Summary
In Clark II, one of the issues raised was whether the GMHB acted in a manner that was arbitrary and capricious when it required the County to act on the Board's earlier finding of noncompliance after the land in question had been annexed and was no longer within the County's control.
Summary of this case from Spokane Cnty. v. Growth Mgmt. Hearings Bd.Opinion
No. 50847-8-II (Consolidated) No. 51745-1-II
08-20-2019
CLARK COUNTY, Petitioner/Cross Respondent, Friends of Clark County ; Futurewise, Respondents/Cross Petitioners, and City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners, and Clark County Citizens United, Inc., Petitioners, v. GROWTH MANAGEMENT HEARINGS BOARD, Respondent. Clark County, Petitioner/Cross-Respondent, Friends of Clark County ; Futurewise, Respondents/Cross Petitioners, and City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners, and Clark County Citizens United, Inc., Petitioners, v. Growth Management Hearings Board, Respondent.
Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, for Appellants. James Denver Howsley, Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, Sarah Ellen Mack, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Hillary Evans, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Christine M. Cook, Clark County Prosecutor's Office, Civil Div. P.O. Box 5000. 1300 Franklin St. Ste. 380. Vancouver, WA, 98666-5000, Curtis M. Burns, Clark County Prosecuting Attorney's Offi., 1300 Franklin St., Vancouver, WA, 98660-2865 for Petitioners. Christine M. Cook, Clark Co. Prosecutor's Office, Civil Div., P.O. Box 5000, 1300 Franklin St. Ste. 380, Vancouver, WA, 98666-5000, Richard M. Stephens, Stephens & Klinge LLP, 601 108th Ave. N.E. Ste. 1900, Bellevue, WA, 98004-4376, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Sarah Ellen Mack, Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Hillary Evans Graber, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, James Denver, Howsley Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, David H. Bowser, Jordan Ramis PC, 2 Centerpointe Dr. Ste. 600, Lake Oswego, OR, 97035-8619, for Respondents. Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.
Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, for Appellants.
James Denver Howsley, Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, Sarah Ellen Mack, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Hillary Evans, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Christine M. Cook, Clark County Prosecutor's Office, Civil Div. P.O. Box 5000. 1300 Franklin St. Ste. 380. Vancouver, WA, 98666-5000, Curtis M. Burns, Clark County Prosecuting Attorney's Offi., 1300 Franklin St., Vancouver, WA, 98660-2865 for Petitioners.
Christine M. Cook, Clark Co. Prosecutor's Office, Civil Div., P.O. Box 5000, 1300 Franklin St. Ste. 380, Vancouver, WA, 98666-5000, Richard M. Stephens, Stephens & Klinge LLP, 601 108th Ave. N.E. Ste. 1900, Bellevue, WA, 98004-4376, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Sarah Ellen Mack, Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Hillary Evans Graber, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, James Denver, Howsley Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, David H. Bowser, Jordan Ramis PC, 2 Centerpointe Dr. Ste. 600, Lake Oswego, OR, 97035-8619, for Respondents.
Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.
PART PUBLISHED OPINION
Worswick, J. ¶ 1 The Growth Management Act (GMA), chapter 36.70A RCW, requires Clark County to periodically update its comprehensive land use and zoning plan. Clark County updated its plan in 2016 (2016 Plan Update), making several changes to the County’s comprehensive plan.
¶ 2 The Friends of Clark County and Futurewise (FOCC), as well as Clark County Citizens United (CCCU), petitioned the Growth Management Hearings Board (Board) to review the 2016 Plan Update for compliance with the GMA. The City of Ridgefield, City of La Center, 3B Northwest LLC (3B), and five other individual LLCs intervened in that action.
RDGB Royal Estate Farms LLC, RDGK Rest View Estates LLC, RDGM Rawhide Estates LLC, RDGF River View Estates LLC, and RDGS Real View LLC.
¶ 3 The Board issued its Final Decision and Order (FDO), which concluded, in part, that the County did not comply with the GMA when it (1) dedesignated three areas of agricultural land and designated these lands as urban growth areas (UGA), (2) dedesignated agricultural land and designated this area as a rural industrial land bank (RILB), (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. However, the Board concluded that the County complied with the procedural requirements of the GMA.
¶ 4 The County took some efforts to come into compliance, after which the Board issued a compliance order. The Board concluded that the County remained noncompliant regarding dedesignating agricultural land for two UGAs and the RILB but that it had complied regarding one UGA, the agricultural and forestland parcel sizes, and rural densities.
¶ 5 The parties appeal both the FDO and the compliance order. Additionally, FOCC moves to dismiss the County’s and 3B’s petitions for judicial review of the FDO for lack of appellate jurisdiction because they did not properly and timely serve their petitions for judicial review.
¶ 6 The County, La Center, Ridgefield, and the LLCs argue that the Board’s finding of the County’s noncompliance regarding the County’s UGA designations are moot and that the Board acted arbitrarily and capriciously by requiring the County to take further action regarding these UGAs. The County also argues that the Board erroneously interpreted a rule regarding agricultural lands and erred when it concluded that the County violated the GMA by dedesignating agricultural lands for the RILB.
¶ 7 CCCU argues that the Board erred by concluding that the County complied with the GMA’s procedural requirements regarding public participation, an issue paper, and source documents, and that the County complied with the GMA regarding designations of agricultural and forestlands, population projections, and private property considerations. CCCU further argues that the Board erred by concluding the County violated the GMA when the County reduced parcel sizes of agricultural and forestland.
¶ 8 FOCC argues that the compliance order erroneously declared issues to be moot regarding readopted forestland and rural density provision from the County’s prior comprehensive plan.
¶ 9 We grant FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review of the FDO, for lack of appellate jurisdiction. In the published portion of our opinion, we hold that issues regarding the annexed lands are moot. In the unpublished portion of this opinion, we hold that the Board did not err regarding the remaining issues raised by CCCU and FOCC, and remand to the Board for further proceedings in accordance with this opinion.
FACTS
¶ 10 The County adopted the 2016 Plan Update by Amended Ordinance No. 2016-06-12 on June 28, 2016. In this update, the County dedesignated three areas of agricultural land and designated these lands as UGAs, dedesignated an area of agricultural land and designated this land as RILB, reduced agricultural and forestland parcel sizes, and adjusted rural densities.
¶ 11 Two of the newly designated UGAs were adjacent to the cities of La Center and Ridgefield. Immediately following the 2016 Plan Update’s passage, La Center and Ridgefield began the process of annexing these adjacent UGAs into their respective cities.
¶ 12 FOCC and CCCU petitioned the Board regarding the 2016 Plan Update. The Board consolidated these appeals. La Center, Ridgefield, 3B, and the LLCs intervened. Prior to the Board’s decision, La Center passed an ordinance annexing its adjacent UGA, effective on August 29, 2016. Ridgefield passed an ordinance annexing its adjacent UGA, effective on October 14, 2016.
¶ 13 The Board issued its FDO on March 23, 2017. The Board determined some provisions invalid and found other provisions noncompliant. The Board concluded, in part, that the County did not comply with the GMA when it (1) dedesignated agricultural land and designated the UGAs, (2) dedesignated agricultural land and designated the RILB, (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. Further, the Board made determinations of invalidity regarding the County’s UGA designations. The Board remanded the 2016 Plan Update to the County for the County to come into compliance with the GMA.
The Board did not make separate findings of fact and conclusions of law for each issue it addressed. Rather, the Board conducted its analysis, citing evidence, and then usually stated, "The Board finds and concludes...." See, e.g., AR at 10499.
¶ 14 The County, Ridgefield, La Center, the LLCs, and CCCU filed petitions for review of the Board’s FDO in superior court. Those petitions were consolidated by stipulation of the parties. FOCC sought direct review of the Board’s FDO, and we granted review.
¶ 15 After the Board remanded the 2016 Plan Update, and while appeal of the FDO was pending, the County adopted new amendments to its comprehensive plan that returned the parcel sizes and rural densities to their previous designations before the 2016 Plan Update amendments. The County also reversed one UGA designation during this period; however, the County did not take remedial action regarding the UGAs annexed by Ridgefield and La Center, arguing that it could not change the designation of land no longer within its control.
¶ 16 The Board issued a compliance order on January 10, 2018, concluding that the parcel sizes and rural density issues were moot and compliant because the County had adopted previously GMA-compliant provisions. The Board also concluded that the County was not in compliance regarding the UGAs annexed by La Center and Ridgefield.
¶ 17 Subsequently, Ridgefield, La Center, the County, the LLCs, 3B, and FOCC sought direct review of the Board’s compliance order and consolidation with the review of the FDO. We accepted direct review of the compliance order and consolidated the appeals.
ANALYSIS
I. MOTION TO DISMISS
¶ 18 As an initial matter, we address FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review of the Board’s FDO. FOCC argues that this court lacks subject matter, or appellate, jurisdiction because the County and 3B failed to timely serve the Board with their respective petitions for judicial review as required by RCW 34.05.542, due to their failure to deliver their petitions for judicial review to the Board within 30 days. Thus, FOCC argues that the County’s and 3B’s failure to properly serve the Board deprives us of appellate jurisdiction.
¶ 19 We hold that service of the petition for judicial review by e-mail does not satisfy the service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW, and that service on the agency is complete when the petition for review is delivered to the agency. As a result, we hold that the County’s and 3B’s petitions are untimely, and we grant FOCC’s motion to dismiss Clark County’s and 3B’s petitions for judicial review of the FDO.
A. Facts Pertaining to the Motion To Dismiss
¶ 20 The Board issued its final decision to the parties on March 23, 2017. The deadline for filing petitions for judicial review was April 24. The County e-mailed its petition for judicial review to the Board and mailed its petition to both the Board and the attorney general’s office using the United States Postal Service on April 24. 3B sent its petition to the Board through FedEx overnight delivery on April 24. 3B concedes that its petition was received by the Board on April 25. The attorney general’s office filed a notice of appearance, representing the Board, on May 11.
The County does not contend that the physical copy arrived on or before April 24.
B. Standard of Review
¶ 21 We review de novo questions of a court’s jurisdiction. Ricketts v. Bd. of Accountancy , 111 Wash. App. 113, 116, 43 P.3d 548 (2002). A party may raise a question of appellate, or subject matter, jurisdiction for the first time at any point in a proceeding. Skagit Surveyors & Engineers, LLC v. Friends of Skagit County , 135 Wash.2d 542, 556, 958 P.2d 962 (1998).
¶ 22 We also review the meaning of a statute de novo. Ricketts , 111 Wash. App. at 116, 43 P.3d 548. Our fundamental objective in statutory interpretation is to give effect to the legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). If a statute’s meaning is plain on its face, then we give effect to that plain meaning as an expression of legislative intent. Pac. Marine Ins. Co. v. State ex rel. Dep’t of Revenue , 181 Wash. App. 730, 737, 329 P.3d 101 (2014). "Absent ambiguity, a statute’s meaning must be derived from the wording of the statute itself without judicial construction or interpretation." Fray v. Spokane County , 134 Wash.2d 637, 649, 952 P.2d 601 (1998).
C. Appeals From Decisions of the Board
¶ 23 The APA governs appeals from decisions of the growth management hearings board. Skagit Surveyors , 135 Wash.2d at 555, 958 P.2d 962. A court does not obtain jurisdiction over an appeal from an agency decision unless the appealing party timely files and serves the petition for judicial review on the agency and all parties. Skagit Surveyors , 135 Wash.2d at 555, 958 P.2d 962. A petition for judicial review must be dismissed if the APA’s service requirements are not met. Sprint Spectrum, LP v. Dep’t of Revenue , 156 Wash. App. 949, 961, 235 P.3d 849 (2010). "Substantial compliance with the service requirements of the APA is not sufficient to invoke ... appellate, or subject matter, jurisdiction." Skagit Surveyors , 135 Wash.2d at 556, 958 P.2d 962.
Like here, the agency appeal in Skagit Surveyors was initially heard by the court of appeals and not the superior court. Skagit Surveyors , 135 Wash.2d at 556 n.9, 958 P.2d 962.
¶ 24 Under the APA, a petition for judicial review of an agency order must be served on all parties of record within 30 days after service of the final order. RCW 34.05.542(2). The APA provides:
"Service," except as otherwise provided in this chapter , means posting in the United States mail, properly addressed, postage prepaid, or personal or electronic service. Service by mail is complete upon deposit in the United States mail. Agencies may, by rule, authorize service by electronic transmission, or by commercial parcel delivery company.
RCW 34.05.010(19) (emphasis added).
¶ 25 But RCW 34.05.542(4) contains an exception to this definition. Ricketts , 111 Wash. App. at 117-18, 43 P.3d 548 ; Stewart v. Dep’t of Employment Sec. , 191 Wash.2d 42, 47, 419 P.3d 838 (2018). Under that statute, the petitioner must serve the agency that issued the order by delivery to the director’s office, the agency’s principal office, or by serving the agency’s attorney of record. RCW 34.05.542(4) ; Stewart , 191 Wash.2d at 47, 419 P.3d 838.
¶ 26 Service on the agency requires delivering the petition for judicial review to the agency within 30 days of the final order. RCW 34.05.542 (2), (3), (4). Here, the Board issued its final decision to the parties on March 23. Thirty days from March 23 was April 22, which was a Saturday. Therefore, the petition for judicial review was due April 24, the next business day.
1. The County’s Petition Was Untimely Served
¶ 27 In response to FOCC’s motion, the County argues that its petition for judicial review was timely served because it e-mailed the petition to the Board. The County does not argue that it timely served the Board by mailing the petition on April 24, but instead states that FOCC’s challenge is "limited to the question of whether email service on an agency satisfies delivery pursuant to RCW 34.05.542(4)." Reply Br. of Clark County at 13. The County argues that service by e-mail satisfies the "delivery" requirement of RCW 34.05.542(4) because the Board has authorized service by electronic transmission in WAC 242-03-240(1). We hold that service by e-mail is insufficient to satisfy the requirements of RCW 34.05.542(4).
¶ 28 The Board is allowed to authorize service by electronic transmission. RCW 34.05.010(19). But it has not done so. The County relies on WAC 242-03-240 . WAC 242-03-240 is titled, "Filing and service of all other papers," and provides that parties shall electronically file pleadings and briefs to the board, and electronically complete service to other parties. But this rule is not applicable to appeals from the board’s decision. WAC 242-03-240 , and Title 242 of the Washington Administrative Code generally addresses practices and procedures for matters in front of the growth management hearings board. WAC 242-03-035 . Appeals from the Board’s final decision are governed by RCW 34.05.514 and RCW 34.05.542. RCW 36.70A.300 ; WAC 242-03-970 .
¶ 29 Moreover, WAC 242-03-240 does not authorize service of any type of petition for judicial review by e-mail. WAC 242-03-240 refers to the "[f]iling and service of all other papers," meaning other than a petition for review to the Board. WAC 242-03-230 specifically addresses filing and service of the petition for review for cases appealed to the Board. Thus, the "all other papers" referred to in WAC 242-03-240 describes all papers except a petition for review. And the only petition for review addressed in WAC 240-03-230 is a petition filed at the board, not a petition for judicial review filed in superior court after the Board has made its decision.
¶ 30 Here, the County was required to serve the agency by "delivering" the petition for judicial review to the agency’s office by April 24. RCW 34.05.542(4). Unless authorized by the agency, electronic transmission, such as e-mail, is not a proper form of service. RCW 34.05.010(19). Although service on other parties of record is complete when the petition is deposited in the United States mail, service on the agency is complete only when it is "delivered" to the Board. RCW 34.05.542(4).
The County also mailed the petition to the attorney general’s office using the United States mail on April 24. FOCC argues that mailing the petition to the attorney general does not adequately serve the Board because the attorney general had not appeared as the Board’s attorney of record until May 11. The County does not argue that mailing the petition constitutes service on the Board, thus, we do not address this issue.
"Service of the petition on the agency shall be by delivery of a copy of the petition to the office of the director, or other chief administrative officer or chairperson of the agency, at the principal office of the agency. Service of a copy by mail upon the other parties of record and the office of the attorney general shall be deemed complete upon deposit in the United States mail, as evidenced by the postmark." RCW 34.05.542(4).
¶ 31 Here, the Board did not authorize service by electronic transmission. Because e-mail is not an authorized form of service, the County did not deliver its petition for review to the Board’s office by April 24, 2017. The County did not timely serve its petition for judicial review, and we do not have appellate jurisdiction over its petition for review appealing the FDO. We grant FOCC’s motion to dismiss the County’s petition from the Board’s FDO.
FOCC does not argue that the County’s appeal from the Board’s compliance order was untimely. Accordingly, we consider the County’s arguments regarding the Board’s compliance order below.
2. 3B’s Petition Was Untimely Served
¶ 32 In response to FOCC’s motion to dismiss, 3B argues that it properly served the Board by sending its petition for judicial review to the Board through FedEx and that its service of the petition was complete on April 24 when it delivered its petition to FedEx. We disagree.
¶ 33 As discussed above, RCW 34.05.542(4) provides an exception to the general rule that service is complete upon deposit in the United States mail. RCW 34.05.010(19) ; Stewart , 191 Wash.2d at 47, 419 P.3d 838 ; Ricketts , 111 Wash. App. at 117-18, 43 P.3d 548. Under the exception, service on the agency is not complete until the petition is actually delivered to the agency’s office. RCW 34.05.542(4) ; see Ricketts , 111 Wash. App. at 118, 43 P.3d 548. Even assuming service through a commercial parcel delivery company like FedEx was proper, 3B did not timely serve the petition because the Board did not receive the petition until April 25. Because 3B’s petition was due to the Board by April 24, 3B did not timely serve its petition for review and we do not have appellate jurisdiction over its petition for review appealing the FDO. Thus, we grant FOCC’s motion to dismiss 3B’s petition for judicial review from the Board’s FDO.
3B also asserts that FedEx is a proper method of service because RCW 34.05.010(19) "acknowledges the potential for service by commercial parcel delivery company, such as FedEx." Reply Br. of 3B at 3 (footnote omitted). 3B is correct that agencies may, by rule, authorize service by commercial parcel delivery company. RCW 34.05.010(19). However 3B does not provide authority establishing that the Board authorized service of petitions for judicial review by commercial parcel delivery company. Moreover, 3B concedes that the Board did not receive its petition until April 25. We do not determine whether the Board authorized service by commercial parcel delivery company because 3B’s service was untimely.
In light of our holding that the dedesignation and designation of the annexed UGAs issue is moot, our decision to grant FOCC’s motion to dismiss 3B’s appeal from the FDO has no practical bearing on this case.
II. BOARD DECISIONS — LEGAL PRINCIPLES
¶ 34 Washington’s APA governs our review of the Board’s decisions. RCW 34.05.570(3) ; Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd. , 186 Wash.2d 648, 666, 381 P.3d 1 (2016). Under the APA, we review the Board’s legal conclusions de novo, but we give "substantial weight to the Board’s interpretation of the GMA." Whatcom County , 186 Wash.2d at 667, 381 P.3d 1. RCW 34.05.570(3) provides nine enumerated ways to challenge an agency action through judicial review. The parties here challenge the Board’s actions under five statutory sections: (1) the Board’s order is outside its statutory authority or jurisdiction; (2) the Board erroneously interpreted or applied the law; (3) the Board engaged in unlawful procedure or decision making, or has failed to follow proscribed procedures; (4) the Board’s actions are not support by substantial evidence; and (5) the Board’s actions are arbitrary and capricious. RCW 34.05.570(3)(b)-(e), (i). Here, the party challenging the Board’s decision bears the burden of establishing that the decision is improper. RCW 34.05.570(1)(a), (3)(d) ; Whatcom County , 186 Wash.2d at 667, 381 P.3d 1.
¶ 35 On review from initial challenges and on review following a Board’s remand for compliance, the Board determines whether a county’s plan is compliant with the GMA. RCW 36.70A.300(3). The Board must find compliance with the GMA "unless it determines that the action by the ... county ... 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(1), (3). To find a county’s action clearly erroneous, the Board must be " ‘left with the firm and definite conviction that a mistake has been committed.’ " Whatcom County , 186 Wash.2d at 667, 381 P.3d 1 (internal quotation marks omitted) (quoting King County v. Cent. Puget Sound Growth Mgmt. Bd ., 142 Wash.2d 543, 561, 14 P.3d 133 (2000) ).
¶ 36 Counties have discretion to make many choices about accommodating growth in their comprehensive plans and amendments. RCW 36.70A.110(2). County actions are presumed compliant and Boards must defer to local planning decisions. Kittitas County v. E. Wash. Growth Mgmt. Hr’gs Bd. , 172 Wash.2d 144, 154-55, 256 P.3d 1193 (2011). However, we do not afford counties deference in their interpretations of the GMA, and counties must comply with the requirements of the GMA. Whatcom County , 186 Wash.2d at 667, 381 P.3d 1 ; King County , 142 Wash.2d at 561, 14 P.3d 133. Deference to a county’s planning decisions supersedes the general deference we give to the Board under the APA. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. , 154 Wash.2d 224, 238, 110 P.3d 1132 (2005). It is under these guidelines that we review the correctness of the Board’s determination regarding whether the County’s actions were clearly erroneous. Concerned Friends of Ferry County v. Ferry County , 191 Wash. App. 803, 813, 365 P.3d 207 (2015).
¶ 37 We review the Board’s factual findings for substantial evidence. Kittitas County , 172 Wash.2d at 155, 256 P.3d 1193. Evidence is substantial if "when viewed in light of the whole record," RCW 34.05.570(3)(e), there is " ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness’ " of the finding. Kittitas County , 172 Wash.2d at 155, 256 P.3d 1193 (quoting Thurston County v. W. Wash. Growth Mgmt. Hr’gs Bd. , 164 Wash.2d 329, 341, 190 P.3d 38 (2008) ). When reviewing mixed questions of law and fact, we determine the law independently and apply the law to the facts found by the Board. Thurston County , 164 Wash.2d at 341, 190 P.3d 38. We consider whether the Board’s factual findings support its conclusions. Kittitas County v. Kittitas County Conserv. Coal. , 176 Wash. App. 38, 55 n.3, 308 P.3d 745 (2013).
¶ 38 We determine whether a Board’s order is arbitrary and capricious by reviewing "whether the order represents ‘willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.’ " Kittitas County , 172 Wash.2d at 155, 256 P.3d 1193 (internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. , 136 Wash.2d 38, 46-47, 959 P.2d 1091 (1998) ). "Issues not raised before [the Board] may not be raised on appeal." RCW 34.05.554(1). An exception exists if "[t]he interests of justice would be served by resolution of an issue arising from ... [a]gency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency." RCW 34.05.554(1)(d)(ii).
¶ 39 We conduct statutory interpretation to determine and give effect to legislative intent. Town of Woodway v. Snohomish County , 180 Wash.2d 165, 173, 322 P.3d 1219 (2014). Legislative intent is primarily deprived from statutory language. Town of Woodway , 180 Wash.2d at 173-74, 322 P.3d 1219. When the statutory language is unambiguous, we apply the plain meaning of the statute. Town of Woodway , 180 Wash.2d at 174, 322 P.3d 1219. In the absence of legislative definitions, we give statutory terms their plain and ordinary meanings as defined in the dictionary. Lockner v. Pierce County , 190 Wash.2d 526, 537, 415 P.3d 246 (2018). When analyzing a statute’s plain language, we consider the specific text of the relevant provision, the context of the entire statute, related provisions, and the statutory scheme as a whole. Lowy v. PeaceHealth , 174 Wash.2d 769, 779, 280 P.3d 1078 (2012). We do not liberally construe the GMA. Woods v. Kittitas County , 162 Wash.2d 597, 614, 174 P.3d 25 (2007).
III. MOOTNESS OF UGA DESIGNATIONS RESULTING FROM ANNEXATIONS
¶ 40 La Center, Ridgefield, and the LLCs argue that the Board’s finding of the County’s noncompliance regarding the County’s UGA designations is moot. Specifically, they argue that the Board (1) erroneously failed to acknowledge that the County’s action regarding the UGAs was rendered moot by the annexations and (2) arbitrarily and capriciously required the County to take action regarding land no longer within its control. We hold that arguments regarding the annexed lands are moot.
A. Facts Pertaining to the Mootness of UGA Designations Resulting from Annexations
¶ 41 In the County’s 2016 Plan Update, the County dedesignated areas of agricultural land adjacent to the cities of La Center and Ridgefield and designated these lands as UGAs. Both La Center and Ridgefield annexed these adjacent UGAs into their respective cities long before the Board’s hearing in February 2017.
Futurewise challenged the Ridgefield annexation. We affirmed the superior court’s dismissal of the challenge. Futurewise v. City of Ridgefield , No. 50406-5-II, slip op. at 2, 2019 WL 366838 (Wash. Ct. App. Jan. 29, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2050406-5-II%20Unpublished%20Opinion.pdf.
¶ 42 The Board concluded, in part, that the County did not comply with the GMA when it dedesignated agricultural land and designated the UGAs. Further, the Board made determinations of invalidity regarding the County’s UGA designations. The Board remanded the 2016 Plan Update to the County for the County to come into compliance with the GMA.
¶ 43 The County did not take remedial action regarding the UGAs relevant here, arguing that it could not change the designation of the annexed land no longer within its control. The Board concluded that the County was not in compliance regarding these UGAs.
B. GMA Compliance Legal Principles
¶ 44 The Board may review comprehensive plans and their amendments for compliance with the GMA. RCW 36.70A.280. However, the Board lacks the authority to determine many types of land-related disputes. Relevant here, the Board does not have authority to review cities’ land annexations. See RCW 36.70A.280.
¶ 45 The Board determines whether a county’s plan is in compliance with the GMA. RCW 36.70A.300(3). When the Board determines that a plan or its amendments are flawed, it may enter a finding of noncompliance or a determination of invalidity. RCW 36.70A.300, .302. When the Board finds that the plan or its amendments are noncompliant, the Board remands the matter back to the county with instructions to comply with the GMA. RCW 36.70A.300(3)(b). A plan or its amendments remain valid during the remand period following the Board’s noncompliance finding. RCW 36.70A.300(4) ; Town of Woodway , 180 Wash.2d at 174, 322 P.3d 1219.
¶ 46 When the Board finds that the plan or its amendments are invalid, the Board must (1) find noncompliance and remand the plan back to the county and (2) enter a determination of invalidity supported by findings of fact and conclusions of law. RCW 36.70A.302(1)(a), (b). This invalidity determination must conclude that the flawed provision of the plan or its amendments substantially interfere with the goals of the GMA. RCW 36.70A.302(1)(b). "Upon a finding of invalidity, the underlying provision would be rendered void." King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. , 138 Wash.2d 161, 181, 979 P.2d 374 (1999).
¶ 47 Significantly, an updated plan is presumed to be valid upon adoption. RCW 36.70A.320(1). In addition, a finding of invalidity is "prospective in effect and does not extinguish rights that vested under state or local law before receipt of the board’s order by the city or county." RCW 36.70A.302(2). A finding of invalidity does not apply to certain vested rights, namely development permit applications. RCW 36.70A.302(2) - (3).
C. The Board’s Final Decision Order Is Prospective
¶ 48 Here, the Board made a determination of invalidity regarding the UGAs. The Board made related findings of fact and conclusions of law that the County’s 2016 Plan Update did not comply with the GMA and determined that the UGAs for La Center, Ridgefield, and Battle Ground were invalid. This determination rendered the UGA provisions void. King County , 138 Wash.2d at 181, 979 P.2d 374.
¶ 49 The parties disagree as to the retroactivity of the determination of invalidity regarding the UGA provisions. FOCC argues that the UGA provisions are essentially "void ab initio," or "null from the beginning," and thus, we should unwind Ridgefield’s and La Center’s annexations of the UGAs to return the lands to their prior designations and jurisdiction under the County. Br. of FOCC at 12. Conversely, the cities and the LLCs argue that the UGAs are void beginning from the date of the Board’s order. We hold that the Board’s order is prospective from the date of the order.
¶ 50 RCW 36.70A.302(2) plainly states that "[a] determination of invalidity is prospective in effect." Prospective means "concerned with or relating to the future: effective in the future." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1821 (2002). Here, the language of RCW 36.70A.302(2) is clear and unequivocal. A determination of invalidity is effective going forward from the date of the order. A determination of invalidity cannot alter whatever occurred prior to the Board’s rendering of its decision.
D. The County Lacks Authority Over the Annexed UGAs
¶ 51 The cities and LLCs argue that given that a determination of invalidity is prospective only, the UGA issues are moot because the UGAs were annexed by the respective cities before the Board’s determination of invalidity. Thus, the annexations deprived the Board and the County of authority to act, and consequently, the determination cannot have any legal effect. We agree.
1. Mootness Following Annexation Legal Principles
¶ 52 An issue is moot if the court can no longer provide effective relief. SEIU Healthcare 775NW v. Gregoire , 168 Wash.2d 593, 602, 229 P.3d 774 (2010). "The central question of all mootness problems is whether changes in the circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief." SEIU Healthcare 775NW , 168 Wash.2d at 602, 229 P.3d 774 (internal marks omitted).
¶ 53 After land contiguous to a city has been designated UGA, that city may annex that contiguous land. RCW 35.13.005, .010. Article XI, section 11 of the Washington Constitution states, "Any county, city, town, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws." RCW 35.63.080 authorizes a city council, board, or commissioners to prepare, adopt, and enforce plans for the physical development of the municipality.
¶ 54 All three regions of the growth management hearings board have examined this question and have held that after a city annexes land, that land is no longer within the county’s jurisdiction. For example, in Panesko v. Lewis County , Lewis County expanded a UGA to include certain rural lands. No. 08-2-0007c, 2009 WL 2981888, at *5 (W. Wash. Growth Mgmt. Hr’gs Bd. July 27, 2009). The City of Toledo successfully annexed this UGA land four months before the Board issued its FDO regarding Lewis County’s compliance with the GMA. Panesko , at *1, *5-6. In reviewing Lewis County’s compliance with the GMA following a remand period, the Board stated:
It is unfortunate that the [UGA] was annexed in the midst of a proceeding to consider its designation as agricultural land of long term commercial significance. Nevertheless, the Board finds nothing egregious in the County’s conduct.... The Board has no jurisdiction in the realm of municipal annexations. Further, now that the [UGA] has been annexed by the City of Toledo, the issue of whether this property should be included as part of the UGA is moot.
Conclusion : The City of Toledo having annexed the [UGA], the land is no longer subject to the County’s jurisdiction. The County having no ability to consider or alter the designation of this property as agricultural land of long term commercial significance, it need not take any further action in that regard.
Panesko , at *6 (footnotes omitted).
¶ 55 In 1000 Friends of Washington v. Snohomish County , Snohomish County dedesignated an area called Island Crossing as agricultural and instead designated it as UGA. No. 03-3-0019c, 2009 WL 795934, at *1 (Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Feb. 19, 2009). The Board found these designations noncompliant with the GMA. 1000 Friends of Washington at *1. After our Supreme Court reversed the Board’s determination, the City of Arlington annexed the Island Crossing UGA. 1000 Friends of Washington , at *2. On remand, the Board determined that "the sole question for the Board was whether the County had already taken steps to adjust its future land-use map and zoning designations in the Island Crossing area." 1000 Friends of Washington , at *2. The Board concluded, "Given that the Island Crossing area has been annexed by the City of Arlington and is no longer within the jurisdiction of Snohomish County, the Board concludes that a remand back to the County would be an empty act. The ‘urban’ land in question is now the City of Arlington’s to govern." 1000 Friends of Washington , at *3.
¶ 56 In Futurewise v. Benton County , Futurewise argued that the Board should impose a determination of invalidity regarding Benton County’s dedesignation of agricultural land that the County redesignated as UGA near the City of Kennewick. No. 14-1-0003, 2015 WL 999266, at *1-2 (E. Wash. Growth Mgmt. Hr’gs Bd. Jan. 15, 2015). In its FDO, the Board determined that these designations were not compliant with the GMA but did not issue a determination of invalidity. Futurewise , at *1. Futurewise argued that without a determination of invalidity, the UGA "could be quickly annexed to the City of Kennewick mooting the Board’s Final Decision and Order." Futurewise , at *2. The Board stated that annexing the land would indeed "effectively moot the Board’s Final Decision and Order." Futurewise , at *3. In granting Futurewise’s request for a determination of invalidity, the Board stated that it "heard concerns expressed at the hearing that a landowner-initiated annexation petition action might circumvent the GMA compliance process and render compliance actions moot. The Board notes that in the absence of an invalidity order, petitioners have little remedy if an annexation of this property was accomplished." Futurewise , at *4.
¶ 57 This is not the first time Clark County has created this circumstance. In 2007, Clark County dedesignated agricultural lands and redesignated these lands as UGA, including lands near the cities of Camas and Ridgefield. Clark County v. W. Wash. Growth Mgmt. Hearings Bd. , 161 Wash. App. 204, 214, 254 P.3d 862 (2011) vacated in part by Clark County v. W. Wash. Growth Mgmt. Hearings Bd. , 177 Wash.2d 136, 142-43, 148, 298 P.3d 704 (2013). Challengers, including Futurewise, petitioned the Board to review the County’s compliance with the GMA. Clark County , 161 Wash. App. at 214, 254 P.3d 862. Before the Board issued its FDO, Camas and Ridgefield passed ordinances annexing UGA lands. Clark County , 161 Wash. App. at 214, 254 P.3d 862. Without notice of the annexations, the Board determined that the County’s designations of the annexed lands were noncompliant with the GMA and invalid. Clark County , 161 Wash. App. at 215, 254 P.3d 862. However, after learning of the annexations, the Board issued an order stating that it lacked jurisdiction over the annexed lands. Clark County , 161 Wash. App. at 220, 254 P.3d 862.
¶ 58 We held that because the County’s comprehensive plan amendments were pending review, the amendments were not final and parties could not act in reliance on them. Clark County , 161 Wash. App. at 224-25, 254 P.3d 862. We further held that the legislature did not intend to allow a county to evade review of their planning decisions by making a UGA designation followed by an immediate annexation. Clark County , 161 Wash. App. at 225, 254 P.3d 862. Accordingly, we held that the annexations did not preclude the Board’s jurisdiction to review the validity of the County’s actions regarding the annexed lands. Clark County , 161 Wash. App. at 225-26, 254 P.3d 862.
¶ 59 Our Supreme Court vacated our decision regarding the annexed lands. Clark County , 177 Wash.2d at 148, 298 P.3d 704. The Supreme Court held that because the parties had not appealed issues regarding the annexed lands and because the annexed lands had no bearing on the resolution of claims on appeal, it was error to address issues relating to the annexed lands. Clark County , 177 Wash.2d at 148, 298 P.3d 704. Moreover, Justice Stephens concurred in reversing our opinion, joined by Justice Wiggins, stating:
I would dismiss the claims challenging the annexation as moot in the context of this proceeding. The claims in question originated in a petition to the [Board] challenging Clark County’s designation of certain lands under the [GMA]. The cities of Camas and Ridgefield have annexed the lands in question, and those annexations cannot be challenged in these proceedings. As a result, the question of whether the Board properly reviewed Clark County’s prior designation of the annexed lands is moot. Dismissal should follow. See Seguin v. Barei , 163 Wash. 702, 703, 299 P. 655 (1931) (dismissing appeal where underlying interest in disputed property was dissolved in separate proceeding).
Clark County , 177 Wash.2d at 149, 298 P.3d 704 (Stephens, J. concurring).
2. Issues Regarding La Center’s and Ridgefield’s Annexed Lands Are Moot
¶ 60 Issues regarding the annexed lands are moot because the Board can provide no effective relief. The Board’s role is to determine whether the County is in compliance with the GMA. RCW 36.70A.300(1). However, after land contiguous to a city has been designated UGA, that city may annex that contiguous land. RCW 35.13.005, .010. Once that land has been annexed, it is within the city’s sole jurisdiction. WASH. CONST. art. XI, § 11 ; RCW 35.63.080. As a result, when La Center and Ridgefield annexed previously unincorporated land into their municipalities, the County lost its ability to plan for that land. RCW 35.63.080 ; 35A.11.020. The Board cannot compel the County to take action to come into compliance regarding land the County does not control. Such compulsion is beyond the quasijudicial powers of the Board. See RCW 36.70A.300(1).
¶ 61 FOCC compares this case to Miotke v. Spokane County , 181 Wash. App. 369, 325 P.3d 434 (2014). However, Miotke is distinguishable. In Miotke , Spokane County designated a UGA that was not subsequently annexed. Miotke , 181 Wash. App. at 373-75, 325 P.3d 434. While the Board reviewed the designation, development rights of property owners vested in the new UGA. Miotke , 181 Wash. App. at 373, 325 P.3d 434. The Board found the UGA designation noncompliant with the GMA. Miotke , 181 Wash. App. at 373, 325 P.3d 434. In an attempt to comply, Spokane County repealed the UGA designation and reverted the land to its prior designation. Miotke , 181 Wash. App. at 374, 325 P.3d 434.
¶ 62 On appeal, Spokane County argued that the vested urban development rights of the landowners in the former UGA prevented it from complying with the GMA. Miotke , 181 Wash. App. at 379, 325 P.3d 434. We held that the vested rights of property owners did not relieve Spokane County from its planning obligations under the GMA. Miotke , 181 Wash. App. at 379, 325 P.3d 434. Rather, it was Spokane County’s designation of the UGA that created the opportunity for vested rights, and Spokane County was responsible for GMA compliance in its planning decisions. Miotke , 181 Wash. App. at 379-80, 325 P.3d 434.
¶ 63 Miotke is distinguishable because the disputed land always remained within the jurisdiction of Spokane County’s comprehensive plan. Miotke , 181 Wash. App. at 373-75, 325 P.3d 434. Because of this, the Board retained the power to determine the county’s compliance with the GMA. Miotke , 181 Wash. App. at 379-80, 325 P.3d 434.
¶ 64 Here, because of the prospective nature of the Board’s determination of invalidity, the County cannot exercise authority over annexed land no longer within its control. As a result, issues regarding the annexed lands are moot. ,
We note that the County and cities have previously engaged in a pattern of UGA designation followed by swift annexation. Clark County , 161 Wash. App. at 225, 254 P.3d 862. Moreover, at oral argument, FOCC showed us a map of the UGA annexed by La Center. Wash. Court of Appeals oral argument, Friends of Clark County and Futurewise v. Clark County, et al. , No. 50847-8-II (July 3, 2019), at 21 min., 53 sec. (on file with court). The UGA had irregular borders that followed specific property lines. Additionally, in its compliance order, the Board noted the County’s repeated evasion of GMA compliance review in previous instances where cities had rapidly annexed UGAs. Regardless of the validity of any questionable behavior, this is an issue for the legislature.
FOCC argues that the prospectivity of RCW 36.70A.302(2) is confined to only vested rights. However, the plain language of RCW 36.70A.302(2) does not confine the prospective of a determination of invalidity to vested rights. Further, RCW 36.70A.302 provides guidance regarding the effects of determinations of invalidity on savings clauses, interim ordinances, as well as property rights. We reject FOCC’s attempt to construe RCW 36.70A.302(2) more narrowly than the language provides.
¶ 65 In this published portion of our opinion, we grant FOCC’s motion to dismiss the County’s and 3B’s petitions for lack of appellate jurisdiction. Further, we hold that issues regarding the annexed lands are moot. In the unpublished portion of this opinion, we hold that the Board did not err regarding the remaining issues raised by CCCU and FOCC. We remand back to the Board for further proceedings in accordance with this opinion.
¶ 66 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Maxa, C.J.
Glasgow, J.