Opinion
No. 22525-9-III
Filed: December 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No. 02-2-03956-1. Judgment or order under review. Date filed: 10/07/2003.
Counsel for Appellant(s), David Scott Mann, Attorney at Law, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.
Martha Patricia Lantz, Offc of Atty Gen Lic Admin Law Div, PO Box 40110, Olympia, WA 98504-0110.
Counsel for Respondent(s), James Cortland Carmody, Velikanje Moore Shore PS, 405 E Lincoln Ave, PO Box 22550, Yakima, WA 98907-2550.
Terry Dee Austin, Attorney at Law, Rm 211 Yakima Co Crthse, 128 N 2nd St, Yakima, WA 98901-2639.
Yakima County amended its comprehensive plan in 2001 with respect to 1,086 acres of Jim and Charlotte Caton's property. The Wenas Citizens Association and Brent Brune (WCA) appealed the amendment to the Eastern Washington Growth Management Hearings Board (the Board), which found the amendment was invalid. The Catons and Yakima County appealed, whereupon the superior court reversed the Board's decision and reinstated the amendment. WCA and the Board appeal. We remand to the Board for further proceedings.
The Catons own property in Yakima County. The property is located on a ridge separating the Naches and Wenas valleys and is approximately two miles northeast of the town of Naches.
The property currently has a single family home site, vacant land, and an inert demolition waste landfill. There are several soil types — none of which are classified as prime farmland. The property has no current water rights and is not within an irrigation district. From 1986 through 1997, 795 acres of the Caton property was enrolled in the Federal Conservation Reserve Program.
In 1997, Yakima County adopted a Comprehensive Plan under chapter 36.70A RCW, the Growth Management Act (GMA), referred to as Plan 2015. Under Plan 2015, the Caton property was designated `Agricultural Resource.' Certified Appeal Board Record (BR) at 276. This designates the property as lands of long-term commercial significance.
In 2001, the Catons applied for an amendment to Plan 2015. They initially sought to change the designation of 1,770 acres from Agricultural Resource to Rural Self-Sufficient. On October 24, 2001, the Catons modified their application and asked to change the designation of only 1,086 acres. The modification also sought to change the zoning of the 1,086 acres from Agricultural to Valley Rural — a change that would reduce the minimum lot size from forty acres to five acres.
The Yakima Planning Commission staff recommended denying the amendment. It did not think the subject property was appropriately designated Agricultural Resource, but also did not think Rural Self-Sufficient was the proper designation. Claiming the amendment better implemented Plan 2015 and corrected an obvious mapping error, the Planning Commission and the County Commissioners nonetheless approved the amendment and redesignated 1,086 acres from Agricultural Resource to Rural Self-Sufficient.
WCA appealed to the Board, arguing the redesignation violated the GMA because it failed to conserve agricultural lands of long-term commercial significance. Yakima County responded that the amendment better implemented the Comprehensive Plan and corrected an obvious mapping error. The Catons intervened.
The Board concluded that the county failed to properly designate and conserve agricultural resource lands and thus was not in compliance with the GMA. The Board further found the lands were agricultural lands of long-term commercial significance. The Board remanded the ordinance redesignating the property and the rezone to the county, ordering it to comply with the GMA.
Yakima County and the Catons appealed the Board's decision to the superior court. Finding the Board had applied the wrong standard of review, the court reversed and reinstated the county's decision. WCA's motion for reconsideration was denied. This appeal follows. `The Board is charged with adjudicating GMA compliance and, when necessary, with invalidating noncompliant comprehensive plans and development regulations.' King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 552, 14 P.3d 133 (2000) (citing RCW 36.70A.280, .302). The Board "shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of [the GMA]." Id. (quoting RCW 36.70A.320(3)). An action is "clearly erroneous" if the Board is "left with the firm and definite conviction that a mistake has been committed." Id. (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 201, 849 P.2d 646 (1993), aff'd, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994)).
A party aggrieved by a final Board decision may appeal the decision to superior court as provided in chapter 34.05 RCW, the Administrative Procedure Act (APA). RCW 36.70A.300(5). In judicial review under the APA, the "burden of demonstrating the invalidity of agency action is on the party asserting invalidity." City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998) (quoting RCW 34.05.570(1)(a)).
The validity of the Board's decision shall be determined in accordance with the standards of review in RCW 34.05.570. Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 8, 57 P.3d 1156 (2002). RCW 34.05.570(3) lists nine reasons for granting relief from a Board decision. Id. Here, the county and the Catons contend the Board erroneously applied the law and its final decision and order are not supported by substantial evidence. We review the record before the agency, sitting in the same position as the superior court, under the standards set forth in chapter 34.05 RCW. King County, 142 Wn.2d at 553.
We must first determine if the Board applied the proper standard of review. In reviewing a municipality's actions, the Board must presume the comprehensive plan and ensuing regulations are valid. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 116 Wn. App. 48, 55, 65 P.3d 337, review denied, 150 Wn.2d 1007 (2003). The party petitioning the Board has the burden to show noncompliance. Id. The Board must find compliance unless the action is clearly erroneous. Id.
Review of the record indicates the Board improperly shifted the burden of proof to the county and the Catons. The Board stated that the county did not establish an adequate basis for the redesignation of the Catons' land. It also said the county and the Catons did not convince it that the redesignation of this property was proper. But neither the county nor the Catons had the burden of proof. The Board was required to presume the County's actions were valid. It did not and therefore erred. City of Redmond, 116 Wn. App. at 58.
The parties also dispute whether the Board applied the proper level of scrutiny. The Board cites a Central Puget Sound Hearings Board decision indicating a redesignation of agricultural lands is subject to heightened scrutiny. But Division One of this court rejected that position, finding it was error for that board to apply heightened scrutiny to the decision to redesignate the land. City of Redmond, 116 Wn. App. at 58. To the extent the Board here applied a heightened standard of review, it erred.
The Board ultimately determined that Yakima County erred in redesignating the Caton property. The Board based its decision in part on its finding that the land was agricultural land of long-term commercial significance. In reviewing a finding of fact, this court determines whether there is substantial evidence to support it. King County, 142 Wn.2d at 553. Evidence is substantial if it is sufficient to persuade a reasonable person of the truth or correctness of the order. Id.
Under the GMA, a county must designate and conserve agricultural lands of long-term significance. Whidbey Envtl. Action Network v. Island County, 122 Wn. App. 156, 181, 93 P.3d 885 (2004) (citing RCW 36.70A.170(1)(a)). Specifically, RCW 36.70A.170(1)(a) states:
(1) On or before September 1, 1991, each county, and each city, shall designate where appropriate:
(a) Agricultural lands that are not already characterized by urban growth and that have long-term significance for the commercial production of food or other agricultural products. Plan 2015 initially designated the Caton property as agricultural. RCW 36.70A.030(2) defines `agriculture 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 upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.
"Long-term commercial significance' includes the growing capacity, productivity, and soil composition of the land for long-term commercial production, in consideration with the land's proximity to population areas, and the possibility of more intense uses of the land.' City of Redmond, 136 Wn.2d at 49 (citing RCW 36.70A.030(10)). In order for land to qualify as agricultural under the GMA, it must be land primarily devoted to commercial production and land that has long-term commercial significance. See id. at 53-54.
The Board mentioned three factors in its determination that the property was agricultural land that had long-term commercial significance: (1) the type of soil, (2) the potential for irrigation or water, and (3) the current use. These were the only factors considered by the Board when it determined the county erred in concluding the Caton property was not agricultural land of long-term commercial significance. But it did not apply the particular facts in this case to the definition of `agricultural land.'
With regard to the proper definition of `agricultural land,' we note the Legislature specifically provided for two elements to the definition of `agricultural lands' under GMA. The Board's decision focused on the element of whether the land was `primarily devoted to' agricultural purposes, and decided the petition solely on that element. Thus, it did not address the issue of `long-term commercial significance for agricultural production.' Under the statutory definition of this second element, the Board must evaluate growing capacity, productivity, and soil composition, proximity to population areas, and the possibility of more intense uses of the land in question before the area could be designated `agricultural land.'
City of Redmond, 136 Wn.2d at 53-54.
The Board did not mention the definition of `agricultural land' in RCW 36.70A.030(2). It did not analyze how the facts apply to the two elements of the statutory definition. The Board certainly did not evaluate the growing capacity or productivity of the Caton property. It also did not discuss the proximity to population areas or the other potential uses of the property. City of Redmond requires such an evaluation. The Board's failure to do so was error. We must remand this case to the Board so it can consider whether the Caton property meets the statutory definition of agricultural land.
The Board also concluded Yakima County did not meet its own criteria for amending Plan 2015. Under the Yakima County Code, a change in the designation of property must do one of the following:
(i) Respond to a substantial change in conditions beyond the property owner's control applicable to the area within which the subject property lies; or
(ii) Better implement applicable comprehensive plan policies than the current map designation; or
(iii) Correct an obvious mapping error; or
(iv) Address an identified deficiency in the plan.
BR at 347 (Yakima County Code 16B.10.040(1)(e)). The Board held that the criteria had not been met. But again, it did not analyze the facts in relation to these criteria.
The Board's determination that Yakima County's criteria for changing the designation of the Caton property was not met is a conclusion of law. We review legal conclusions de novo to determine if the hearing judge correctly applied the law, including whether the factual findings support the legal conclusions. In re License of Farina, 94 Wn. App. 441, 450, 972 P.2d 531 (1999). Here, the Board made no factual findings regarding any of the criteria. There are also no facts in the Board's decision that would specifically support this conclusion. The conclusion cannot be sustained. The Board and WCA also claim the court erred by not remanding this case to the Board for further proceedings. Under the APA, an appellate court may affirm, reverse, or remand the agency's decision. RCW 34.05.574(1).
Specifically, the APA states:
`In reviewing matters within agency discretion, the court shall limit its function to assuring that the agency has exercised its discretion in accordance with law, and shall not itself undertake to exercise the discretion that the legislature has placed in the agency. The court shall remand to the agency for modification of agency action, unless remand is impracticable or would cause unnecessary delay.'
Hillis v. Dep't of Ecology, 131 Wn.2d 373, 400, 932 P.2d 139 (1997) (quoting RCW 34.05.574(1)(b)).
Here, the superior court determined that the Board had not properly exercised its discretion in determining if the amendment complied with the GMA. Whether the amendment complied with the GMA, however, is a matter within the Board's discretion. Accordingly, the court should have remanded this matter to the Board, unless doing so is impracticable or would cause delay. See Manke Lumber Co. v. Diehl, 91 Wn. App. 793, 809, 959 P.2d 1173 (1998), review denied, 137 Wn.2d 1018 (1999). Nothing in the record indicates remand is impracticable or would cause delay. The superior court erred by concluding Yakima County's redesignation of the Caton property complied with the GMA. Remand to the Board was the proper remedy.
Remanded to the Board for further proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., Concur.