this area, rendering the finding of noncompliance arbitrary and capricious. The Board was free to choose from among competing evidence, and doing so was not arbitrary or capricious.
The Board was not willfully disregarding Castelle’s expert opinion, as argued by the County. Rather, the Board was disagreeing with the County as to the content of BAS presented to the Board. This was not arbitrary and capricious.
The County also argues that because the range of evidence of BAS includes 25-foot buffers for type 5 streams, we should affirm the superior court’s decision. We again disagree.
While 25-foot buffers did fall within the range of some of the evidence given, they did so only with specific and narrow functions in mind, rather than the entirety of functions attendant to type 5 streams. Even Castelle himself testified, in response to a question concerning how his recommendations compared to those of the WDFW for type 5 buffer widths, “I didn’t consider specific wildlife species other than fish because I didn’t think that the riparian buffer section was the appropriate place to do that.”
The County relies heavily on specialized studies that fail to consider the multiple functions of a stream buffer rather than just one isolated function. The study cited in Johnson and Ryba as supporting three-meter buffers dealt only with sediment removal. Johnson and Ryba observed, “[t]he widest range in recommended widths was for buffers to filter suspended sediments. This is largely due to one reference (Wilson 1967) that reports separate buffer widths for filtering sediment particles of different sizes. These include sand (3 m), silt (15 m), and clay (122 m).”
Finally, the County contends that the Board erroneously used a preponderance of the evidence standard that allowed WEAN to escape its burden of proving noncompliance. We disagree.
The County cites to a single section in the Board’s decision where the Board states, “[t]he majority of these studies showed that a minimum of 15 meters was needed for in-stream water quality.” But observing that the majority of the scientific information supports greater than 25-foot buffers is not, of itself, reliance on a preponderance of the evidence standard. The Board went on to specify the reasons for its decision, including the fact that not even Castelle’s own studies supported 25-foot buffers for in-stream water quality, let alone other buffer functions. The Board also observed that other regulations provided by the County, including the possibility of increased buffer sizes based on individual cases, and the County’s “holistic” approach, failed to provide assurances of “minimal effective protection.”
We conclude that the Board’s determination was correct, and the County has failed in its burden to show otherwise.
WEAN argues that the Board failed to articulate the basis for its decision concerning type 3 and 4 buffers, in violation of RCW 34.05.461(3) and (4). WEAN also argues that the evidence was insufficient to support the Board’s ruling that buffers for type 3 and 4 streams were adequate. We conclude that sufficient evidence supported the Board’s finding of compliance.
The County claims that WEAN failed to preserve below the issue of inadequate findings by the Board on type 3 and 4 stream buffers. WEAN concedes that it did not do so but requests that this court consider this issue. We decline to do so. The remedy WEAN seeks is remand to the Board for the entry of a decision consistent with RCW 34.05.461(3) and (4). But the standard of review employed by this court does not compel remand. We review the record for “evidence that is substantial when viewed in light of the whole record before the court... .”
We conclude that substantial evidence exists to support the Board’s conclusion. A type 4 stream is a stream that is two feet or wider at its ordinary high water mark.
WEAN directs us to the same analysis and arguments it used concerning type 5 streams above. Our review of BAS before the Board supports the conclusion that the County was in compliance concerning type 3 and 4 stream buffers because BAS does not require a 100-foot minimum for all streams.
WDFW recommends buffers of 150 feet for type 3 streams and 150 feet to 225 feet for type 4 streams, depending on their susceptibility to erosion.
Despite WEAN’s contention that Castelle fatally relied on buffer widths relating only to water quality, rather than other functions, other studies, as cited above, recommend 15 to 30 meter buffers for minimal maintenance of most functions, without reference to stream size.
We conclude that WEAN has failed to prove that the Board’s order of compliance was not supported by substantial evidence.
CATEGORY B WETLANDS BUFFERS FOR WILDLIFE
The County argues that the Board lacked subject matter jurisdiction to review the 25-foot buffers on Category B wetlands. In the alternative, the County argues that the Board exceeded its authority when it allegedly required that the 1992 wetlands ordinance include BAS.
WEAN challenged the County’s use of its preexisting wetlands ordinance for the protection of wildlife under the GMA in 1998. In the FDO, the Board stated that if the County was relying in part on the 25-foot buffers for Category B wetlands to protect wildlife functions, then the County was not in compliance because BAS required a minimum of 50-foot buffers to protect wildlife.
The County subsequently amended its regulation to require 50-foot buffers for Category B wetlands in the R zone only. In the remaining zones, the 25-foot buffer requirement remained. The Board concluded that the County was in compliance as to the R zone but was noncompliant in the other zones.
The County appealed to the superior court. The court declined to rule for the County on the jurisdictional challenge. It instead considered the merits of the County’s argument that BAS requirements were not applicable to
Under RCW 36.70A.280(l)(a) the growth management hearings boards shall hear petitions alleging that a state agency, county, or city is not in compliance with the requirements of the GMA. “[T]he term subject matter jurisdiction is generally taken to mean the court’s authority to hear and decide a particular kind of case — marriage dissolutions, probate, felony criminal cases, claims for injunctive relief, and so forth.”
Even if the Board had subject matter jurisdiction, the County argues that WEAN’s appeal of this matter was six years too late and thus the Board lacked the authority to hear this particular issue. If the challenge were to the wetland buffers alone, the Board acknowledged that the County was correct. “[T]he wetland buffer sizes are not able to be directly challenged in this appeal.”
RCW 36.70A.172 requires that the County establish regulations to protect critical areas, including fish and wildlife habitat. RCW 36.70A.172 requires that BAS be used to develop policies and development regulations to protect the functions and values of these critical areas. The BAS requirement was added to the GMA in 1995.
The County argues that the Board incorrectly applied the BAS requirement retroactively to the 1992 wetlands regulations. Although it is true that the 1995 amendment to the
If the County were relying substantively on the wetlands buffers to satisfy its obligation under RCW 36-.70A.172 to protect fish and wildlife habitat, those preexisting regulations must be subject to the applicable critical areas analysis to ensure compliance with GMA requirements. Otherwise, a county could use myriad preexisting regulations in an attempt to satisfy GMA critical areas requirements without actually having to include BAS analysis. This would contravene RCW 36.70A.172.
But the record is clear that the County relied on the 1992 Category B wetland buffers to protect wetland functions, not wildlife.
AGRICULTURAL EXEMPTION
The County contends that the Board erred as a matter of law when it adopted a “no balancing” rule that restricted the County’s discretion to balance the various GMA goals. The County also argues that the Board ignored the County’s evidence that the agricultural exemption was subject to best management practices (BMP) and thus was not open to indiscriminate use in the R zone in violation of critical area protections. We conclude that we need not decide whether the no-balancing rule articulated by the Board was an improper reading of the statute. Rather, we conclude that there is no evidence in the record that an exemption of the scope granted by the County is necessary for R lands.
Under RCW 36.70A.060(2), the County is required to adopt development regulations that protect critical areas. The County is also required to designate and conserve agricultural lands of long-term significance.
In addition to adopting its critical areas ordinance, the County also created an exemption to that ordinance for agricultural activities. It exempts “[e]xisting and on-going agricultural activities when undertaken pursuant to best management practices to minimize impacts to critical areas.”
The Board held that as to lands designated RA, the exemption complied with the GMA. The Board also held that the BMP choices of the County concerning the application of the exemption to Category A wetland buffers and Category B wetlands were in compliance with the GMA. But the Board concluded that the County had inappropriately balanced “non-designated agricultural uses” against critical area protections by allowing the application of the exemption to agricultural activities, including hobby farms, in the R zone. This latter conclusion is the focus of our analysis here.
The County argues that the Board erred as a matter of law when it adopted a “no balancing” rule that restricted the County’s discretion to balance GMA goals to maintain and enhance agriculture and to protect critical areas in the County’s rural area. The County argues that RCW 36.70A.020(8) allows it to consider agricultural uses on nondesignated natural resource lands, and that the Board’s attempts to limit these considerations with the imposition of its “no balancing” rule was improper.
WEAN does not directly respond to this statutory construction argument. Rather, it relies on other arguments to support its conclusion that the decision of the Board was correct.
We need not decide whether the Board’s reading of the statute was correct in this case. Rather, we conclude that there is no evidence to support the application of such a broad exemption to R lands and affirm the Board’s finding of noncompliance on that basis.
We are in agreement with WEAN and the Board that if the agricultural exemption exists to help the County conserve all agricultural activities, there should be some evidence in the record to support the need for an agricultural exemption on all lands, including R zoned lands. The County fails to cite to anything in the record to support the claim that the exemption is necessary to protect agricultural activities.
The Board observed:
The record contains no information as to how many acres are being “farmed” (no matter how casually), where those are located and what their cumulative impact might be on critical areas. The record does show that only 60 acres of land in the*184 RR zone [sic] is in the agricultural tax program. Further, the County provides none of this RR [sic] “agricultural” activity with GMA protections such as notification to adjacent landowners or application of its nuisance protection regulation.
There is simply no evidence to support the County’s assertion that the goal of protecting or preserving agricultural activities on R lands is furthered by the application of the exemption.
The County also argues that the requirement that those claiming the exemption employ BMP, and the Board’s finding that the BMP included BAS, renders the exemption GMA compliant as to critical area protection, regardless of the lack of evidence in the record supporting broad application of the exemption. This argument is not persuasive. Although the County cites to the November 2000 Compliance Hearing Order to support its contention that the Board found the BMPs compliant with BAS, the County is wrong. The Board found the exemption GMA compliant as to Category A and B wetlands and streams. It did not make any determination as to the use of BAS in the BMPs, or the application of BMPs to R lands. Again, the County fails to point to evidence in the record that proves that BAS was employed in crafting the exemption or the BMPs to which the exemption is allegedly subject on R lands.
In short, the record does not support the County’s contention that such a broad exemption, which includes all R lands, is necessary, or that BAS was considered in creating the exemption.
The County also argues that the Board improperly shifted the burden from WEAN to the County. The County is mistaken. The Board simply required that the County comply with the GMA and determined that it had not. This is not impermissible burden shifting.
Finally, the County argues that the Board’s decision resulted in an arbitrary and unlawful taking of private property. Because we conclude that the Board did not err when it found the County noncompliant on this issue, we
We affirm in part and reverse in part the decision of the superior court.
Agid and Appelwick, JJ., concur.
Reconsideration denied July 12, 2004.
Review denied at 153 Wn.2d 1025 (2005).
Island County Citizens’ Growth Mgmt. Coalition v. Island County (ICCGMC), No. 98-2-0023c, 2000 WL 1606529, at *9, Compliance Hr’g Order (W. Wash. Growth Mgmt. Hr’gs Bd. (WWGMHB) Oct. 12, 2000).
ICCGMC Compliance Hr’g Order (WWGMHB Nov. 17, 2000).
RCW 36.70A.010.
RCW 36.70A.040.
RCW 36.70A.010-.901.
RCW 36.70A.280, .302.
RCW 36.70A.320(3).
Dep’t of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 201, 849 P.2d 646 (1993).
Buechel v. Dep’t of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994).
City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998).
RCW 34.05.570(3)(d), (e), (i).
Diehl v. Mason County, 94 Wn. App. 645, 652, 972 P.2d 543 (1999).
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 34.05.570(l)(a).
The court may “order an agency to take action required by law, order an agency to exercise discretion required by law, set aside agency action, enjoin or stay the agency action, remand the matter for further proceedings, or enter a declaratory judgment order.” RCW 34.05.574(1).
Under RCW 34.05.570 the superior court can grant relief from an agency order only if “[t]he order is not supported by evidence that is substantial when viewed in light of the whole record before the court....” (emphasis added).
Manke Lumber Co. v. Diehl, 91 Wn. App. 793, 810, 959 P.2d 1173 (1998), review denied, 137 Wn.2d 1018 (1999) (concluding that although the superior court in part usurped the Board’s role of determining GMA compliance, the court nevertheless remanded the matter for further proceedings).
Manke Lumber, 91 Wn. App. at 810 (concluding there was no prejudice by the superior court’s ruling because the court of appeals reviews the Board’s order directly).
RCW 36.70A.070(5).
RCW 36.70A.070(5)(b).
RCW 36.70A.070(5)(b).
“Rural character” refers to the patterns of land use and development established by a county in the rural element of its comprehensive plan:
(a) In which open space, the natural landscape, and vegetation predominate over the built environment;
(c) That provide visual landscapes that are traditionally found in rural areas and communities;
(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;
(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;
(f) That generally do not require the extension of urban governmental services; and
(g) That sue consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.
Island County Code (ICC) 17.03.110(D)(1).
ICC 17.03.060(C)(1).
Achen v. Clark County, No. 95-2-0067 Final Dec. and Order, at 17 (WWGMHB, Sept. 20, 1995).
See LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027, cert denied, 493 U.S. 814 (1989).
RCW 36.70A.070(5)(a).
ICCGMC, 2000 WL 1606529, at *4 (emphasis added).
RCW 36.70A.070(5)(b).
Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 571, 958 P.2d 962 (1998).
ICCGMC, 2000 WL 1606529, at *9 (emphasis added).
ROW 36.70A.030(5).
ICC 17.02.110(C).
ICC 17.02.110(C) at Tbl. 17.02.110(C).
Ordinance C-03-00, Ex. A-3.
Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 532, 979 P.2d 864 (1999).
Letter from WDFW to Island County Bd. of Comm’rs of 5/8/98 at 1.
Alan Desbonnet, et al., Vegetated Buffers in the Coastal Zone: A Summary Review and Bibliography 20, 26-29 (1994).
Alan Johnson and Diane M. Ryba, A Literature Review of Recommended Buffer Widths to Maintain Various Functions of Stream Riparian Areas 13 (1992).
Johnson & Ryba, supra, at 6.
Letter from Susan Meyer, DOE, to Michael Shelton, Island County Commissioner of 9/8/99; Letter from DOE to Michael Shelton of 2/9/00.
A. J. Castelle, et al., Wetland and Stream Buffer Size Requirements — a Review, 23 J. Envtl. Quality 878, 881 (1994).
Castelle, et al., supra, at 881.
Partial Tr. of Hr’g (7/27/98), at 5.
Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 532, 979 P.2d 864 (1999).
Partial Tr. of Hr’g (7/27/98) at 32.
Partial Tr. of Hr’g (7/27/98) at 33 (“I didn’t, I didn’t consider specific wildlife species other than fish because I didn’t think that the riparian buffer section was the appropriate place to do that.”); Mem. from Andy Castelle to Alison Moss of 9/13/99 (“The fourth function is wildlife habitat, but the stream section of the CAO [Critical Area Ordinance] was written to address stream and fisheries protection, not wildlife.”).
Partial Tr. of Hr’g (7/27/98) at 33.
ROW 36.70A.172(1).
Johnson & Ryba, supra, at 6.
RCW 34.05.570(3)(e).
ICC 17.02.110(0 at Tbl. 17.02.110(C).
ICC 17.02.110(C) at Tbl. 17.02.110(C).
ICC 17.02.110(C)(3).
ICC 17.02.110(C) at Tbl. 17.02.110(C).
ICC 17.02.110(C)(3).
Letter from WDFW to Island County Bd. of Comm’rs (5/8/98) at 1.
Castelle, et al., supra, at 881.
Desbonnet, et al., supra, at 20, 26-29.
Johnson & Ryba, supra, at 13.
Johnson & Ryba, supra, at 6.
15A Karl B. Inland & Douglas Ende, Washington Practice: Washington Handbook on Civil Procedure § 9.2, at 115 (2003).
ICCGMC, No. 98-2-0023c, Final Dec. and Order at 64; RCW 36.70A.290(2) (WWGMHB June 2, 1999).
A statutory amendment is presumed to be prospective in application only. The presumption of prospective application can be overcome only by showing (1) the legislature intended the amendment to apply retroactively; (2) the amendment is curative; or (3) the amendment is remedial. State v. Smith, 144 Wn.2d 665, 673, 30 P.3d 1245 (2001). None of those factors is present here, thus prospective application is proper.
ICCGMC, No. 98-2-0023c, Compliance Hr’g Order on FDO Remand Issues 10, 14 and 15 at 8 (WWGMHB Nov. 17, 2000).
WEAN v. Island County, No. 97-2-0064, Compliance Order (WWGMHB Nov. 18, 1998).
WEAN v. Island County, No. 97-2-0064, Compliance Order (WWGMHB Nov. 18, 1998).
WEAN’s Resp. to Island County’s Mot. for Recons, at 17 n.6.
ICCGMC 98-2-0023c Final Dec. and Order at 64 (June 2, 1999) (emphasis added).
ICCGMC 98-2-0023c Final Dec. and Order at 64 (June 2, 1999).
ICCGMC 98-2-0023c Final Dec. and Order at 64 (June 2, 1999).
RCW 36.70A.170(l)(a).
See HEAL, 96 Wn. App. at 531.
ICC 17.02.107(E)(1).
Rettkowski v. Dep’t of Ecology, 128 Wn.2d 508, 515, 910 P.2d 462 (1996).
“ ‘Agricultural land’ means 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 ... finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.”