Yakima County v. E. Wash. Growth Mgmt. Hearings Bd., Ct. of Appeals Div. III Case No. 26783-1-III (Sept. 11, 2008)

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Summary

Yakima County originally designated Jim and Charlotte Caton's property as agricultural resource lands in the County's first comprehensive plan in 1997.  In 2001, the Catons requested a portion of their property be redesignated as "rural self-sufficient." The "rural self-sufficient" designation permitted an increase of development density to one dwelling unit per five acres.  Despite the planning staff's recommendation for denial, in 2002 the Yakima County Planning Commission and Board of Commissioners approved this redesignation for 1,086 acres.

The Wenas Citizens Association (WCA) appealed the decision to the Eastern Washington Growth Management Hearings Board, who found the redesignation non-compliant with the GMA's agricultural lands criteria.  The Catons and Yakima County appealed the decision to Superior Court, who reversed the Board.  WCA appealed to the Court of Appeals (Div. III), who upheld the Superior Court and remanded the case to the Board for proper application of the burden of proof and deference to the county.  With the new instructions for applying te burden of proof, the Board again found the redesignation non-compliant.  The Catons and Yakima County again appealed to Superior Court, which again reversed the Board.  WCA appealed to the Court of Appeals.

In its decision, the Court of Appeals again upheld the Superior Court in reversing the Board.  The Court determined there was insufficient evidence to show that the County was "clearly erroneous" in redesignating the Catons' land from agricultural resource land (ARL) to "rural land self-sufficient."  In determining whether the land was appropriate for ARL designation, the Court applied the Supreme Court's test enunciated in its Lewis County decision:

[A]gricultural land is land: (a) not already characterized by urban growth (b) that is primarily devoted to the commercial production of agricultural products enumerated in RCW 36.70A.030(2), including land in areas used or capable of being used for production based on land characteristics, and (c) that has long-term commercial significance for agricultural production, as indicated by soil, growing capacity, productivity, and whether it is near population areas or vulnerable to more intense uses.

Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wn.2d 488, 502, 139 P.3d 1096 (2006).

The Court found that although the Catons' property was fully surrounding by ARL, the particular property was not primarily devoted to the commercial production of agricultural products and lacked long-term commercial significance.  The Court pointed out that the soil quality was less than prime, no irrigation water for was available, the land was sloped at upwards of 30%, and much of the land was in the federal Conservation Reserve Program.  The Board had noted this findings as well, but had found that the land was suitable for cattle grazing as this was the lands' historic use prior to its enterance into CRP.  However, the land had not been used for cattle production during the past 18 years as it was in CRP.  The Board provided no evidence that cattle production was viable and of long-term commercial significance in the future.  Finally and probably most importantly, the Court held that CRP was not an agricultural use, noting that CRP put land out of agricultural production, not into it.

The Court next considered whether the "rural self-sufficient" designation was appropriate.  The Court noted that development would be limited to one unit per five acres and agricultural production was encouraged.  Thus, the Court held that the County's redesignation was not "clearly erroneous" and reversed the Board's decision.

Commentary

The Court's decision raises three concerns for me: (1) proper application of the standard of review on appeal, (2) CRP land not being considered as ARL, and (3) the need for another land use designation in comprehensive planning.

First, it seems the Board applied the wrong standard of review.  While the Board applies the "clearly erroneous" standard as the first tribunal in determining whether a local government's action is non-compliant with the GMA (RCW 36.70A.130(3)), the Court is to apply the APA standard of review to the Board's decision, which is whether there was substantial evidence to uphold the Board's decision.  If this proper standard of review had been applied, the Board's decision may well have been upheld.

Second, the Court erroneously concluded that CRP land should not be considered as ARL.  I understand the Court's position that CRP land is not currently in agricultural production and is not of long-term commercial significance.  Farmland that is put into CRP is often the most marginally productive land in the first place and would not enter the program unless all other agricultural uses were less economically viable.  However, I believe CRP provides its own agricultural product for several reasons.  (1) While CRP land does not provide food or fiber to consumers, CRP does provide necessary ecological services to society.  The farmer cultivates his land for native habitat.  (2) CRP takes land out of other agricultural production in order to support commodity prices for farmers.  (3) One of the stated purposes of CRP is to increase the soil quality of land, thus becoming more productive once the land is put back into traditional agriculture.  (4) CRP land is of long-term commercial significance as the land must remain in the program with native vegetation for at least ten years otherwise the farmer incurs a significant penalty.  If the Court's holding on CRP remains, the state legislature should consider amending the GMA to specifically include CRP as ARL or create a new land designation (see below).

Third, the state legislature should consider creating a new land designation.  Currently, the GMA requires counties to designate their lands into four basic categories: urban growth areas (UGAs), critical areas for habitat protection of listed species, natural resource lands, and rural areas. RCW 36.70A.040, .110. Natural resource areas are further broken into three categories: agricultural, forest, and mineral. But what happens when land fails to satisfy the requirements for critical areas and natural resources lands and are unsuitable for both a rural area and UGA designation?  Well, based on the Yakima County decision by the Court of Appeals, the county can do whatever it wants.  This is a bit inappropriate considering the principle objective of the GMA is to have smart planning.  In Eastern Washington, much land is either in CRP or on steep slopes inappropriate for rural housing at one unit per five acres.  Additionally, Eastern Washington is mostly a barren landscape.  Development on the hillsides has a significant affect on the aesthetic value to local communities, depriving cities of both their identity and their potential as agri-tourism destinations.

One solution might be to reflect this problem within rural area development regulations by reading the GMA provision that requires counties to provide a "variety of rural densities" as more than mere surplusage.  If "variety" was tied to "appropriateness" based on ecological, agricultural, and aesthetic values, a solution may be at hand.  However, the Court of Appeals in Yakima County implied that one unit per five acres is okay.  One per five is the minimum allowable density for rural areas.  This is not a good sign.

So the solution that may be required is for the legislature to create a whole new land designation for these "no man's lands."