                                                                                                    FILED



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                                                                                                    D     UTY



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                 DIVISION II

FUTUREWISE,


                                  Appellant,                                 No. 43643 -4 -II


          0                                                            UNPUBLISHED OPINION


GROWTH MANAGEMENT HEARINGS
BOARD, an agency of the State of
Washington; PACIFIC COUNTY; and the
CITY OF LONG BEACH;


                                  Respondent.




          MAXA, J. — Futurewise appeals from the superior court' s affirmation of the Western


Washington Growth Management Hearings Board' s order ruling that Pacific County' s 2010

updated comprehensive plan complied with                   Growth Management Act ( GMA),
                                                       the .                                    chapter




36. 70A RCW. Futurewise argues that the updated comprehensive plan violated the GMA by ( 1)

adopting new criteria for designating agricultural lands but failing to apply the new criteria to

designate     additional agricultural   lands, ( 2)   deviating from the statutory definition of "agricultural

land ",   and ( 3) improperly classifying agricultural lands as " rural agriculture" on Pacific County' s

land -
     use map. We disagree and affirm.

                                 FACTS AND LEGAL BACKGROUND


          The GMA applies to counties meeting the population criteria of RCW 36. 70A.040( 1) and

to less   populous counties   that opt   in   under   RCW 36. 70A. 040( 2). See LAWS    of   1990, 1st Ex.
No. 43643 -4 -II



Sess.,   ch.   17, § 4. Counties subject to the GMA must adopt a comprehensive plan. RCW


36. 70A. 040( 3), ( 4).   Despite not meeting the population criteria, Pacific County' s commissioners

in .1990 elected to prepare a comprehensive plan governed by the GMA.

          Under RCW 36. 70A. 170( 1)(       a), a comprehensive plan must      designate. " [a] gricultural.


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."   In 1997, Pacific County

adopted Ordinance No. 147, declaring that its only agricultural products with long -
                                                                                   term

commercial significance were aquaculture, cranberries, and other bog -
                                                                     related products. Pacific

County incorporated this declaration into the comprehensive plan it adopted in 1998. That plan

defined " `    agricultural land of long -term significance' to include all land that is devoted to the

                                            or other
production of aquaculture, cranberries, and /                bog   related crops."   Administrative Record


 AR) at 13 8 7.


          The GMA further requires counties periodically to review and, if needed, to revise their

comprehensive plans. RCW 36. 70A. 130. Pacific County adopted an updated comprehensive

plan in 2010. The updated 2010 comprehensive plan contained several amendments to, the


section on agricultural     lands.   The updated plan also added new maps.


          Futurewise petitioned the Western Washington Growth Management Hearings Board


 Board) to review Pacific County' s 2010 updated comprehensive plan, seeking a declaration that

the updated plan violated the GMA and therefore was invalid. The Board granted Futurewise' s


petition in part but rejected its challenge to the updated plan' s agricultural lands section.




                                                         2
No. 43643 -4 -II



Futurewise filed a petition for judicial review of the Board' s order. The superior court affirmed

                                                     1
the Board'      s order.    Futurewise    appeals.



                                                         ANALYSIS


A.       STANDARDS OF REVIEW


          1.      Administrative Procedure Act Standards


         The Administrative Procedure Act (APA), chapter 34. 05 RCW, governs our review of the


Board' s order. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d

224, 233, 110 P. 3d 1132 ( 2005).           We sit in the same position as the superior court and apply the

APA standards directly to the record before the agency. City ofRedmond v. Cent. Puget Sound-

Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P. 2d 1091 ( 1998). In other words, we


review the Board' s order, not the superior court' s decision. King County v. Cent. Puget Sound

Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P. 3d 133 ( 2000).                    The party asserting the

invalidity of an administrative order bears the burden of showing that the order is invalid. RCW

34. 05. 570( 1)(    a);   King County, 142 Wn.2d at 552.

         RCW 34. 05. 570( 3) sets out nine grounds for invalidating an administrative order. King

County,        142 Wn.2d     at   553. Futurewise asserts two. First, Futurewise argues that the Board


erroneously interpreted            or applied   the law. RCW 34. 05. 570( 3)( d).   We review the Board' s legal


conclusions        de   novo.
                                  King County,    142 Wn.2d   at   553. The Board' s interpretation of the GMA


deserves substantial weight, but it is not binding on the courts. Thurston County v. W. Wash.

Growth Mgmt. Hearings Bd., 164 Wn.2d 329, 341, 190 P. 3d 38 ( 2008).




1
    The Board has declined to participate in this appeal. -


                                                              91
No. 43643 -4 -II



          Second, Futurewise argues that substantial evidence does not support the Board' s order.


RCW 34. 05. 570( 3)(        e).   Such a challenge presents us with a mixed question of law and fact. City

ofArlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 164 Wn.2d 768, 779 -80, 193.

P. 3d 1077 ( 2008).         In reviewing that question, we determine the law independently and apply it

to the facts found         by   the Board.   City   ofArlington, 164 Wn. 2d    at   779 -80. We review challenged


findings of fact for substantial evidence: evidence sufficient to persuade a fair -
                                                                                  minded person of

                                             2
the   finding' s   truth   or correctness.       City ofRedmond, 136 Wn.2d at 46.

          2.       Growth Management Act Standards


          When a party challenges a comprehensive plan' s compliance with the GMA, the Board

must find compliance unless the challenged portion is clearly erroneous in view of the entire

record and the GMA' s goals and requirements. Lewis County v. W. Wash. Growth Mgmt.

Hearings Bd., 157 Wn.2d 488, 497, 139 P. 3d 1096 ( 2006).                   The challenged portion is clearly

erroneous if the Board has a firm and definite conviction that a mistake occurred. Lewis County,

157 Wn.2d at 497.


          Significantly, the statutory requirement for counties to update their comprehensive plans

does   not create an " ` open season' "           for all challenges to the entire comprehensive plan.


Thurston       County,     164 Wn.2d    at   344 .(internal   quotation marks omitted) (   quoting Gold Star

Resorts, Inc.      v.   Futurewise, 140 Wn.         App.   378, 390, 166 P. 3d 748 ( 2007),   aff'd in part and rev' d

in   part on other grounds,          167 Wn.2d 723, 726, 222 P. 3d 791 ( 2009)).         A party may challenge

any amendments made in an updated comprehensive plan. Thurston County, 164 Wn.2d at 347.

But a party may not challenge a county' s failure to revise a comprehensive plan unless its


2 Futurewise does not challenge any specific facts found by the Board; instead it assigns error to
any findings of fact contained in the Board' s decision.

                                                                rd
No. 43643 -4 -II



provisions have been directly affected by newly adopted or recently amended GMA

requirements. Thurston County, 164 Wn.2d at 344.

       The Board determined that the legislature did not amend the GMA in any way between

1997 and 2010 that would affect Pacific County' s designation of agricultural land. Futurewise

does not challenge this determination. Accordingly, Futurewise can challenge only the portions

of the comprehensive plan that Pacific County amended in 2010.

B..    THE UPDATED PLAN DID NOT ADOPT NEW DESIGNATION CRITERIA


       Futurewise first argues that Pacific County' s 2010 updated comprehensive plan' adopted

new criteria for designating agricultural land but then failed to update its designations of

agricultural lands using the new criteria. The Board determined that the updated comprehensive

plan did not adopt new criteria for designating agricultural lands. We agree with the Board and

reject Futurewise' s argument.


        Futurewise focuses on two additions to the first portion of section 3. 5. 2. The first


addition quoted      RCW 36. 70A. 030( 2)'   s   definition   of "[a] gricultural   land." The second addition


stated a three -part definition of agricultural land from WAC 365- 190 -050( 3) including a

nonexclusive list of factors for determining whether land has long -
                                                                   term commercial significance

for agriculture. This first portion of section 3. 5. 2 reads as follows ( showing deletions and with

additions underscored):



        3. 5. 2     IDENTIFYING AND CLASSIFYING AGRICULTURE LANDS
        Section 4-6- 17 of the GMA (RCW 36. 70A4-68. 170) requires counties to identify
        agricultural lands of long - erm commercial significance. in addition, the GMA
                                   t

        De    ele      i# ( CTED)   to     evide guidelines
                                         pr-                    to   eounties   for-ho   i
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        designate s , eh reseuree lands          RCW 36. 70A.030( 2) defines agricultural land as
         land primarily devoted to the commercial production of horticultural,
        viticultural, floricultural, dairy, gpiary, vegetable, or animal products or of berries,
        grain hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed

                                                          5
No. 43643 -4 -II



       by RCW 84.3 3. 100 through 84. 33. 140, finfish in upland hatcheries, or livestock,
       and that has long -
                         term commercial significance for agricultural production."
              WAC 365- 190 -050 identifies a three part test for designating agricultural
       land of long -
                    term commercial significance. First, the land is not already
       characterized by urban growth. Second, the land is used or capable of being used
       for agricultural production. This factor evaluates whether lands are well suited to
       agricultural uses based primarily on their physical and geographic characteristics.
       Third the land has long -term commercial significance for agriculture based on
       several applicable criteria including the following:
                Classification of prime and unique soils as mapped by the Natural
                Resources Conservation Services;

                Availability of public facilities, including roads;
                                                              oads;
                Tax status,
                Availability of public services;
                Relationship or proximity to urban growth areas and to markets and
                suppliers;

                Predominant parcel size;
                Land use settlement patterns and their compatibility with agricultural
                practices;

                Intensity of nearby land uses;
                History of land development permits issued nearby and
                Land values under alternative uses.


Compare AR at 166 -67 ( 2010 plan) with AR at 1387 -88 ( 1998 plan).


        WAC 365- 190 -050' s test for designating agricultural land of long -
                                                                            term commercial

significance apparently derives from Lewis County. In that case, our Supreme Court used a

three -part test to define " agricultural land" as land that ( 1) is not already characterized by urban

growth, (2) is primarily devoted to or capable of being used for the commercial production of

agricultural products   listed in RCW 36. 70A. 030( 2),        and ( 3) has long -
                                                                                 term commercial

significance for agricultural production. Lewis County, 157 Wn.2d at 502. The court further

approved   WAC 365- 190 -050'    s nonexclusive    list   of   factors to determine   whether   land has   long-
No. 43643 -4 -II


                                                                         3
term    commercial significance         for   agricultural production.       Lewis County, 157 Wn.2d at 501 -02.

          Futurewise asserts that by including RCW 36. 70A.030( 2)' s definition of agricultural land

and WAC 365- 190 -050' s three -part test and factors, the 2010 updated comprehensive plan


adopted new criteria for designating agricultural land of long - erm commercial significance.
                                                               t

This argument fails for two reasons. First, nothing in the language of the updated comprehensive

plan states that Pacific County was adopting new designation criteria for agricultural land of

long -
     term commercial significance. A fair reading of section 3. 5. 2 is that Pacific County merely

was identifying the relevant statutory and regulatory provisions pertaining to such agricultural

land.


          Second, WAC 365- 190 -050' s three -part test already governed the designation of

agricultural land of long -term commercial significance before Pacific County included the three-

part test in its updated comprehensive plan. This portion of the regulation became effective on


February 19, 2010, before Pacific County adopted its updated comprehensive plan on October

26, 2010. Wash. St.        Reg. 10 -03 -085. Further, as noted above, this three -part test derives from

Lewis    County,    a   2006   case.   157 Wn.2d of 502. These criteria already existed at the time Pacific

County updated the comprehensive plan. Regardless of whether the updated comprehensive plan

included a reference to WAC 365- 190 -050, Pacific County would have had to follow the its

three -part test and Lewis County if it decided to reclassify agricultural land of long -
                                                                                        term




3
 After Lewis County, WAC 365- 190 -050 was amended twice in 2010. The first amendment
adopted language very similar to Lewis County' s three -part definition of agricultural land.
Wash. St.    Reg.   10 -03 -085 ( Feb. 19, 2010). The        second amendment        distinguished "[ r] elationship
orproximity to urban growth areas" and "[ p] roximity to markets" as separate                  factors. Wash. St.
Reg. 10 -22 -103 ( Dec. 3, 2010). These amendments do not alter our analysis.

                                                             7
No. 43643 -4 -II



commercial significance. Accordingly, the revisions to section 3. 5. 2 did not adopt new criteria

for the designation of agricultural lands of long - erm commercial significance.
                                                  t

         We hold that Pacific County' s references to RCW 36. 70A.030(2)' s definition of

 agricultural land" and WAC 365- 190 -050' s three -part test and factors in the 2010 updated


comprehensive plan did not adopt new criteria for designating agricultural land of long -term

commercial significance. Accordingly, we affirm the Board' s decision on this issue

C.       THE UPDATED PLAN DID NOT DEVIATE FROM THE STATUTORY DEFINITION


         Futurewise next argues that section 3. 5. 2 of Pacific County' s 2010 updated

comprehensive plan violated the GMA by deviating from the statutory definition of "agricultural

land" as stated in Lewis County. The Board determined that Futurewise failed to demonstrate

that the language of section 3. 5. 2 violated the GMA. We agree with the Board and reject

Futurewise' s argument.


         In defining agricultural land, the GMA refers to land devoted to several categories of

agricultural products.          RCW 36. 70A. 030( 2) defines "[ a] gricultural 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.

The 2010 updated comprehensive plan quotes this definition verbatim. But Futurewise claims


that other portions of the updated plan are inconsistent with RCW 36. 70A. 030( 2) because they

differ from the text       of   Lewis      County,   157 Wn.2d    at   502. We disagree because the updated plan


correctly stated the statutory definition of "agricultural land."

          Initially, Futurewise argues that the second part of the WAC 365- 190 -050 three -part test

stated   in   section   3. 5. 2 is   not   identical to the   second part of   Lewis   County'   s   definition   of
No. 43643 -4 -II



 agricultural    land." WAC 365- 190 -050         states, "   Second, the land is used or capable of being

used   for   agricultural production."      The court in Lewis County stated the second part as land " that

is primarily devoted to the commercial production of agricultural products enumerated in RCW

36. 70A. 030( 2)."    157 Wn.2d      at   502 ( emphasis   added).   Futurewise points out that the phrase


 enumerated      in RCW 36. 70A. 030( 2)" was omitted from section 3. 5. 2.


         However, nothing in the GMA requires counties to use any mandatory language in order

to comply with act requirements. See RCW 36. 70A.3201 ( referencing the " broad range of

discretion that may be exercised by counties and cities consistent with the requirements of [the

GMA] ");      Viking Props., Inc.    v.   Holm, 155 Wn.2d 112, 125 -26, 118 P. 3d 322 ( 2005) (    interpreting

the GMA "with the requisite flexibility to allow local governments to accommodate local

needs ").    The only issue is whether the language used satisfies the statutory requirement to

identify agricultural land of long -term commercial significance. See RCW 36.70A. 170( 1)( a).

Pacific County' s 2010 updated comprehensive plan does identify such agricultural land. In any

event, Futurewise' s argument fails because the updated comprehensive plan not only referred to

the   products enumerated     in RCW 36. 70A. 030( 2), but also quoted the statute verbatim.


         Futurewise also emphasizes that the second part of section 3. 5. 2 states that agricultural


land in Pacific County is " devoted to the production of aquaculture, cranberries, and /or other bog

related crops,"      again without   listing   every   product enumerated    in RCW 36. 70A. 030( 2). AR at


167. But " agricultural lands" must, by definition, have long - erm commercial significance for
                                                              t

agricultural production.      RCW 36. 70A. 030( 2);        Lewis County, 157 Wn.2d at 502. Pacific County

determined in 1997 that aquaculture, cranberries, and other bog -
                                                                related crops were its only




                                                              9
No. 43643 -4 -II



agricultural products of        long -term    commercial significance.         4 Pacific County did not amend this

determination in the updated plan. Accordingly, Futurewise cannot challenge this portion of

section   3. 5. 2.   Thurston County, 164 Wn.2d at 344 -45.

          Finally, Futurewise notes that the last paragraph of section 3. 5. 2 of the 2010 updated

comprehensive plan fails to mention that agricultural land cannot already be characterized by

urban growth and        to   state   RCW 36. 70A. 030( 1 0)'      s   definition   of " `[  1] ong -
                                                                                                   term commercial

significance.' "      Br. of Appellant at 27. But these omissions also occurred in the 1998


comprehensive plan; and Pacific County did not amend these provisions in the 2010 updated

plan. Accordingly, Futurewise cannot challenge Pacific County' s failure to revise the

comprehensive plan to include the omitted statements. See Thurston County, 164 Wn.2d at 344-

45.


          We hold that Futurewise cannot show any deficiency in the language of the second part

of the WAC 365- 190 -050 test referenced in section 3. 5. 2 of Pacific County' s 2010 updated

comprehensive plan and that it cannot challenge Pacific County' s failure to amend other portions

of section 3.5. 2. Accordingly, we affirm the Board' s decision on this issue.




4
    Pacific   County   Ordinance No. 147 ( effective April 11, 1997)                    specified, "   Agricultural land of

long -
     term commercial significance includes all land that is devoted to the production of .
                              or other bog related crops." AR at 767. Seeking to revisit this .
aquaculture, cranberries, and /

categorization, Futurewise claims that " neither the County nor the Board cite to any evidence
that the ...    1997 decision is        still relevant."   Br.   of   Appellant    at   25.. But Futurewise bears the
burden    of           invalidity of the Board' s order. RCW 34. 05. 570( 1)( a); King County, 142
               showing the
Wn.2d at 552. 1t has failed to meet this burden. Further, the decisions Pacific County made
when adopting its 1998 comprehensive plan cannot be relitigated in a legal challenge to the
updated comprehensive plan because the GMA has not changed. See Thurston County, 164
Wn.2d at 344 -45.
                                                                 10
No. 43643 -4 -II


D.        THE UPDATED PLAN DID NOT INCLUDE AGRICULTURAL LANDS IN ITS RURAL ELEMENT


           Futurewise further argues that Pacific County violated the GMA because the 2010

updated comprehensive plan contained new maps in which agricultural lands were labeled


    Rural Agricultural." Br. of Appellant at 28 -30. Futurewise appears to argue that this label


improperly included agricultural lands in the rural element of Pacific County' s updated

comprehensive plan. We disagree.


          A county' s comprehensive plan must " include a rural element including lands that are not

designated for     urban growth, agriculture,         forest,   or mineral resources."   RCW 36. 70A.070( 5).     A


comprehensive plan' s rural element cannot include natural resource areas such as agricultural


lands.    Thurston County, 164 Wn.2d at 357.

          Pacific County' s 2010 updated comprehensive plan contains new land use maps. These

maps     apply   a single    label, " Rural Agricultural," to show both agricultural lands and other rural

                                              5
lands that   are used   for    agriculture.       AR at 118 -23, 128 -29, 167. But contrary to Futurewise' s

argument, the maps do not include agricultural lands of long - erm commercial significance in the
                                                             t

rural element. The updated comprehensive, plan contains both a " Land Use [ and] Rural Areas


Element" (    section   2)   and a separate "     Critical Areas [ and] Resource Lands Element" ( section 3),


which    includes   a section on agricultural        lands ( section 3. 5).   AR at 41, 43 ( boldface omitted).


Because these elements remain separate, the updated comprehensive plan does not improperly

include agricultural lands of long -
                                   term commercial significance within the rural element. See

Thurston County, 164 Wn.2d at 357. We hold that Futurewise' s challenge to the new maps fails.




5
    The Board determined that the " Rural Agricultural" label includes agricultural lands of long-
term commercial significance as well as all other agricultural activities outside of urban areas.


                                                                11
No. 43643 -4 -II


E.        CONCLUSION


          The Board was bound to find that the updated comprehensive plan complied with the


GMA unless it was clearly erroneous. Lewis County, 157 Wn.2d at 497. Because the Board' s

order did not ( 1) misapply or misinterpret the law or (2) lack the support of substantial evidence,

we   do   not   invalidate its   order.   See   King County,   142 Wn.2d   at   553.   We affirm.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                               MAXA, J.
We concur:




HUNT, J.
                                           p




 MANSON, A.C. J.




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