Clark County Wash. v. Western Wash. Growth Mgmt. Hearings Review Bd.

• Citation: 254 P.3d 862,161 Wash.App. 204
• Decision Date: 13 April 2011
• Docket Number: No. 39546–1–II.,39546–1–II.
• Court: Court of Appeals of Washington
• Parties: CLARK COUNTY WASHINGTON, City of LA Center, GM Camas LLC, MacDonald Living Trust, and Renaissance Homes, Respondents,v.WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS REVIEW BOARD, John Karpinski, Clark County Natural Resources Council, and Futurewise, Appellants.

161 Wash.App. 204
254 P.3d 862

CLARK COUNTY WASHINGTON, City of LA Center, GM Camas LLC, MacDonald Living Trust, and Renaissance Homes, Respondents,
v.
WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS REVIEW BOARD, John Karpinski, Clark County Natural Resources Council, and Futurewise, Appellants.

No. 39546–1–II.

Court of Appeals of Washington, Division 2.

April 13, 2011.

[254 P.3d 865]

Tim Trohimovich, Futurewise, Seattle, WA, Robert A. Beattey, Spencer Law Firm, LLC, Tacoma, WA, for Appellants.Christine M. Cook, Clark Co. Prosc. Attny. Office, Vancouver, WA, for Respondents.Meridee E. Pabst, Attorney at Law, Washougal, WA, Randall Bryan Printz, The Landerholm Firm, Michael C. Simon, Brian K. Gerst, Landerholm, Memovich, Lansverk & Whitesi, James Denver Howsley, Miller Nash LLP, Vancouver, WA, Daniel H. Kearns, Reeve Kearns PC, Portland, OR, Marc Worthy, Office of the Attorney General, Seattle, WA, for Respondent Intervenors.Christopher R. Sundstrom, Spencer Sundstrom PLLC, Vancouver, WA, Roger Dyer Knapp, Attorney at Law, Camas, WA, for other interested parties.QUINN–BRINTNALL, J.

[161 Wash.App. 213] ¶ 1 In 2004, Clark County (County) designated the 19 land parcels at issue in this case as agricultural lands of long-term commercial significance (ALLTCS).¹ Despite identifying these parcels as having long-term commercial significance for the agricultural industry in the County, less than three years later, in 2007, the County removed the 19 parcels from ALLTCS status. Simultaneously with the dedesignation, the County included the 19 parcels in its then existing urban growth [161 Wash.App. 214] areas (UGAs). Although the ALLTCS designation process and the redrawing of the UGA boundaries are separate processes,² the County blended the processes to dedesignate and incorporate the parcels into UGAs in a single proceeding.

¶ 2 John Karpinski, a private citizen and land owner in Clark County; the Clark County Natural Resources Council, a Washington nonprofit corporation; and Futurewise, a Washington nonprofit corporation (hereinafter collectively referred to as Karpinski), petitioned the Western Washington Growth Management Hearings Board (Growth Board) ³ for review of the County's 2007 dedesignation/UGA expansion decisions. Karpinski challenged the County's decisions on the grounds that (1) the parcels still qualified as ALLTCS, (2) the County improperly considered economic factors in deciding to dedesignate the agricultural parcels, and (3) the County improperly included lands not characterized by urban growth in its UGAs. While review of the County's dedesignations/UGA expansions was pending before the Growth Board, the cities of Camas and Ridgefield passed ordinances to annex all of the dedesignated land in parcel CB and part of the dedesignated land in parcels CA–1 and RB–2.

[254 P.3d 866]

¶ 3 The Growth Board affirmed the County's decisions with regards to eight of the challenged parcels: BB, LA, LC, RB–1, RC, VC, VE, and WA. But the Growth Board found that the County committed clear error in its decisions regarding the other 11 challenged parcels: BC, CA–1, CB, LB–1, LB–2, LE, RB–2, VA, VA–2, VB, and WB. As to these 11 areas, the Growth Board deemed the areas noncompliant with the GMA and the County's actions invalid.

[161 Wash.App. 215] ¶ 4 The County appealed the Growth Board's decision to the Clark County Superior Court, assigning error only to the rulings on the 11 parcels that the Growth Board found noncompliant under the GMA; Karpinski did not cross-appeal.⁴ In reviewing the Growth Board's rulings, the superior court affirmed in part, reversed in part, held some issues moot, and remanded to the Growth Board for further consideration.

¶ 5 Karpinski sought appellate review of the superior court's decision. Although Karpinski invoked our jurisdiction, because we review the Growth Board's decision, not the superior court decision affirming or reversing it, the burden to prove the propriety of the dedesignations is on the County. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wash.2d 488, 497–98, 139 P.3d 1096 (2006); King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000) (hereinafter referred to as Soccer Fields ).⁵ “ ‘We apply the standards of [the Administrative Procedures Act (APA), ch. 34.05 RCW,] directly to the record before the agency, sitting in the same position as the superior court.’ ” Soccer Fields, 142 Wash.2d at 553, 14 P.3d 133 (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998)). Under the APA, we grant relief from an agency's adjudicative order only if it fails to meet one of nine standards delineated in RCW 34.05.570(3). “The burden of demonstrating the invalidity of [an] agency action[, here the Growth Board's decision,] is on the party asserting the invalidity” of the action, here the County. RCW 34.05.570(1)(a).

¶ 6 During our preliminary review of this case, we posed several questions to all the parties relating to jurisdiction [161 Wash.App. 216] and seeking a clarification of the issues on appeal. In particular, we requested citation to authority for Camas's and Ridgefield's annexation of lands while the status of these lands (dedesignation and inclusion into their UGAs) was pending review. We also requested citation to the County's and Growth Board's authority to act on issues pending review before this court that would invariably alter the status quo and impact our analysis.

¶ 7 To review the issues that the parties have raised in this case, we must address the timing and effective date of UGA boundary amendments, the effect of County and Growth Board actions on issues pending review before this court, and the proper standard for dedesignating ALLTCS. In part one of this opinion, we address the jurisdictional questions and hold that the Growth Board had authority to enter findings for parcels CA–1, CB, and RB–2.⁶ In addition, we hold that the County had the authority to take legislative action and that the Growth Board had the authority to take agency action on issues pending before this court, but that these actions mooted issues related to parcels BC, CA–1, RB–2, and VB.

¶ 8 In the second part of this opinion, we evaluate whether the Growth Board committed a legal error and whether substantial evidence supports the Growth Board's order with regard to six specific land areas: LB–1, LB–2, LE, VA, VA–2, and WB. We reject the County's argument that the Growth Board is

[254 P.3d 867]

required to review the challenged planning decisions based only on portions of the record selected by the County and is precluded from reviewing the entire record. We affirm the Growth Board's decisions with regards to parcels LB–1, LB–2, and LE. But because the Growth Board committed an error of law with regards to parcels VA, VA–2, and WB, we remand to the Growth Board for further consideration of these parcels.

[161 Wash.App. 217] FACTS

¶ 9 In 2004, the County updated its GMA comprehensive plan.⁷ The next year, in 2005, the County began a review of its comprehensive plan culminating in the September 25, 2007 passage of Ordinance No.2007–09–13 (Ordinance). The Ordinance made many revisions to the County's comprehensive plan. Central to this appeal is the County's dedesignation of parcels of land from ALLTCS status and the simultaneous decision to add these lands to the UGA boundaries of the County's cities. The County dedesignated 19 land parcels, consisting of approximately 4,351 acres of land, and incorporated them into the UGAs of the Cities of Battle Ground, Camas, La Center, Ridgefield, Vancouver, and Washougal.

¶ 10 On November 16, 2007, Karpinski petitioned the Growth Board, challenging the County's dedesignation of the 19 parcels and their addition into the various UGAs.⁸ In general, Karpinski argued that the County erred in its decisions because (1) the parcels still qualified as ALLTCS under the test established in Lewis County, (2) the County violated, the GMA by improperly considering economic factors when it decided to dedesignate the parcels, and (3) the County improperly included lands not characterized by urban growth into its UGAs.

[161 Wash.App. 218] ¶ 11 On April 8, 2008, the Growth Board held a one-day hearing to consider Karpinski's claims.⁹ Although the Growth Board heard hours of testimony and reviewed an administrative record consisting of more than 3,000 pages, it focused its analysis on one specific County staff-produced document titled “Issue Paper # 7—Agricultural Lands.” Administrative Record (AR) at 2236. This document contains the County's analysis of the statutory and regulatory factors for determining whether land qualifies as ALLTCS, a matrix containing information applying each of the factors to each of the 19 parcels, and maps highlighting the then current land use zoning designations of the 19 parcels.¹⁰

¶ 12 In late April 2008, while the Growth Board deliberated and prepared its final order on the propriety of the County's dedesignation/UGA expansion decisions for the 19 parcels, Camas and Ridgefield passed ordinances purporting to annex parts of some of the parcels then pending review before the Growth Board. By City Ordinance No. 991, Ridgefield purported to annex part of parcel RB–2. By City Ordinance No. 2512, Camas purported to annex part of parcel CA–1. And by City Ordinance No. 2511, Camas purported

[254 P.3d 868]

to annex all of parcel CB. These annexed lands were included in Karpinski's petition for review to the Growth Board but the Growth Board had no notice of the cities' legislative annexation actions.

[161 Wash.App. 219] ¶ 13 The Growth Board entered its final order on May 14, 2008, and an amended final order on June 3, 2008.¹¹ The Growth Board's order affirmed the County's decisions on 8 of the challenged parcels, but it found clear error in its decisions on the other 11 challenged parcels. Accordingly, the Growth Board found...