Arlington v. Growth Management Hearings Bd.

• Decision Date: 26 March 2007
• Docket Number: No. 57253-9-I.,57253-9-I.
• Citation: 154 P.3d 936,138 Wn. App. 1
• Parties: CITY OF ARLINGTON, Dwayne Lane and Snohomish County, Appellants, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, State of Washington; 1000 Friends of Washington nka Futurewise; Stillaguamish Flood Control District; Pilchuck Audubon Society; The Director of the State of Washington Department of Community, Trade, and Economic Development and Agriculture for Tomorrow, Respondents.
• Court: Washington Court of Appeals

154 P.3d 936

138 Wn. App. 1

CITY OF ARLINGTON, Dwayne Lane and Snohomish County, Appellants, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, State of Washington; 1000 Friends of Washington nka Futurewise; Stillaguamish Flood Control District; Pilchuck Audubon Society; The Director of the State of Washington Department of Community, Trade, and Economic Development and Agriculture for Tomorrow, Respondents.

No. 57253-9-I.

Court of Appeals of Washington, Division 1.

March 26, 2007.

Steven James Peiffle, Attorney at Law, Arlington, WA, for Appellant City of Arlington.

Todd Charles Nichols, Cogdill Nichols Rein Wartelle Andrews, Everett Wa, for Appellant Dwayne Lane.

John Roberts Moffat Civil Div Snohomish County Prosecutor's Everett, WA, for Appellant Snohomish County.

Martha Patricia Lantz, Office of Atty Gen, Lic & Admin Law Div, Olympia, for Respondent Central Puget Sound.

Alan D. Copsey, Office of the Atty General, Olympia, WA, for Respondent Dept. of Trade and Economic.

John T. Zilavy, Tim Trohimovich, Futurewise, Futurewise, Seattle, for Respondents Agriculture for Tomorrow Futurewise, Pilchuck Audubon Society.

Henry E. Lippek, The Public Advocate, Seattle, WA, for Respondent Stillaquamish Flood Control.

GROSSE, J.

¶ 1 The Growth Management Hearings Board must find compliance with the Growth Management Act of 1990(GMA) unless it determines that a county action is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA. Here, the Board failed to consider important evidence in the record that supports Snohomish County's finding that the land at Island Crossing was not land of long-term commercial significance to agriculture and thus eligible for redesignation to urban commercial use. Because, in light of the improperly dismissed evidence, the County's action redesignating the land was not clearly erroneous, we reverse and remand.

FACTS

¶ 2 This appeal is the latest episode in a long fight over the designation of a triangular piece of land in Snohomish County located north of the City of Arlington. The land borders the interchange of Interstate 5 and State Road 530, and is part of an area known as Island Crossing.

Prior Appeal

¶ 3 The land at issue was designated and zoned agricultural in 1978. In 1995, Snohomish County adopted a comprehensive plan under the Growth Management Act (GMA). As part of the plan, the County redesignated Island Crossing as urban commercial and included it in Arlington's Urban Growth Area (UGA). The Growth Management Hearings Board affirmed the decision in Sky Valley v. Snohomish County, No. 95-3-0068c (Final Decision and Order, 1996 Wl 734917).¹

¶ 4 In 1997, the Snohomish County Superior Court reviewed the Board's decision affirming the County's action and determined substantial evidence in the record did not support the redesignation of Island Crossing and the inclusion of the land in the UGA. Specifically, the superior court found that Island Crossing is in active/productive use for agricultural crops on a commercial scale and that the area is not characterized by urban growth under GMA standards. The superior court remanded to the Board for a detailed examination. The Board in turn ordered the County to conduct additional public hearings on this issue.

¶ 5 The County held public hearings and after considering the oral and written testimony and the Planning Commission's public hearings record, the Snohomish County Council passed two ordinances redesignating Island Crossing as agricultural resource land and removing it from Arlington's UGA. Specifically, the Council found that Island Crossing is devoted to agriculture and is actually used or is capable of being used as agricultural land. It also found that the area is in current farm use with interspersed residential and farm buildings. The County Executive approved the ordinances.

¶ 6 Dwayne Lane, a party in the current case and owner of 15 acres of land bordering Interstate 5 in Island Crossing, challenged the County's designation of Island Crossing as agricultural resource land. Lane planned to locate an automobile dealership on his land at Island Crossing. He filed a petition for review of the County's 1998 decision with the Board, contending that the County failed to comply with the GMA. The Board concluded the County complied with the GMA and that the County's conclusion was not clearly erroneous. The superior court affirmed the Board's decision.

¶ 7 Lane then appealed to this court. Lane argued that the record did not support the Board's decision to affirm the County's designation of Island Crossing as agricultural resource land under the GMA. In an unpublished decision this court disagreed with Lane, concluding:

Island Crossing is composed of prime agricultural soils and has been described as having agricultural value of primary significance. Except for the County's 1995 dedesignation of Island Crossing as agricultural land, Island Crossing has been designated and zoned agricultural since 1978. Thus, the record supports a finding that Island Crossing is capable of being used for agricultural production. Although Island Crossing borders the interchange of Interstate 5 and State Road 530, it is separated from Arlington by farmland. Indeed, the record contains evidence to indicate that most of the land in Island Crossing is being actively farmed, except a small area devoted to freeway services. Thus, the record indicates that the land is actually used for agricultural production. The only urban development permits issued for Island Crossing are for the area that serves the freeway. Further, the substantial shoreline development permit for sewer service in the freeway area explicitly "prohibits any service tie-ins outside the Freeway Service area." Thus, adequate public facilities and services do not currently exist. Although Lane speculates that it may be possible for him to obtain permits under exceptions to the present restrictions, he fails to demonstrate that such permits can be provided in an efficient manner as required by statute.

Although the record may contain evidence to support a different conclusion, this court cannot reweigh the evidence. Indeed, the record contains substantial evidence supporting the conclusion that the designation of Island Crossing as agricultural land encourages the conservation of productive agricultural lands and discourages incompatible uses in accordance with the GMA. And the removal of Island Crossing from Arlington's UGA is consistent with the GMA's goal to encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. The record supports the Board's decision that the County's designation of Island Crossing as agricultural resource land was not clearly erroneous. Further, as discussed above, Lane failed to show that the Board made a legal error or that its decision was arbitrary and capricious. Thus, he failed to satisfy his burden of showing that the Board's action was invalid and, as a result, Lane is not entitled to relief.²

Current Appeal

¶ 8 Two years later, in September 2003, the Snohomish County Council passed Amended Ordinance No. 03-063. The ordinance amended the County's Comprehensive Plan to add 110.5 acres in Island Crossing to the Arlington UGA, changed the designation of that land from Riverway Commercial Farmland (75.5 acres) and Rural Freeway Service (35 acres) to Urban Commercial, and rezoned the land from Rural Freeway Service and Agricultural-10 Acres to General Commercial.

¶ 9 An appeal was filed with the Board in October 2003. The Board divided the issues into three groups: the redesignation of agricultural resource land (issue 2); urban growth and expansion issues (issues 3 and 4); and critical areas issue (issue 5). The Board declined to address the critical areas issue and that issue is no longer part of this appeal.

¶ 10 Regarding the redesignation of Island Crossing as urban commercial from agricultural resource land, the Board stated in its Corrected Final Decision and Order that the petitioners had carried their burden of proof to show the ordinance failed to be guided by and did not substantively comply with RCW 36.70A.020(8) (planning goal to preserve natural resource land) and that it failed to comply with RCW 36.70A.040 (local governments must adopt development regulations that preserve agricultural lands), RCW 36.70A.060(1) (conservation of agricultural lands) and RCW 36.70A.170(1)(a) (designation of agricultural lands). The Board found that the County's action was unsupported by the record and thus was clearly erroneous in concluding that the land in Island Crossing no longer met the criteria for designation as agricultural land of long-term commercial significance and remanded the ordinance to the County to take legislative action to bring it into compliance with the goals and requirements of the GMA.

¶ 11 Regarding the Urban Growth Area and expansion issues the Board stated in its decision and order that petitioners had carried their burden of proof to show the ordinance failed to be guided by and did not substantively comply with RCW 36.70A.020(1),(2), and (8) (planning goals requiring encouragement of urban growth in urban growth areas, reduction of sprawl, enhancement of natural resource industries) and that it failed to comply with RCW 36.70A.110 and .215 (limiting UGA expansions to land necessary to accommodate projected future growth and setting priorities for the expansion of urban growth areas) and .210(1). The Board therefore concluded that the County's action regarding the UGA expansion was clearly erroneous and remanded the ordinance to the County to take legislative action to bring it into compliance with the goals and requirements of the GMA. Upon remand the County held new hearings, took new testimony and adopted a new land capacity analysis. Based on the new evidence,...