                                                                       Filed
                                                                 Washington State
                                                                 Court of Appeals
                                                                  Division Two

                                                                 August 20, 2019




  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                  DIVISION II
CLARK COUNTY,                                   No. 50847-8-II

           Petitioner/Cross Respondent,         (Consolidated)


FRIENDS OF CLARK COUNTY;
FUTUREWISE,

           Respondents/Cross Petitioners,

     and

CITY OF RIDGEFIELD; CITY OF LA
CENTER; RDGB ROYAL ESTATE FARMS
LLC; RDGK REST VIEW ESTATES LLC;
RDGM RAWHIDE ESTATES LLC, RDGF
RIVER VIEW ESTATES LLC, RDGS
REAL VIEW LLC, and 3B NORTHWEST
LLC,

                         Petitioners,

     and

CLARK COUNTY CITIZENS UNITED,
INC.,

                         Petitioners,

     v.

GROWTH MANAGEMENT HEARINGS
BOARD,

                         Respondent.
No. 50847-8-II;
Cons. 51745-1-II
 CLARK COUNTY,                                                   No. 51745-1-II

               Petitioner/Cross-Respondent,


 FRIENDS OF CLARK COUNTY;
 FUTUREWISE,

               Respondents/Cross Petitioners,

        and

 CITY OF RIDGEFIELD; CITY OF LA
 CENTER; RDGB ROYAL ESTATE FARMS
 LLC; RDGK REST VIEW ESTATES LLC;
 RDGM RAWHIDE ESTATES LLC, RDGF
 RIVER VIEW ESTATES LLC, RDGS
 REAL VIEW LLC, and 3B NORTHWEST
 LLC,

                              Petitioners,

        and

 CLARK COUNTY CITIZENS UNITED,
 INC.,

                              Petitioners,

        v.                                               PART PUBLISHED OPINION

 GROWTH MANAGEMENT HEARINGS
 BOARD,

                              Respondent.

       WORSWICK, J. — The Growth Management Act (GMA), chapter 36.70A RCW, requires

Clark County to periodically update its comprehensive land use and zoning plan. Clark County

updated its plan in 2016 (2016 Plan Update), making several changes to the County’s

comprehensive plan.



                                                2
No. 50847-8-II;
Cons. 51745-1-II
       The Friends of Clark County and Futurewise (FOCC), as well as Clark County Citizens

United (CCCU), petitioned the Growth Management Hearings Board (Board) to review the 2016

Plan Update for compliance with the GMA. The City of Ridgefield, City of La Center, 3B

Northwest LLC (3B), and five other individual LLCs1 intervened in that action.

       The Board issued its Final Decision and Order (FDO), which concluded, in part, that the

County did not comply with the GMA when it (1) dedesignated three areas of agricultural land

and designated these lands as urban growth areas (UGA), (2) dedesignated agricultural land and

designated this area as a rural industrial land bank (RILB), (3) reduced agricultural and

forestland parcel sizes, and (4) adjusted rural densities. However, the Board concluded that the

County complied with the procedural requirements of the GMA.

       The County took some efforts to come into compliance, after which the Board issued a

compliance order. The Board concluded that the County remained noncompliant regarding

dedesignating agricultural land for two UGAs and the RILB but that it had complied regarding

one UGA, the agricultural and forestland parcel sizes, and rural densities.

       The parties appeal both the FDO and the compliance order. Additionally, FOCC moves

to dismiss the County’s and 3B’s petitions for judicial review of the FDO for lack of appellate

jurisdiction because they did not properly and timely serve their petitions for judicial review.

       The County, La Center, Ridgefield, and the LLCs argue that the Board’s finding of the

County’s noncompliance regarding the County’s UGA designations are moot and that the Board

acted arbitrarily and capriciously by requiring the County to take further action regarding these


1
 RDGB Royal Estate Farms LLC, RDGK Rest View Estates LLC, RDGM Rawhide Estates
LLC, RDGF River View Estates LLC, and RDGS Real View LLC.



                                                 3
No. 50847-8-II;
Cons. 51745-1-II
UGAs. The County also argues that the Board erroneously interpreted a rule regarding

agricultural lands and erred when it concluded that the County violated the GMA by

dedesignating agricultural lands for the RILB.

       CCCU argues that the Board erred by concluding that the County complied with the

GMA’s procedural requirements regarding public participation, an issue paper, and source

documents, and that the County complied with the GMA regarding designations of agricultural

and forestlands, population projections, and private property considerations. CCCU further

argues that the Board erred by concluding the County violated the GMA when the County

reduced parcel sizes of agricultural and forestland.

       FOCC argues that the compliance order erroneously declared issues to be moot regarding

readopted forestland and rural density provision from the County’s prior comprehensive plan.

       We grant FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review

of the FDO, for lack of appellate jurisdiction. In the published portion of our opinion, we hold

that issues regarding the annexed lands are moot. In the unpublished portion of this opinion, we

hold that the Board did not err regarding the remaining issues raised by CCCU and FOCC, and

remand to the Board for further proceedings in accordance with this opinion.

                                              FACTS

       The County adopted the 2016 Plan Update by Amended Ordinance No. 2016-06-12 on

June 28, 2016. In this update, the County dedesignated three areas of agricultural land and

designated these lands as UGAs, dedesignated an area of agricultural land and designated this

land as RILB, reduced agricultural and forestland parcel sizes, and adjusted rural densities.




                                                 4
No. 50847-8-II;
Cons. 51745-1-II
       Two of the newly designated UGAs were adjacent to the cities of La Center and

Ridgefield. Immediately following the 2016 Plan Update’s passage, La Center and Ridgefield

began the process of annexing these adjacent UGAs into their respective cities.

       FOCC and CCCU petitioned the Board regarding the 2016 Plan Update. The Board

consolidated these appeals. La Center, Ridgefield, 3B, and the LLCs intervened. Prior to the

Board’s decision, La Center passed an ordinance annexing its adjacent UGA, effective on

August 29, 2016. Ridgefield passed an ordinance annexing its adjacent UGA, effective on

October 14, 2016.

       The Board issued its FDO on March 23, 2017. The Board determined some provisions

invalid and found other provisions noncompliant. 2 The Board concluded, in part, that the

County did not comply with the GMA when it (1) dedesignated agricultural land and designated

the UGAs, (2) dedesignated agricultural land and designated the RILB, (3) reduced agricultural

and forestland parcel sizes, and (4) adjusted rural densities. Further, the Board made

determinations of invalidity regarding the County’s UGA designations. The Board remanded the

2016 Plan Update to the County for the County to come into compliance with the GMA.

       The County, Ridgefield, La Center, the LLCs, and CCCU filed petitions for review of the

Board’s FDO in superior court. Those petitions were consolidated by stipulation of the parties.

FOCC sought direct review of the Board’s FDO, and we granted review.

       After the Board remanded the 2016 Plan Update, and while appeal of the FDO was

pending, the County adopted new amendments to its comprehensive plan that returned the parcel


2
 The Board did not make separate findings of fact and conclusions of law for each issue it
addressed. Rather, the Board conducted its analysis, citing evidence, and then usually stated,
“The Board finds and concludes . . . .” See, e.g.¸ AR at 10499.


                                                5
No. 50847-8-II;
Cons. 51745-1-II
sizes and rural densities to their previous designations before the 2016 Plan Update amendments.

The County also reversed one UGA designation during this period; however, the County did not

take remedial action regarding the UGAs annexed by Ridgefield and La Center, arguing that it

could not change the designation of land no longer within its control.

        The Board issued a compliance order on January 10, 2018, concluding that the parcel

sizes and rural density issues were moot and compliant because the County had adopted

previously GMA-compliant provisions. The Board also concluded that the County was not in

compliance regarding the UGAs annexed by La Center and Ridgefield.

        Subsequently, Ridgefield, La Center, the County, the LLCs, 3B, and FOCC sought direct

review of the Board’s compliance order and consolidation with the review of the FDO. We

accepted direct review of the compliance order and consolidated the appeals.

                                            ANALYSIS

                                      I. MOTION TO DISMISS

        As an initial matter, we address FOCC’s motion to dismiss the County’s and 3B’s

petitions for judicial review of the Board’s FDO. FOCC argues that this court lacks subject

matter, or appellate, jurisdiction because the County and 3B failed to timely serve the Board with

their respective petitions for judicial review as required by RCW 34.05.542, due to their failure

to deliver their petitions for judicial review to the Board within 30 days. Thus, FOCC argues

that the County’s and 3B’s failure to properly serve the Board deprives us of appellate

jurisdiction.

        We hold that service of the petition for judicial review by e-mail does not satisfy the

service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW, and that



                                                 6
No. 50847-8-II;
Cons. 51745-1-II
service on the agency is complete when the petition for review is delivered to the agency. As a

result, we hold that the County’s and 3B’s petitions are untimely, and we grant FOCC’s motion

to dismiss Clark County’s and 3B’s petitions for judicial review of the FDO.

A.       Facts Pertaining to the Motion To Dismiss

         The Board issued its final decision to the parties on March 23, 2017. The deadline for

filing petitions for judicial review was April 24. The County e-mailed its petition for judicial

review to the Board and mailed its petition to both the Board and the attorney general’s office

using the United States Postal Service on April 24.3 3B sent its petition to the Board through

FedEx overnight delivery on April 24. 3B concedes that its petition was received by the Board

on April 25. The attorney general’s office filed a notice of appearance, representing the Board,

on May 11.

B.       Standard of Review

         We review de novo questions of a court’s jurisdiction. Ricketts v. Bd. of Accountancy,

111 Wn. App. 113, 116, 43 P.3d 548 (2002). A party may raise a question of appellate, or

subject matter, jurisdiction for the first time at any point in a proceeding. Skagit Surveyors &

Engineers, LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998).

         We also review the meaning of a statute de novo. Ricketts, 111 Wn. App. at 116. Our

fundamental objective in statutory interpretation is to give effect to the legislature’s intent. Dep’t

of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If a statute’s

meaning is plain on its face, then we give effect to that plain meaning as an expression of

legislative intent. Pac. Marine Ins. Co. v. State ex rel. Dep’t of Revenue, 181 Wn. App. 730,


3
    The County does not contend that the physical copy arrived on or before April 24.


                                                  7
No. 50847-8-II;
Cons. 51745-1-II
737, 329 P.3d 101 (2014). “Absent ambiguity, a statute’s meaning must be derived from the

wording of the statute itself without judicial construction or interpretation.” Fray v. Spokane

County, 134 Wn.2d 637, 649, 952 P.2d 601 (1998).

C.     Appeals From Decisions of the Board

       The APA governs appeals from decisions of the growth management hearings board.

Skagit Surveyors, 135 Wn.2d at 555. A court does not obtain jurisdiction over an appeal from an

agency decision unless the appealing party timely files and serves the petition for judicial review

on the agency and all parties. Skagit Surveyors, 135 Wn.2d at 555. A petition for judicial review

must be dismissed if the APA’s service requirements are not met. Sprint Spectrum, LP v. Dep’t

of Revenue, 156 Wn. App. 949, 961, 235 P.3d 849 (2010). “Substantial compliance with the

service requirements of the APA is not sufficient to invoke . . . appellate, or subject matter,

jurisdiction.”4 Skagit Surveyors, 135 Wn.2d at 556.

       Under the APA, a petition for judicial review of an agency order must be served on all

parties of record within 30 days after service of the final order. RCW 34.05.542(2). The APA

provides:

       “Service,” except as otherwise provided in this chapter, means posting in the
       United States mail, properly addressed, postage prepaid, or personal or electronic
       service. Service by mail is complete upon deposit in the United States mail.
       Agencies may, by rule, authorize service by electronic transmission, or by
       commercial parcel delivery company.

RCW 34.05.010(19) (emphasis added).




4
 Like here, the agency appeal in Skagit Surveyors was initially heard by the court of appeals and
not the superior court. Skagit Surveyors, 135 Wn.2d at 556 n.9.


                                                  8
No. 50847-8-II;
Cons. 51745-1-II
       But RCW 34.05.542(4) contains an exception to this definition. Ricketts, 111 Wn. App.

at 117-18; Stewart v. Dep’t of Employment Sec., 191 Wn.2d 42, 47, 419 P.3d 838 (2018). Under

that statute, the petitioner must serve the agency that issued the order by delivery to the director’s

office, the agency’s principal office, or by serving the agency’s attorney of record. RCW

34.05.542(4); Stewart, 191 Wn.2d at 47.

       Service on the agency requires delivering the petition for judicial review to the agency

within 30 days of the final order. RCW 34.05.542 (2), (3), (4). Here, the Board issued its final

decision to the parties on March 23. Thirty days from March 23 was April 22, which was a

Saturday. Therefore, the petition for judicial review was due April 24, the next business day.

       1.      The County’s Petition Was Untimely Served

       In response to FOCC’s motion, the County argues that its petition for judicial review was

timely served because it e-mailed the petition to the Board. The County does not argue that it

timely served the Board by mailing the petition on April 24, but instead states that FOCC’s

challenge is “limited to the question of whether email service on an agency satisfies delivery

pursuant to RCW 34.05.542(4).” Reply Br. of Clark County at 13. The County argues that

service by e-mail satisfies the “delivery” requirement of RCW 34.05.542(4) because the Board

has authorized service by electronic transmission in WAC 242-03-240(1). We hold that service

by e-mail is insufficient to satisfy the requirements of RCW 34.05.542(4).

       The Board is allowed to authorize service by electronic transmission. RCW

34.05.010(19). But it has not done so. The County relies on WAC 242-03-240. WAC 242-03-

240 is titled, “Filing and service of all other papers,” and provides that parties shall electronically

file pleadings and briefs to the board, and electronically complete service to other parties. But



                                                  9
No. 50847-8-II;
Cons. 51745-1-II
this rule is not applicable to appeals from the board’s decision. WAC 242-03-240, and Title 242

of the Washington Administrative Code generally addresses practices and procedures for matters

in front of the growth management hearings board. WAC 242-03-035. Appeals from the

Board’s final decision are governed by RCW 34.05.514 and RCW 34.05.542. RCW

36.70A.300; WAC 242-03-970.

       Moreover, WAC 242-03-240 does not authorize service of any type of petition for

judicial review by e-mail. WAC 242-03-240 refers to the “[f]iling and service of all other

papers,” meaning other than a petition for review to the Board. WAC 242-03-230 specifically

addresses filing and service of the petition for review for cases appealed to the Board. Thus, the

“all other papers” referred to in WAC 242-03-240 describes all papers except a petition for

review. And the only petition for review addressed in WAC 240-03-230 is a petition filed at the

board, not a petition for judicial review filed in superior court after the Board has made its

decision.

       Here, the County was required to serve the agency by “delivering” the petition for

judicial review to the agency’s office by April 24.5 RCW 34.05.542(4).6 Unless authorized by



5
 The County also mailed the petition to the attorney general’s office using the United States mail
on April 24. FOCC argues that mailing the petition to the attorney general does not adequately
serve the Board because the attorney general had not appeared as the Board’s attorney of record
until May 11. The County does not argue that mailing the petition constitutes service on the
Board, thus, we do not address this issue.
6
  “Service of the petition on the agency shall be by delivery of a copy of the petition to the office
of the director, or other chief administrative officer or chairperson of the agency, at the principal
office of the agency. Service of a copy by mail upon the other parties of record and the office of
the attorney general shall be deemed complete upon deposit in the United States mail, as
evidenced by the postmark.” RCW 34.05.542(4).



                                                 10
No. 50847-8-II;
Cons. 51745-1-II
the agency, electronic transmission, such as e-mail, is not a proper form of service. RCW

34.05.010(19). Although service on other parties of record is complete when the petition is

deposited in the United States mail, service on the agency is complete only when it is “delivered”

to the Board. RCW 34.05.542(4).

       Here, the Board did not authorize service by electronic transmission. Because e-mail is

not an authorized form of service, the County did not deliver its petition for review to the

Board’s office by April 24, 2017. The County did not timely serve its petition for judicial

review, and we do not have appellate jurisdiction over its petition for review appealing the FDO.

We grant FOCC’s motion to dismiss the County’s petition from the Board’s FDO.7

       2.      3B’s Petition Was Untimely Served

       In response to FOCC’s motion to dismiss, 3B argues that it properly served the Board by

sending its petition for judicial review to the Board through FedEx and that its service of the

petition was complete on April 24 when it delivered its petition to FedEx. We disagree.

       As discussed above, RCW 34.05.542(4) provides an exception to the general rule that

service is complete upon deposit in the United States mail. RCW 34.05.010(19); Stewart, 191

Wn.2d at 47; Ricketts, 111 Wn. App. at 117-18. Under the exception, service on the agency is

not complete until the petition is actually delivered to the agency’s office. RCW 34.05.542(4);

see Ricketts, 111 Wn. App. at 118. Even assuming service through a commercial parcel delivery

company like FedEx was proper, 3B did not timely serve the petition because the Board did not



7
 FOCC does not argue that the County’s appeal from the Board’s compliance order was
untimely. Accordingly, we consider the County’s arguments regarding the Board’s compliance
order below.



                                                11
No. 50847-8-II;
Cons. 51745-1-II
receive the petition until April 25. Because 3B’s petition was due to the Board by April 24, 3B

did not timely serve its petition for review and we do not have appellate jurisdiction over its

petition for review appealing the FDO.8 Thus, we grant FOCC’s motion to dismiss 3B’s petition

for judicial review from the Board’s FDO.9

                           II. BOARD DECISIONS — LEGAL PRINCIPLES

       Washington’s APA governs our review of the Board’s decisions. RCW 34.05.570(3);

Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd., 186 Wn.2d 648, 666, 381 P.3d 1 (2016).

Under the APA, we review the Board’s legal conclusions de novo, but we give “substantial

weight to the Board’s interpretation of the GMA.” Whatcom County, 186 Wn.2d at 667. RCW

34.05.570(3) provides nine enumerated ways to challenge an agency action through judicial

review. The parties here challenge the Board’s actions under five statutory sections: (1) the

Board’s order is outside its statutory authority or jurisdiction; (2) the Board erroneously

interpreted or applied the law; (3) the Board engaged in unlawful procedure or decision making,

or has failed to follow proscribed procedures; (4) the Board’s actions are not support by

substantial evidence; and (5) the Board’s actions are arbitrary and capricious. RCW



8
  3B also asserts that FedEx is a proper method of service because RCW 34.05.010(19)
“acknowledges the potential for service by commercial parcel delivery company, such as
FedEx.” Reply Br. of 3B at 3 (footnote omitted). 3B is correct that agencies may, by rule,
authorize service by commercial parcel delivery company. RCW 34.05.010(19). However 3B
does not provide authority establishing that the Board authorized service of petitions for judicial
review by commercial parcel delivery company. Moreover, 3B concedes that the Board did not
receive its petition until April 25. We do not determine whether the Board authorized service by
commercial parcel delivery company because 3B’s service was untimely.
9
 In light of our holding that the dedesignation and designation of the annexed UGAs issue is
moot, our decision to grant FOCC’s motion to dismiss 3B’s appeal from the FDO has no
practical bearing on this case.


                                                 12
No. 50847-8-II;
Cons. 51745-1-II
34.05.570(3)(b)-(e), (i). Here, the party challenging the Board’s decision bears the burden of

establishing that the decision is improper. RCW 34.05.570(1)(a), (3)(d); Whatcom County, 186

Wn.2d at 667.

       On review from initial challenges and on review following a Board’s remand for

compliance, the Board determines whether a county’s plan is compliant with the GMA. RCW

36.70A.300(3). The Board must find compliance with the GMA “unless it determines that the

action by the . . . county . . . is clearly erroneous in view of the entire record before the board and

in light of the goals and requirements of [the GMA].” RCW 36.70A.320(1), (3). To find a

county’s action clearly erroneous, the Board must be “‘left with the firm and definite conviction

that a mistake has been committed.’” Whatcom County, 186 Wn.2d at 667 (internal quotation

marks omitted) (quoting King County v. Cent. Puget Sound Growth Mgmt. Bd., 142 Wn.2d 543,

561, 14 P.3d 133 (2000)).

       Counties have discretion to make many choices about accommodating growth in their

comprehensive plans and amendments. RCW 36.70A.110(2). County actions are presumed

compliant and Boards must defer to local planning decisions. Kittitas County v. E. Wash.

Growth Mgmt. Hr’gs Bd., 172 Wn.2d 144, 154-55, 256 P.3d 1193 (2011). However, we do not

afford counties deference in their interpretations of the GMA, and counties must comply with the

requirements of the GMA. Whatcom County, 186 Wn.2d at 667; King County, 142 Wn.2d at

561. Deference to a county’s planning decisions supersedes the general deference we give to the

Board under the APA. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 154

Wn.2d 224, 238, 110 P.3d 1132 (2005). It is under these guidelines that we review the

correctness of the Board’s determination regarding whether the County’s actions were clearly



                                                  13
No. 50847-8-II;
Cons. 51745-1-II
erroneous. Concerned Friends of Ferry County v. Ferry County, 191 Wn. App. 803, 813, 365

P.3d 207 (2015).

       We review the Board’s factual findings for substantial evidence. Kittitas County, 172

Wn.2d at 155. Evidence is substantial if “when viewed in light of the whole record,” RCW

34.05.570(3)(e), there is “‘a sufficient quantity of evidence to persuade a fair-minded person of

the truth or correctness’” of the finding. Kittitas County, 172 Wn.2d at 155 (quoting Thurston

County v. W. Wash. Growth Mgmt. Hr’gs Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008)). When

reviewing mixed questions of law and fact, we determine the law independently and apply the

law to the facts found by the Board. Thurston County, 164 Wn.2d at 341. We consider whether

the Board’s factual findings support its conclusions. Kittitas County v. Kittitas County Conserv.

Coal., 176 Wn. App. 38, 55 n.3, 308 P.3d 745 (2013).

       We determine whether a Board’s order is arbitrary and capricious by reviewing “whether

the order represents ‘willful and unreasoning action, taken without regard to or consideration of

the facts and circumstances surrounding the action.’” Kittitas County, 172 Wn.2d at 155

(internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth

Mgmt. Hr’gs Bd., 136 Wn.2d 38, 46-47, 959 P.2d 1091 (1998)). “Issues not raised before [the

Board] may not be raised on appeal.” RCW 34.05.554(1). An exception exists if “[t]he interests

of justice would be served by resolution of an issue arising from . . . [a]gency action occurring

after the person exhausted the last feasible opportunity for seeking relief from the agency.”

RCW 34.05.554(1)(d)(ii).

       We conduct statutory interpretation to determine and give effect to legislative intent.

Town of Woodway v. Snohomish County, 180 Wn.2d 165, 173, 322 P.3d 1219 (2014).



                                                14
No. 50847-8-II;
Cons. 51745-1-II
Legislative intent is primarily deprived from statutory language. Town of Woodway, 180 Wn.2d

at 173-74. When the statutory language is unambiguous, we apply the plain meaning of the

statute. Town of Woodway, 180 Wn.2d at 174. In the absence of legislative definitions, we give

statutory terms their plain and ordinary meanings as defined in the dictionary. Lockner v. Pierce

County, 190 Wn.2d 526, 537, 415 P.3d 246 (2018). When analyzing a statute’s plain language,

we consider the specific text of the relevant provision, the context of the entire statute, related

provisions, and the statutory scheme as a whole. Lowy v. PeaceHealth, 174 Wn.2d 769, 779,

280 P.3d 1078 (2012). We do not liberally construe the GMA. Woods v. Kittitas County, 162

Wn.2d 597, 614, 174 P.3d 25 (2007).

             III. MOOTNESS OF UGA DESIGNATIONS RESULTING FROM ANNEXATIONS

       La Center, Ridgefield, and the LLCs argue that the Board’s finding of the County’s

noncompliance regarding the County’s UGA designations is moot. Specifically, they argue that

the Board (1) erroneously failed to acknowledge that the County’s action regarding the UGAs

was rendered moot by the annexations and (2) arbitrarily and capriciously required the County to

take action regarding land no longer within its control. We hold that arguments regarding the

annexed lands are moot.

A.     Facts Pertaining to the Mootness of UGA Designations Resulting from Annexations

       In the County’s 2016 Plan Update, the County dedesignated areas of agricultural land

adjacent to the cities of La Center and Ridgefield and designated these lands as UGAs. Both La




                                                  15
No. 50847-8-II;
Cons. 51745-1-II
Center and Ridgefield annexed these adjacent UGAs into their respective cities long before the

Board’s hearing in February 2017.10

       The Board concluded, in part, that the County did not comply with the GMA when it

dedesignated agricultural land and designated the UGAs. Further, the Board made

determinations of invalidity regarding the County’s UGA designations. The Board remanded the

2016 Plan Update to the County for the County to come into compliance with the GMA.

       The County did not take remedial action regarding the UGAs relevant here, arguing that

it could not change the designation of the annexed land no longer within its control. The Board

concluded that the County was not in compliance regarding these UGAs.

B.     GMA Compliance Legal Principles

       The Board may review comprehensive plans and their amendments for compliance with

the GMA. RCW 36.70A.280. However, the Board lacks the authority to determine many types

of land-related disputes. Relevant here, the Board does not have authority to review cities’ land

annexations. See RCW 36.70A.280.

       The Board determines whether a county’s plan is in compliance with the GMA. RCW

36.70A.300(3). When the Board determines that a plan or its amendments are flawed, it may

enter a finding of noncompliance or a determination of invalidity. RCW 36.70A.300, .302.

When the Board finds that the plan or its amendments are noncompliant, the Board remands the

matter back to the county with instructions to comply with the GMA. RCW 36.70A.300(3)(b).


10
   Futurewise challenged the Ridgefield annexation. We affirmed the superior court’s dismissal
of the challenge. Futurewise v. City of Ridgefield, No. 50406-5-II, slip op. at 2 (Wash. Ct. App.
Jan. 29, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2050406-5-
II%20Unpublished%20Opinion.pdf.



                                                16
No. 50847-8-II;
Cons. 51745-1-II
A plan or its amendments remain valid during the remand period following the Board’s

noncompliance finding. RCW 36.70A.300(4); Town of Woodway, 180 Wn.2d at 174.

       When the Board finds that the plan or its amendments are invalid, the Board must (1) find

noncompliance and remand the plan back to the county and (2) enter a determination of

invalidity supported by findings of fact and conclusions of law. RCW 36.70A.302(1)(a), (b).

This invalidity determination must conclude that the flawed provision of the plan or its

amendments substantially interfere with the goals of the GMA. RCW 36.70A.302(1)(b). “Upon

a finding of invalidity, the underlying provision would be rendered void.” King County v. Cent.

Puget Sound Growth Mgmt. Hr’gs Bd., 138 Wn.2d 161, 181, 979 P.2d 374 (1999).

       Significantly, an updated plan is presumed to be valid upon adoption. RCW

36.70A.320(1). In addition, a finding of invalidity is “prospective in effect and does not

extinguish rights that vested under state or local law before receipt of the board’s order by the

city or county.” RCW 36.70A.302(2). A finding of invalidity does not apply to certain vested

rights, namely development permit applications. RCW 36.70A.302(2)-(3).

C.     The Board’s Final Decision Order Is Prospective

       Here, the Board made a determination of invalidity regarding the UGAs. The Board

made related findings of fact and conclusions of law that the County’s 2016 Plan Update did not

comply with the GMA and determined that the UGAs for La Center, Ridgefield, and Battle

Ground were invalid. This determination rendered the UGA provisions void. King County, 138

Wn.2d at 181.

       The parties disagree as to the retroactivity of the determination of invalidity regarding the

UGA provisions. FOCC argues that the UGA provisions are essentially “void ab initio,” or “null



                                                 17
No. 50847-8-II;
Cons. 51745-1-II
from the beginning,” and thus, we should unwind Ridgefield’s and La Center’s annexations of

the UGAs to return the lands to their prior designations and jurisdiction under the County. Br. of

FOCC at 12. Conversely, the cities and the LLCs argue that the UGAs are void beginning from

the date of the Board’s order. We hold that the Board’s order is prospective from the date of the

order.

         RCW 36.70A.302(2) plainly states that “[a] determination of invalidity is prospective in

effect.” Prospective means “concerned with or relating to the future: effective in the future.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1821 (2002). Here, the language of RCW

36.70A.302(2) is clear and unequivocal. A determination of invalidity is effective going forward

from the date of the order. A determination of invalidity cannot alter whatever occurred prior to

the Board’s rendering of its decision.

D.       The County Lacks Authority Over the Annexed UGAs

         The cities and LLCs argue that given that a determination of invalidity is prospective

only, the UGA issues are moot because the UGAs were annexed by the respective cities before

the Board’s determination of invalidity. Thus, the annexations deprived the Board and the

County of authority to act, and consequently, the determination cannot have any legal effect. We

agree.

         1.     Mootness Following Annexation Legal Principles

         An issue is moot if the court can no longer provide effective relief. SEIU Healthcare

775NW v. Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). “The central question of all

mootness problems is whether changes in the circumstances that prevailed at the beginning of




                                                 18
No. 50847-8-II;
Cons. 51745-1-II
litigation have forestalled any occasion for meaningful relief.” SEIU Healthcare 775NW, 168

Wn.2d at 602 (internal marks omitted).

       After land contiguous to a city has been designated UGA, that city may annex that

contiguous land. RCW 35.13.005, .010. Article XI, section 11 of the Washington Constitution

states, “Any county, city, town, or township may make and enforce within its limits all such local

police, sanitary, and other regulations as are not in conflict with general laws.” RCW 35.63.080

authorizes a city council, board, or commissioners to prepare, adopt, and enforce plans for the

physical development of the municipality.

       All three regions of the growth management hearings board have examined this question

and have held that after a city annexes land, that land is no longer within the county’s

jurisdiction. For example, in Panesko v. Lewis County, Lewis County expanded a UGA to

include certain rural lands. No. 08-2-0007c, 2009 WL 2981888, at *5 (W. Wash. Growth Mgmt.

Hr’gs Bd. July 27, 2009). The City of Toledo successfully annexed this UGA land four months

before the Board issued its FDO regarding Lewis County’s compliance with the GMA. Panesko,

at *1, *5-6. In reviewing Lewis County’s compliance with the GMA following a remand period,

the Board stated:

       It is unfortunate that the [UGA] was annexed in the midst of a proceeding to
       consider its designation as agricultural land of long term commercial significance.
       Nevertheless, the Board finds nothing egregious in the County’s conduct. . . . The
       Board has no jurisdiction in the realm of municipal annexations. Further, now that
       the [UGA] has been annexed by the City of Toledo, the issue of whether this
       property should be included as part of the UGA is moot.

       Conclusion: The City of Toledo having annexed the [UGA], the land is no longer
       subject to the County’s jurisdiction. The County having no ability to consider or
       alter the designation of this property as agricultural land of long term commercial
       significance, it need not take any further action in that regard.



                                                19
No. 50847-8-II;
Cons. 51745-1-II
Panesko, at *6 (footnotes omitted).

         In 1000 Friends of Washington v. Snohomish County, Snohomish County dedesignated

an area called Island Crossing as agricultural and instead designated it as UGA. No. 03-3-0019c,

2009 WL 795934, at *1 (Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Feb. 19, 2009). The

Board found these designations noncompliant with the GMA. 1000 Friends of Washington at

*1. After our Supreme Court reversed the Board’s determination, the City of Arlington annexed

the Island Crossing UGA. 1000 Friends of Washington, at *2. On remand, the Board

determined that “the sole question for the Board was whether the County had already taken steps

to adjust its future land-use map and zoning designations in the Island Crossing area.” 1000

Friends of Washington, at *2. The Board concluded, “Given that the Island Crossing area has

been annexed by the City of Arlington and is no longer within the jurisdiction of Snohomish

County, the Board concludes that a remand back to the County would be an empty act. The

‘urban’ land in question is now the City of Arlington’s to govern.” 1000 Friends of Washington,

at *3.

         In Futurewise v. Benton County, Futurewise argued that the Board should impose a

determination of invalidity regarding Benton County’s dedesignation of agricultural land that the

County redesignated as UGA near the City of Kennewick. No. 14-1-0003, 2015 WL 999266, at

*1-2 (E. Wash. Growth Mgmt. Hr’gs Bd. Jan. 15, 2015). In its FDO, the Board determined that

these designations were not compliant with the GMA but did not issue a determination of

invalidity. Futurewise, at *1. Futurewise argued that without a determination of invalidity, the

UGA “could be quickly annexed to the City of Kennewick mooting the Board’s Final Decision

and Order.” Futurewise, at *2. The Board stated that annexing the land would indeed



                                               20
No. 50847-8-II;
Cons. 51745-1-II
“effectively moot the Board’s Final Decision and Order.” Futurewise, at *3. In granting

Futurewise’s request for a determination of invalidity, the Board stated that it “heard concerns

expressed at the hearing that a landowner-initiated annexation petition action might circumvent

the GMA compliance process and render compliance actions moot. The Board notes that in the

absence of an invalidity order, petitioners have little remedy if an annexation of this property was

accomplished.” Futurewise, at *4.

       This is not the first time Clark County has created this circumstance. In 2007, Clark

County dedesignated agricultural lands and redesignated these lands as UGA, including lands

near the cities of Camas and Ridgefield. Clark County v. W. Wash. Growth Mgmt. Hearings Bd.,

161 Wn. App. 204, 214, 254 P.3d 862 (2011) vacated in part by Clark County v. W. Wash.

Growth Mgmt. Hearings Bd., 177 Wn.2d 136, 142-43, 148, 298 P.3d 704 (2013). Challengers,

including Futurewise, petitioned the Board to review the County’s compliance with the GMA.

Clark County, 161 Wn. App. at 214. Before the Board issued its FDO, Camas and Ridgefield

passed ordinances annexing UGA lands. Clark County, 161 Wn. App. at 214. Without notice of

the annexations, the Board determined that the County’s designations of the annexed lands were

noncompliant with the GMA and invalid. Clark County, 161 Wn. App. at 215. However, after

learning of the annexations, the Board issued an order stating that it lacked jurisdiction over the

annexed lands. Clark County, 161 Wn. App. at 220.

       We held that because the County’s comprehensive plan amendments were pending

review, the amendments were not final and parties could not act in reliance on them. Clark

County, 161 Wn. App. at 224-25. We further held that the legislature did not intend to allow a

county to evade review of their planning decisions by making a UGA designation followed by an



                                                 21
No. 50847-8-II;
Cons. 51745-1-II
immediate annexation. Clark County, 161 Wn. App. at 225. Accordingly, we held that the

annexations did not preclude the Board’s jurisdiction to review the validity of the County’s

actions regarding the annexed lands. Clark County, 161 Wn. App. at 225-26.

       Our Supreme Court vacated our decision regarding the annexed lands. Clark County,

177 Wn.2d at 148. The Supreme Court held that because the parties had not appealed issues

regarding the annexed lands and because the annexed lands had no bearing on the resolution of

claims on appeal, it was error to address issues relating to the annexed lands. Clark County, 177

Wn.2d at 148. Moreover, Justice Stephens concurred in reversing our opinion, joined by Justice

Wiggins, stating:

       I would dismiss the claims challenging the annexation as moot in the context of this
       proceeding. The claims in question originated in a petition to the [Board]
       challenging Clark County’s designation of certain lands under the [GMA]. The
       cities of Camas and Ridgefield have annexed the lands in question, and those
       annexations cannot be challenged in these proceedings. As a result, the question of
       whether the Board properly reviewed Clark County’s prior designation of the
       annexed lands is moot. Dismissal should follow. See Seguin v. Barei, 163 Wn.
       702, 703, 299 P. 655 (1931) (dismissing appeal where underlying interest in
       disputed property was dissolved in separate proceeding).

Clark County, 177 Wn.2d at 149 (Stephens, J. concurring).

       2.      Issues Regarding La Center’s and Ridgefield’s Annexed Lands Are Moot

       Issues regarding the annexed lands are moot because the Board can provide no effective

relief. The Board’s role is to determine whether the County is in compliance with the GMA.

RCW 36.70A.300(1). However, after land contiguous to a city has been designated UGA, that

city may annex that contiguous land. RCW 35.13.005, .010. Once that land has been annexed, it

is within the city’s sole jurisdiction. WASH. CONST. art. XI, § 11; RCW 35.63.080. As a result,

when La Center and Ridgefield annexed previously unincorporated land into their municipalities,



                                               22
No. 50847-8-II;
Cons. 51745-1-II
the County lost its ability to plan for that land. RCW 35.63.080; 35A.11.020. The Board cannot

compel the County to take action to come into compliance regarding land the County does not

control. Such compulsion is beyond the quasijudicial powers of the Board. See RCW

36.70A.300(1).

       FOCC compares this case to Miotke v. Spokane County, 181 Wn. App. 369, 325 P.3d 434

(2014). However, Miotke is distinguishable. In Miotke, Spokane County designated a UGA that

was not subsequently annexed. Miotke, 181 Wn. App. at 373-75. While the Board reviewed the

designation, development rights of property owners vested in the new UGA. Miotke, 181 Wn.

App. at 373. The Board found the UGA designation noncompliant with the GMA. Miotke, 181

Wn. App. at 373. In an attempt to comply, Spokane County repealed the UGA designation and

reverted the land to its prior designation. Miotke, 181 Wn. App. at 374.

       On appeal, Spokane County argued that the vested urban development rights of the

landowners in the former UGA prevented it from complying with the GMA. Miotke, 181 Wn.

App. at 379. We held that the vested rights of property owners did not relieve Spokane County

from its planning obligations under the GMA. Miotke, 181 Wn. App. at 379. Rather, it was

Spokane County’s designation of the UGA that created the opportunity for vested rights, and

Spokane County was responsible for GMA compliance in its planning decisions. Miotke, 181

Wn. App. at 379-80.

       Miotke is distinguishable because the disputed land always remained within the

jurisdiction of Spokane County’s comprehensive plan. Miotke, 181 Wn. App. at 373-75.

Because of this, the Board retained the power to determine the county’s compliance with the

GMA. Miotke, 181 Wn. App. at 379-80.



                                               23
No. 50847-8-II;
Cons. 51745-1-II
       Here, because of the prospective nature of the Board’s determination of invalidity, the

County cannot exercise authority over annexed land no longer within its control. As a result,

issues regarding the annexed lands are moot.11,12

       In this published portion of our opinion, we grant FOCC’s motion to dismiss the

County’s and 3B’s petitions for lack of appellate jurisdiction. Further, we hold that issues

regarding the annexed lands are moot. In the unpublished portion of this opinion, we hold that

the Board did not err regarding the remaining issues raised by CCCU and FOCC. We remand

back to the Board for further proceedings in accordance with this opinion.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.06.040, it is so ordered.




11
   We note that the County and cities have previously engaged in a pattern of UGA designation
followed by swift annexation. Clark County, 161 Wn. App. at 225. Moreover, at oral argument,
FOCC showed us a map of the UGA annexed by La Center. Wash. Court of Appeals oral
argument, Friends of Clark County and Futurewise v. Clark County, et al, No. 50847-8-II (July
3, 2019), at 21 min., 53 sec. (on file with court). The UGA had irregular borders that followed
specific property lines. Additionally, in its compliance order, the Board noted the County’s
repeated evasion of GMA compliance review in previous instances where cities had rapidly
annexed UGAs. Regardless of the validity of any questionable behavior, this is an issue for the
legislature.
12
  FOCC argues that the prospectivity of RCW 36.70A.302(2) is confined to only vested rights.
However, the plain language of RCW 36.70A.302(2) does not confine the prospective of a
determination of invalidity to vested rights. Further, RCW 36.70A.302 provides guidance
regarding the effects of determinations of invalidity on savings clauses, interim ordinances, as
well as property rights. We reject FOCC’s attempt to construe RCW 36.70A.302(2) more
narrowly than the language provides.



                                                24
No. 50847-8-II;
Cons. 51745-1-II
           IV. AGRICULTURAL DEDESIGNATION RESULTING FROM RILB DESIGNATION

       The County argues that the Board misinterpreted and misapplied the law, and made

decisions unsupported by substantial evidence, when it found the County’s dedesignation of

agricultural land to establish a RILB violated the GMA. The Board concluded that the County

failed to comply with the GMA by not conducting a countywide or area-wide analysis of the

economic viability of the agricultural industry of the county. The Board further determined that

the RILB site met the agricultural resource land requirements.

       The County is the only party that appeals these provisions of the FDO. As stated above,

we grant FOCC’s motion to dismiss the County’s petition for judicial review of the FDO. Thus

we do not address this argument.13

                                     V. PUBLIC PARTICIPATION

       CCCU argues14 that the Board erred by dismissing its arguments that the County violated

its public participation program when it (1) finalized Issue Paper 9, a document used to support

the 2016 Plan Update, after voting to approve the plan amendment; (2) began the amendment

process before adopting a public participation program by using reports adopted years before the



13
  Even if we were to consider this argument, our review of the record here reveals that the Board
did not err.
14
   CCCU’s approach to assigning error is challenged by other parties. CCCU acknowledges that
it does not assign error to any of the Board’s findings of fact, stating that, “the Board did
conclude most of its analyses of the various issues as the ‘Board finds and concludes . . .’ CCCU
does not believe these are findings of fact, but are legal conclusions that do not require a separate
assignment of error.” Br. of CCCU at 1-2 n.2 (citation omitted). We agree and consider
CCCU’s arguments because there are no clear findings of fact contained in the FDO regarding
the portions of the FDO that CCCU challenges.




                                                 25
No. 50847-8-II;
Cons. 51745-1-II
amendment process; (3) did not adequately respond to public comments; and (4) excluded rural

landowners from participating in the amendment process.15 We hold that Board did not err when

it dismissed CCCU’s public participation arguments.

A.     Facts Pertaining to the County’s Public Participation Efforts

       A county planning under the GMA must establish a “public participation program

identifying procedures providing for early and continuous public participation in the

development and amendment of comprehensive land use plans.” RCW 36.70A.140.

       In response to this GMA mandate, the County enacted an ordinance codifying its general

PPP for GMA actions requiring notice and public hearings for planning related actions. CLARK

COUNTY CODE 40.510.040. At the time of this litigation, the general PPP provisions were last

amended in 2007.

       In 2014, the Clark County Council passed an additional ordinance detailing its 2016 Plan

Update (Plan Update PPP). The Plan Update PPP detailed the steps the County intended to take

to ensure public participation. The Plan Update PPP facilitated public participation through the

use of public meetings and workshops, a notification system for planning meetings and events,

utilization of a “robust website” containing planning documents and schedules, and strategies for

contacting interested parties and stakeholders, neighborhood associations, and news outlets. AR

at 4593. This “robust website” provided the public access to potential plan amendments and



15
  CCCU’s briefing argues that the County violated the GMA regarding public participation, not
that the Board erred when determining that the County complied with the GMA regarding public
participation. See, e.g., Br. of CCCU at 18, 24 (“The County violated the GMA.” “The County
completely failed to respond to public comments.”) Here, CCCU has the obligation to argue
how and why the Board erred. Where applicable, we reframe CCCU’s arguments to correctly
reflect CCCU’s burden.


                                               26
No. 50847-8-II;
Cons. 51745-1-II
supporting documents, past and future meeting information, and surveys to solicit citizen

responses.

       During the 2016 Plan Update process, the County held over thirty public hearings

regarding the 2016 Plan Update. The County also held ten open houses and public meetings

throughout the county. Further, the County provided opportunity for public comment through

multiple countywide online surveys. The County communicated with its citizens in person and

through newspaper, e-mail, mail, and television. This communication included sessions with a

CCCU member actively participating in conversations with the County. The County received

more than 3,000 public responses during the 2016 Plan Update process, of which over 1,100

were from individuals or groups with interests in rural or resource lands.

       One of CCCU’s claims in its petition for review to the Board was that the County failed

to adhere to its Plan Update PPP and the public participation requirements of the GMA. The

Board dismissed all of CCCU’s public participation arguments, and concluded that the County

complied the GMA in this respect.

B.     Issue Paper 9

       CCCU argues that the County violated the GMA because Issue Paper 916 was finalized

after the 2016 Plan Update was approved. Specifically, CCCU argues that Issue Paper 9 was

completed on June 23, 2016, two days after the County adopted the 2016 Plan Update. CCCU

contends that the June 21, 2016 adoption of the 2016 Plan Update precluded public participation



16
  Issue Paper 9 is “Clark County Agricultural and Forest Land Supplemental Mapping and Data
Analysis.” AR at 6916. Issue Paper 9 updated a 2012 rural lands study based on new
information and reviewed literature regarding agricultural trends.



                                                27
No. 50847-8-II;
Cons. 51745-1-II
regarding Issue Paper 9. Because substantial evidence supports that the County did not adopt the

2016 Plan Update until June 28, 2016, we hold that the Board did not err when it dismissed these

arguments.

       We review the Board’s factual findings for substantial evidence. Kittitas County, 172

Wn.2d at 155. Evidence is substantial if a quantity of evidence is sufficient to persuade a fair-

minded person of the truth of the finding. Kittitas County, 172 Wn.2d at 155. The challenging

party has the burden of showing that the Board’s decision is unsupported by substantial

evidence. RCW 34.05.570(1)(a).

       When CCCU raised this argument below, the Board found that the County adopted the

2016 Plan Update (Amended Ordinance No. 2016-06-12) on June 28, 2016. Although the Board

located an ordinance from June 21 in the administrative record, that ordinance was never signed

into law. Rather, the record shows that the County adopted Amended Ordinance No. 2016-06-12

on June 28, 2016. The Board’s finding that the County adopted the 2016 Plan Update on June

28, 2016, after Issue Paper 9 had been finalized, is supported by substantial evidence. Further,

CCCU fails to show that the Board erred regarding the public’s opportunity to comment on Issue

Paper 9. Citizens had the opportunity to comment on Issue Paper 9 at a June 21, 2016 meeting,

and at least one citizen commented on Issue Paper 9 by e-mail. We hold that the Board did not

err in dismissing CCCU’s argument that the County violated the GMA regarding Issue Paper 9.




                                                28
No. 50847-8-II;
Cons. 51745-1-II
C.     County’s Use of Source Documents

       CCCU argues that the County violated the GMA when it began the 2016 Plan Update

process by using source documents from 2009 to 2012 to support the 2016 Plan Update.17

Specifically, CCCU argues that because these source documents precede the County’s adoption

of the Plan Update PPP in 2014, the use of the older reports violated the GMA’s public

participation requirements. We hold that the Board did not err when it dismissed these

arguments.

       As discussed above, county or city planning under the GMA must establish a public

participation program. RCW 36.70A.140. The procedures identified in the PPP must provide

for broad dissemination of proposals, opportunity for written comments, public meetings after

effective notice, open discussion, communication programs, information services, and

consideration of and response to public comments. RCW 36.70A.140. However, inexact

compliance with the established public participation program and procedures does not invalidate

a comprehensive plan “if the spirit of the program and procedures is observed.” RCW

36.70A.140.

       WAC 365-196-600 expands on the GMA’s public participation requirements, and offers

suggestions to cities and counties to best allow for public participation. Relevant here, this rule

recommends, “Whenever a provision of the comprehensive plan . . . is based on factual data, a

clear reference to its source should be made part of the adoption record.” WAC 365-196-

600(2)(a).


17
  CCCU cites the following documents: (1) Agriculture Preservation Strategies Report, (2)
Clark County Bicycle and Pedestrian Plan, (3) Aging Readiness Plan, and (4) Growing Healthier
Report.


                                                 29
No. 50847-8-II;
Cons. 51745-1-II
       The Board found that the County had not violated RCW 36.70A.140, because the County

complied with the statute by adopting the Plan Update PPP. CCCU argues that the use of older

source documents violates the GMA under RCW 36.70A.140 and the general principles that the

GMA require public participation. The County argues that the use of these underlying source

documents is based on WAC 365-196-600(2)’s citation for factual data suggestion, and that these

older source documents were publicly reviewed and considered previously.

       Although the GMA mandates that a county must make a public participation program,

CCCU does not identify, and we could not find, any GMA provision that mandates the

underlying source documents to be subject to a county’s PPP. “‘Where no authorities are cited

in support of a proposition, the court is not required to search out authorities, but may assume

that counsel, after diligent search, has found none.’” Hood Canal Sand & Gravel, LLC v.

Goldmark, 195 Wn. App. 284, 296-97, 381 P.3d 95 (2016) (quoting DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).

       Moreover, the public was provided with opportunity to comment on the source

documents when commenting on the 2016 Plan Update. We hold that the Board did not err

when dismissing CCCU’s argument regarding source documents supporting the 2016 Plan

Update.

D.     Record of and Response to Public Comments

       CCCU argues that the County “failed to respond to public comments and maintained an

incomplete public record” during and after the planning process. Br. of CCCU at 24. We hold

that the Board did not err in dismissing these arguments.




                                                30
No. 50847-8-II;
Cons. 51745-1-II
        The public participation “procedures shall provide for . . . consideration of and response

to public comments.” RCW 36.70A.140. WAC 365-196-600(8) provides further guidance. The

rule, in part, states:

        Consideration of and response to public comments. All public comments should
        be reviewed. Adequate time should be provided between the public hearing and
        the date of adoption for all or any part of the comprehensive plan to evaluate and
        respond to public comments. The county or city should provide a written summary
        of all public comments with a specific response and explanation for any subsequent
        action taken based on the public comments. This written summary should be
        included in the record of adoption for the plan.

WAC 365-196-600(8)(a).

        Although chapter 365-196 WAC provides some procedural guidelines, compliance with

these procedures “is not a prerequisite for compliance with the act.” WAC 365-196-030(2). The

Board’s compliance determination must be based on a violation of the GMA itself. WAC 365-

196-030(3). Chapter 365-196 WAC does not create a minimum list of criteria for procedural

compliance with the GMA. Rather, counties “can achieve compliance . . . by adopting other

approaches.” WAC 365-196-030(2).

        As used in chapter 365-196 WAC, “shall” means “a requirement for compliance with the

act” and has the same meaning as “must.” WAC 365-196-210(29). Conversely, “should” is “the

advice of the department, but does not indicate a requirement for compliance with the act.”

WAC 365-196-210(30).

        CCCU cites Larson Beach Neighbors v. Stevens County, No. 03-1-0003, 2004 WL

3404211, at *9 (E. Wash. Growth Mgmt. Hr’gs Bd. Feb. 10, 2004), and Loon Lake Property

Owners Ass’n v. Stevens County, No. 03-1-0006c, 2004 WL 2624883 at *5 (E. Wash. Growth

Mgmt. Hr’gs Bd. Oct. 15, 2004), for the proposition that in the GMA context, “should” conveys



                                                31
No. 50847-8-II;
Cons. 51745-1-II
a mandatory duty. CCCU misconstrues these Board decisions. Larson addresses language in a

county’s PPP that required review of all public comments but that the county “may” respond to

comments in writing or verbally. Larson, at *8. The Board concluded that the county’s PPP

created a mandatory requirement to respond with an option of how to fulfill that requirement.

Larson, at *9. Here, the County’s lack of mandatory language in its 2016 Update PPP

distinguishes Larson.

       In Loon Lake, the Board found that the county failed to respond to public comments. At

*5. After a compliance remand, a challenger wanted the Board to interpret its FDO to force the

county to reopen the record to respond to public comments. Loon Lake, at *5. The Board stated

that there was no reason to reopen to record, and that the county had created a “summary of

public comments and the County’s response thereto in accordance with the requirements of

WAC 365-195-600.” Loon Lake, at *6. Procedurally, Loon Lake addressed a Board’s remedies

during the period for remand and compliance. The Board referenced the county’s previous

actions regarding public comments to hold that the challenger did not show that reopening the

record was necessary. Loon Lake, at *6. Loon Lake is distinguishable because here, CCCU’s

arguments are based on the FDO, not the compliance order. Neither of these Board decisions

conflict with the explicit permissive language in chapter 365-196 WAC.

       The Plan Update PPP provides a variety of methods and mediums the County was to use

to provide the public with information and an opportunity to participate. The plain language of

RCW 36.70A.140 states that a county’s PPP shall provide for the response to public comment.

Although the 2016 Plan Update PPP mentions public review and response to comments, it does

not require the County to respond to all comments. Moreover, inexact compliance with the



                                               32
No. 50847-8-II;
Cons. 51745-1-II
established public participation program and procedures does not invalidate a comprehensive

plan “if the spirit of the program and procedures is observed.” RCW 36.70A.140.

       The record shows that the County considered and responded to a large number of public

comments. The County heard citizens at meetings and open houses, received e-mails, collected

responses from surveys, and held meetings with various interested parties. The GMA does not

require the County to formally consider and respond to all public comments.

       CCCU also argues that the County maintained an incomplete record of the public

comments it received during the 2016 Plan Update. Similarly, CCCU’s argument is based on the

permissive WAC 365-196-600(8)(a) rather than mandatory GMA provisions. The plain

language of RCW 36.70A.140 does not require a county to index and maintain a record with

every single comment offered during the planning process. We hold that the Board did not err

when it dismissed CCCU’s arguments that the County failed to respond to public comments and

maintained an incomplete public record during and after the planning process.

E.     County’s Use of Internet

       CCCU argues that the County’s 2016 Plan Update PPP’s reliance on internet

communication excluded rural citizens, thus violating the GMA. The Board dismissed CCCU’s

argument. We hold that the Board did not err.

       RCW 36.70A.035(1) mandates public participation requirements that are “reasonably

calculated to provide notice to property owners and other affected and interested individuals.”

RCW 36.70A.035(1) lists specific examples of “reasonable notice provisions,” including

“[p]ublishing notice in a newspaper, [n]otifying public or private groups with known interest in a




                                                33
No. 50847-8-II;
Cons. 51745-1-II
certain proposal, and [p]ublishing notice in agency newsletters or sending notice to agency

mailing lists.” In addition, WAC 365-196-600(4)-(5) states:

       (4) Each county or city should try to involve a broad cross-section of the
       community, so groups not previously involved in planning become involved.

       (5) Counties and cities should take a broad view of public participation. The act
       contains no requirements or qualifications that an individual must meet in order to
       participate in the public process. If an individual or organization chooses to
       participate, it is an interested party for purposes of public participation.

       CCCU argues that the County violated WAC 365-196-600(4)-(5) by failing to use

noninternet based communication to include rural citizens in the 2016 Plan Update process.

CCCU argues that rural citizens would be less likely to use the County’s online portal that

provided the public access to potential plan amendments and supporting documents, past and

future meeting information, and surveys to solicit citizen responses.

       In addition to the County’s plan update website, the County disseminated information to

its citizens through a number of mediums. The County communicated through e-mail, mail,

newspaper, television. CCCU fails to show how the County’s use of multiple mediums failed to

include rural citizens. We hold that the Board did not err when it dismissed CCCU’s argument

that the County’s Plan Update PPP’s reliance on internet communication excluded rural citizens.

VI. DESIGNATION OF AGRICULTURAL AND FORESTLANDS CAPABLE OF LONG TERM COMMERCIAL
                                   PRODUCTION

       CCCU argues that the County violated the GMA regarding its designation of agricultural

and forestlands capable of long term commercial production. Specifically, CCCU argues that the

County incorrectly relied on Issue Paper 9, which used “data layers” in addition to United States

Department of Agriculture Natural Resources Conservation Service (NRCS) standards. CCCU




                                                34
No. 50847-8-II;
Cons. 51745-1-II
argues that the Board’s acceptance of the County’s Issue Paper 9 was arbitrary and capricious.

We hold that Board did not err by dismissing this argument.18

       In its comprehensive plan, a county designates eligible land as agricultural or forestlands

capable of long term commercial production. RCW 36.70A.070(1). One factor counties

consider when designating lands for these purposes is soil composition. WAC 365-190-

050(3)(b)(ii). Counties are to use soil data from NRCS. WAC 365-190-050(3)(b)(ii).

       In the designation process here, the County used soil data from NRCS as well as other

data. The Board found and concluded, “The County used the NRCS layer and other data;

nothing in the WAC precludes them from using other data, as long as they use NRCS data as

well. CCCU’s claim about data layers is dismissed.” AR at 10510.

       When considering land for designation as agricultural resource land, counties consider

three factors, including the land’s capability of use for agricultural production. WAC 365-190-

050(3)(b). This includes using data from NRCS. WAC 365-190-050(3)(b)(ii) states:

       In determining whether lands are used or capable of being used for agricultural
       production, counties and cities shall use the land-capability classification system of
       [NRCS] as defined in relevant Field Office Technical Guides. These eight classes
       are incorporated by the United States Department of Agriculture into map units
       described in published soil surveys, and are based on the growing capacity,
       productivity and soil composition of the land.

18
   Preliminarily, the County argues that this issue is not before the court because the County did
not amend any part of the comprehensive plan to designate any agricultural or forest lands.
Further, the County argues that any designations of agricultural or forest lands occurred in prior
plan amendments, more than 60 days before CCCU filed its petition to the Board. In reply,
CCCU cites to a different portion of the Board’s FDO that analyzes the dedesignation of
agricultural lands to support its contention that the County made agricultural and forest land
designations. Although the County raised this argument to the Board, the Board did not address
it; instead it reached the merits of CCCU’s data layers argument. We address the merits of
CCCU’s argument in the interest of fairness.




                                                35
No. 50847-8-II;
Cons. 51745-1-II


       Here, CCCU is not arguing that the County did not use the NRCS data. Rather, CCCU

argues that the County’s use of data in addition to the NRCS data violated the GMA and the

rule.19 But the rule does not prohibit a county’s use of additional data to determine the

agricultural capability of lands; the rule merely requires counties to use the NRCS data. CCCU

acknowledges that the County indeed used the NRCS data. We hold that the Board did not err

when concluding that WAC 365-190-050(3)(b)(ii) does not preclude the use of data in addition

to the NRCS data.

       VII. REDUCING MINIMAL PARCEL SIZES FOR AGRICULTURAL AND FORESTRY LANDS

       CCCU argues that the Board erred in concluding the reduction of agricultural and

forestland parcel sizes violated the GMA. Specifically, CCCU argues that the Board applied the

incorrect legal standard. Further, CCCU argues that even if the Board applied the correct legal

standard, its decision is not supported by substantial evidence. We disagree.

       During the 2016 Plan Update, the County reduced agricultural land parcel sizes from 20

acres to 10 acres and forestry land from 40 acres to 20 acres. FOCC argued to the Board that

these parcel size reductions violated the GMA. FOCC placed multiple peer-reviewed articles in

the record. These articles conclude that the minimum parcel size necessary to conserve

agricultural and forestlands must be at least 20 to 40 acre parcels. Further, the County’s Issue



19
  CCCU references an e-mail where a County planner used the term “data layers” to argue that
the NRCS classification system did not produce the result the County wanted, so the County
used some unspecified “data layers” to come to a better result. However, CCCU does not cite to
anything in the record to support its allegation that the County was using extra data sources to
skew land designations, nor does CCCU show us how the alleged use of these “data layers” gave
a result different than NRCS data.



                                                36
No. 50847-8-II;
Cons. 51745-1-II
Paper 9 stated that very small and small farms produce little income and are mostly supported by

nonfarm income. The Board examined minimum parcel sizes in other regions of Washington

and other states to conclude that allowing 20 acre parcels in Clark County would not preserve the

agricultural industry. The Board found the County noncompliant regarding these parcel size

reductions.

       After a county designates land as agricultural or forestland, the GMA requires the

adoption of regulations to assure the conservation of these lands. RCW 36.70A.060(1)(a).

Specifically, a county shall adopt regulations “to assure the conservation of agricultural, forest,

and mineral resource lands.” RCW 36.70A.060(1)(a). These regulations shall “assure that the

use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the

continued use . . . of these designated lands for the production of food, agricultural products, or

timber.” RCW 36.70A.060(1)(a). Counties have a duty to designate and conserve these

agricultural and forestlands to assure the preservation and development of these industries. King

County, 142 Wn.2d at 558.

       CCCU argues that the Board used the “assure” language to improperly shift the burden to

the County to prove it was conserving agricultural and forestlands. Instead, CCCU argues, the

burden belonged to the challenger, FOCC, when FOCC contested the County’s GMA

compliance regarding parcel sizes.

       CCCU’s statement of the burden is correct. RCW 34.05.570(1)(a). However, the Board

did not improperly shift the burden to the County to prove the 2016 Plan Update conserved

agricultural and forestlands. Rather, the Board held that FOCC bore and met its burden of




                                                 37
No. 50847-8-II;
Cons. 51745-1-II
showing that that the reduction of parcel sizes was clearly erroneous. We hold that the Board did

not err in this regard.

        Further, CCCU argues that the Board should have deferred to the County when it reduced

the parcel sizes. Although we defer to a county for planning decisions, this deference must

remain within the bounds of the GMA. King County, 142 Wn.2d at 561. FOCC’s evidence

overcame the deference to the County.

        Alternatively, CCCU argues that the Board’s decision is not supported by substantial

evidence. CCCU bears the burden of showing that the Board’s decision is unsupported. RCW

34.05.570(1)(a). In the 2016 Plan Update, the County reduced agricultural land parcel sizes from

20 acres to 10 acres and forestry land from 40 acres to 20 acres. FOCC argued to the Board that

these parcel size reductions violated the GMA. The Board agreed and found the County

noncompliant regarding these parcel size reductions. The Board examined the County’s Issue

Paper 9 as well as articles and studies submitted by FOCC. After reviewing the articles and

Issue Paper 9, the Board found that FOCC carried its burden to prove that reducing parcel sizes

was clearly erroneous.

        We hold that there is sufficient evidence in the record to persuade a fair-minded person

that the Board did not err when concluding that of the County’s attempt to reduce agricultural

and forestland parcel sizes was clearly erroneous under the GMA. The Board relied on multiple

peer-reviewed articles to conclude that the minimum parcel size necessary to conserve

agricultural and forestlands was at least 20 to 40 acre parcels. Further, the Board relied on the

County’s Issue Paper 9 that very small and small farms produce little income and are mostly

supported by nonfarm income. The Board examined minimum parcel sizes in other regions to



                                                38
No. 50847-8-II;
Cons. 51745-1-II
conclude that reduced parcel sizes would not preserve the agricultural industry. Substantial

evidence supports the Board’s conclusion that reducing the parcel sizes for agricultural and

forestry lands was clearly erroneous and violated the GMA. We hold that the Board did not err

when it ruled that the reduction of parcel sizes was clearly erroneous.

              VIII. OFFICE OF FINANCIAL MANAGEMENT POPULATION PROJECTION

       CCCU argues that the “the County failed to plan for the likely population growth, by

choosing a metric that is historically too low, when another [Office of Financial Management

(OFM)] projection was readily available.” Br. of CCCU at 34. We hold that the Board did not

err when it dismissed this argument.

       The GMA requires counties to use population projections from the OFM for their

comprehensive plans and amendments. RCW 36.70A.110(2). For the 2016 Plan Update, the

OFM offered three population projections: high (681,135), medium (562,207), and low

(459,617). The County chose the medium population projection. In 2015 and during the update

process, OFM released its annual population and growth rate for the County, estimating the

County’s 2014 population to be approximately 451,000 and growing at a rate higher than the

2016 Plan Update projected.

       Counties are required to use twenty-year population projections from the OFM for their

growth management comprehensive plans and amendments. RCW 36.70A.110(2). The

legislature requires OFM to prepare the population projections and entrusts counties to plan

based on these OFM projections. Spokane County v. E. Wash. Growth Mgmt. Hr’gs Bd., 188

Wn. App. 467, 485, 353 P.3d 680 (2015). The OFM is required to provide counties with a high,

middle, and low population projection number for their planning processes. RCW 43.62.035.



                                                39
No. 50847-8-II;
Cons. 51745-1-II
The middle projection represents the most likely population projection. RCW 43.62.035.

Counties have discretion to make many choices about accommodating growth in their

comprehensive plans and amendments. RCW 36.70A.110(2). Separately, the OFM is also

required to provide counties with their annual population numbers and their growth rates for the

preceding ten years. RCW 43.62.035.

       Here, CCCU does not articulate specifically how it is challenging the Board’s decision.

Assuming that CCCU is arguing the Board erred in approving the County’s selection because the

middle projection was clearly erroneous, we disagree. The OFM offered three population

projections: high (681,135), medium (562,207), and low (459,617). The County chose the

medium population projection. Choosing any of the three offered OFM population projections

was within the County’s discretion under RCW 36.70A.110(2). See Spokane County, 188 Wn.

App. at 485. As a result, the Board did not err when it concluded that the County did not violate

the GMA when choosing a population projection.

       Additionally, CCCU argues that the County failed to revise population projections when

the OFM updated the County’s annual population number in 2015. However, the annual

population number is separate from the OFM’s required twenty-year growth management

projections. RCW 43.62.035. Because the County used the required population projections in

its 2016 Plan Update, we hold that the Board did not err regarding the OFM population

projections.




                                               40
No. 50847-8-II;
Cons. 51745-1-II
                                IX. RURAL GROWTH PROJECTIONS

       CCCU argues that the County violated the GMA by using arbitrary and capricious

population projections that impermissibly capped rural growth. The Board dismissed CCCU’s

arguments. We hold that the Board did not err.

       To plan for rural growth in the 2016 Plan Update, the County made planning assumptions

derived from a rural vacant buildable lands model. CCCU argued that this model “capped” rural

growth or, stated another way, planned in a way that limited growth in rural lands. AR at 10515.

The Board held that nothing prevented the County from using urban models to project rural

growth.

       RCW 36.70A.110(2) states, in part, “Based upon the growth management population

projection made for the county by the office of financial management, the county . . . shall

include areas and densities sufficient to permit the urban growth that is projected to occur in the

county or city for the succeeding twenty-year period.” (Emphasis added.)

       CCCU cites extensively to Clark County Citizens United, Inc. v. Clark County Natural

Resource Council, 94 Wn. App. 670, 972 P.2d 941 (1999) for the proposition that the GMA

prohibits the use of population projection techniques developed for urban areas in rural areas.

That case did not so hold. In Clark County Citizens United, we considered whether a county

must use OFM’s population projections as a cap on rural growth. 94 Wn. App. at 675. We held

that, “nothing in the GMA provides that a county must use OFM’s population projections as a

cap or ceiling when planning for non-urban growth.” Clark County Citizens United, 94 Wn.

App. at 676. We noted, “Without so holding, we assume that the GMA permits a county to use

OFM’s population projections when planning for lands outside its urban growth areas. That



                                                 41
No. 50847-8-II;
Cons. 51745-1-II
question is not presented by this appeal.” Clark County Citizens United, 94 Wn. App. at 676

n.23.

        CCCU argues that “it has been decisively settled that the use of population projections

developed for urban area planning cannot lawfully be employed to project or plan for rural

growth.” Br. of CCCU at 37. As shown above, CCCU is incorrect.

        In fact, CCCU does not identify any authority that prevents the use of OFM population

projections for rural growth. Further, RCW 36.70A.110(2) regulates urban population

projections, not rural. We hold that CCCU fails to show how the Board erred when determining

that the County did not violate the GMA regarding its rural growth projections.

        For the first time in its reply brief, CCCU contests the County’s actions under RCW

36.70A.115. RCW 36.70A.115 requires counties to ensure there is sufficient land capacity for

development. However, CCCU neither raised this issue to the Board nor in its opening brief.

Because we do not address issues not raised to the Board, RCW 34.05.554(1), we decline to

address this argument.

                X. RURAL POPULATION DISTRIBUTION AND GROWTH PROJECTION

        CCCU argues that the Board erred when it dismissed CCCU’s argument that the County

violated the GMA when it failed to define rural character and also when it used a 90 percent

urban, 10 percent rural population projection for the 2016 Plan Update. Specifically, CCCU

argues that the County failed to define “rural character” in the 2016 Plan Update and that

because the County did not define “rural character” it cannot justify the 90/10 population

distribution. Br. of CCCU at 43. Below, the Board dismissed CCCU’s argument. We hold that

the Board did not err.



                                                42
No. 50847-8-II;
Cons. 51745-1-II
       Counties should adopt a definition of rural character. WAC 365-196-425(2)(c). The

2016 Plan Update states:

       In Clark County, the rural area represents a lifestyle based on historical
       development patterns and resource-based industries such as commercial forestry,
       Christmas trees, dairies, berry farming, orchards and mining. Today much of the
       county’s rural lands include a mix of resource, small commercial, recreational and
       residential uses.

       No single attribute describes the rural landscape. Instead combinations of
       characteristics which are found in rural settings impart the sense of what we
       commonly describe as rural. These factors are cumulative in nature and the more
       of these factors that are present influence feelings of whether a particular area is
       rural. In many cases these characteristics are subjective and frequently not all of
       them are found in each area. When describing rural conditions the public will often
       describe these areas in terms of a certain lifestyle. The factors listed below are
       those that usually describe “rural character.”

             the presence of large lots;
             limited public services present (water, sewer, police, fire, roads, etc.);
             different expectations of levels of services provided;
             small scale resource activity;
             undeveloped nature of the landscape;
             wildlife and natural conditions predominate;
             closer relationship between nature and residents;
             personal open space;
             a sense of separation from intense human activity;
             a sense of self sufficiency; and
             rural commercial supporting rural area population.

AR at 1411. The County also adopted a 90/10 urban to rural population distribution. The Board

dismissed CCCU’s arguments noting that the requirements of chapter 265-196 WAC are

permissive and that the County has broad discretion to meet the GMA goals of encouraging

development in urban areas and reducing sprawl.

       Counties have broad discretion in how they plan for growth. RCW 36.70A.110(2).

Among other goals, counties should encourage development in urban areas and reduce sprawl.



                                                43
No. 50847-8-II;
Cons. 51745-1-II
RCW 36.70A.020(1), (2). WAC 365-196-425 states that counties should include a rural element

in their comprehensive plans. But the rule but does not mandate counties to define this term,

stating, “Counties should adopt a locally appropriate definition of rural character.” WAC 365-

196-425(2)(c) (emphasis added). Further, the counties’ “rural element should provide for a

variety of densities that are consistent with the pattern of development established in its

definition of rural character.” WAC 365-196-425(3)(a).

       Although chapter 365-196 WAC provides some procedural guidelines, compliance with

these procedures “is not a prerequisite for compliance with the act.” WAC 365-196-030(2). The

Board’s compliance determination must be based on a violation of the GMA itself. WAC 365-

196-030(3). As stated above, chapter 365-196 WAC does not create a minimum list of criteria

for procedural compliance with the GMA. Rather, counties “can achieve compliance . . . by

adopting other approaches.” WAC 365-196-030(2).

       CCCU argues that the County failed to define “rural character.” Br. of CCCU at 43.

Although not strictly required, the County generally defined “rural character” in its 2016 Plan

Update. The County detailed factors that it determined described “rural character,” including

large lots, different expectations for community services, and a sense of self-sufficiency. We

hold that the Board did not err when dismissing CCCU’s argument insofar as it is based on the

County’s failure to define rural character.

       CCCU also argues that the 90/10 population distribution did not align with the actual

86/14 population distribution in the County. CCCU argues that this “90/10 distribution does not

comply with the County’s planning obligations under WAC 365-196-425(3)(a).” Br. of CCCU

at 45. CCCU seems to argue that because the 90/10 goal distribution is not the same as the 86/14



                                                 44
No. 50847-8-II;
Cons. 51745-1-II
current population distribution, the goal distribution is not consistent with the true rural character

of the County. However, CCCU does not show how the goal distribution violates the GMA.

First, chapter 365-196 WAC does not add procedural requirements for GMA compliance. WAC

365-196-030(2)-(3). CCCU’s alleged violation of chapter 365-196 procedures alone does not

support a GMA violation. Second, the County has broad discretion to plan for growth. RCW

36.70A.110(2). Here, CCCU fails to meet its burden to show that the Board erred. We hold that

the Board did not err when dismissing CCCU’s population distribution arguments.

                         XI. GMA PRIVATE PROPERTY CONSIDERATIONS

       CCCU argues that the Board erred when it dismissed CCCU’s argument that the County

violated the GMA goal of adequately considering the impacts of the 2016 Plan Update on private

property rights. We hold that CCCU’s argument fails.

       Protection of private property rights is enumerated at goal 6 in the GMA. RCW

36.70A.020(6). In the 2016 Plan Update, the County recited this goal, stating that it gave private

property rights due consideration during the planning process. Further, the County had extensive

contacts with private property owners, stated views regarding the impacts of the 2016 Plan

Update on private property rights, and heard from landowners regarding their concerns about

private property rights. Further, as exhibited by the County’s 2016 Plan Update PPP, it heard

from citizens and considered private property rights.

       One of the GMA’s 13 enumerated goals “used exclusively for the purpose of guiding the

development of comprehensive plans” states: “Property rights. Private property shall not be

taken for public use without just compensation having been made. The property rights of




                                                 45
No. 50847-8-II;
Cons. 51745-1-II
landowners shall be protected from arbitrary and discriminatory actions.” RCW 36.70A.020(6).

WAC 365-196-725 further details:

       (1) Comprehensive plans and development regulations adopted under the act are
       subject to the supremacy principle of Article VI, United States Constitution and of
       Article XI, Section 11, Washington [S]tate Constitution.

                (2) Counties and cities planning under the act are required to use a process
       established by the state attorney general to assure that proposed regulatory or
       administrative actions do not unconstitutionally infringe upon private property
       rights. . . .

       A party may challenge land use regulations as unconstitutional regulatory takings under

article I, section 16 of the Washington Constitution. Thun v. City of Bonney Lake, 3 Wn. App.

2d 453, 459, 416 P.3d 743 (2018).

       CCCU’s argument is difficult to discern. CCCU argues broadly that the County made

determinations about property that were contrary to facts, and that the County failed to

implement the goal of protecting private property rights. However, CCCU does not explain

anything further in its argument.

       Specifically, CCCU argues, “Determining the development potential of property based on

a population projection standard that has never been accurate is in disregard of all the facts and

circumstances. Similarly, the County’s decision to reject rezoning to smaller parcel sizes in the

rural area is contrary to the actual facts and circumstances in Clark County.” Br. of CCCU at 49.

It appears that CCCU is rearguing that the population projection and the parcel sizing were

arbitrary and capricious, an argument we rejected above. Further, CCCU argues that “the Board

errs in concluding that [RCW 36.70A.020(6)] is actually implemented because there is a

recitation in the ordinance that the County has given some rights ‘due consideration.’” Br. of

CCCU at 49-50 (quoting AR at 10472).


                                                 46
No. 50847-8-II;
Cons. 51745-1-II
       RCW 34.05.570(3) provides nine enumerated ways to challenge an agency action

through judicial review. However, CCCU does not sufficiently explain to this court how it is

challenging the Board’s decision under that statute. Nor does CCCU invoke RCW

34.05.570(3)(a), which would have allowed us to review the Board’s orders for constitutional

violations. Rather, CCCU contends only that the Board acted arbitrarily and capriciously

regarding the GMA private property goal. CCCU has failed to sufficiently explain to us how the

Board erred and, thus, fails to carry its burden.

                                XII. BOARD’S COMPLIANCE ORDER

       FOCC argues that the Board erred in its compliance order when it declared issues moot

and found the County’s readoption of prior provisions was compliant with the GMA. We hold

that the Board did not err.

A.     Facts Regarding the Board’s Compliance Order

       In its FDO, the Board found some provisions noncompliant and determined other

provisions invalid. FOCC raises arguments for two County decisions the Board found

noncompliant, Issues 11 and 13.

       For Issue 11, the Board considered the County’s creation of AG-10 and FR-20 districts,

replacing AG-20 and FR-40 districts. In its FDO, the Board found and concluded that “reducing

parcel sizes for agricultural and forestry lands will not meet requirements in RCW 36.70A.060 or

.070 nor does it meet the standards established in King County.” AR at 10552. To come into

compliance, the County amended its 2016 Plan Update by passing Ordinance 2017-07-04, which

changed back the AG-10 to AG-20 and FR-20 to FR-40.




                                                    47
No. 50847-8-II;
Cons. 51745-1-II
       For Issue 13, the Board considered the County’s single rural density designation,

replacing its varied rural densities provisions. In its FDO, the Board found and concluded that

“the County did not comply with RCW 36.70A.070(5) regarding a variety of rural densities.”

AR at 10552. To come into compliance, the County adopted Ordinance 2017-07-04 which

amended the single plan designation for rural lands and reestablished the prior varied rural

densities.

       In its compliance order, the Board noted that both provisions readopted by the County

had previously been found GMA compliant. Issue 11’s parcel sizes had been determined

compliant in the County’s 2007 Comprehensive Plan. CAR at 1573 (citing Karpinski v. Clark

County, No. 07-2-0027 (W. Wash. Growth Mgmt. Hr’gs Bd. Sept. 4, 2014)). In the compliance

order, the Board stated:

       Here, Clark County repealed the ordinance amendments challenged in Issue 11, the
       Issue 11 challenge is moot, and the County’s action addressing the Issue 11
       provisions must be found compliant. With the County amendments in Ordinance
       2017-07-04 regarding agricultural and forest lands, the Board finds and concludes
       that the County is now in compliance with RCW 36.70A.060 and RCW 36.70A.070
       in regards to Issue 11.

CAR at 1574 (emphasis omitted).

       Further, the Board stated, “The challenge to Issue 13 is now moot because the County

readopted a previously GMA-compliant variety of rural densities. With the County amendments

in Ordinance 2017-07-04 for Issue 13, the Board finds the County’s action regarding a variety of

rural densities, achieves compliance with RCW 36.70A.070(5).” CAR at 1575 (emphasis

omitted).




                                                48
No. 50847-8-II;
Cons. 51745-1-II
B.     Compliance Legal Principles

       Following a remand period to address noncompliant comprehensive plan provisions, the

Board determines whether a county has achieved GMA compliance. RCW 36.70A.330(1)-(3).

Parties may challenge the legislation enacted in response to the Board’s final order. RCW

36.70A.330(2).

       Although parties are not entitled to challenge any and all aspects of a county’s

comprehensive plan, a party may challenge amendments made in an updated comprehensive

plan. Thurston County, 164 Wn.2d at 344, 347. When the Board finds noncompliance on an

issue, the county’s new comprehensive plan provisions are presumed valid, and the challenger

bears the burden to establish that the new provisions are clearly erroneous under the GMA in

view of the entire record before the Board. RCW 36.70A.320(1)-(2).

       In Hazen v. Yakima County, challengers petitioned the Board regarding the compliance of

certain plan provisions. No. 08-1-0008c, at 14 (E. Wash. Growth Mgmt. Hr’gs Bd. April 5,

2010). During the pendency of the Board’s review, Yakima County amended some provisions,

removing one provision outright and adjusting others. Hazen, at 14-15. The Board found that

consideration of the repealed provision was moot, but that the amended provisions remained

under the Board’s compliance review. Hazen, at 15.

C.     The Board Did Not Err by Finding Compliance

       FOCC argues that the County did more than merely repeal noncompliant provisions and

reinstate former plan provisions. We disagree.

       Following the Board’s noncompliance findings on Issues 11 and 13, the County

reenacted the pre-2016 Plan Update plan provisions. The Board previously found these



                                                 49
No. 50847-8-II;
Cons. 51745-1-II
provisions compliant with the GMA. Because of this, the Board determined that the issues

regarding the now-repealed provisions were moot and found the County compliant regarding the

reenacted provisions.

       FOCC argues that this court’s opinion in Miotke supports the proposition that even if the

previous provisions had been determined compliant, their current compliance based on land use

is subject to renewed scrutiny. Because Miotke is distinguishable, we disagree.

       In Miotke, while the Board reviewed the county’s updated UGA designation,

development rights of property owners vested in the new UGA. Miotke, 181 Wn. App. at 373.

The Board found this UGA designation noncompliant with the GMA and made a determination

of invalidity. Miotke, 181 Wn. App. at 373. In an attempt to comply, Spokane County repealed

the UGA designation and reverted the land to its prior designation. Miotke, 181 Wn. App. at

374. This court held that the vested rights of property owners did not relieve the county of its

planning obligations under the GMA. Miotke, 181 Wn. App. at 379. Rather, because the UGA

was subject to a determination of invalidity, the county was responsible for showing GMA

compliance in its new planning decision. Miotke, 181 Wn. App. at 379-80.

       In Miotke, the Board made a determination of invalidity, shifting the burden to the county

to prove compliance. 181 Wn. App. at 379-80. Here, however, the Board found the County

merely noncompliant regarding Issues 11 and 13. Without a determination of invalidity, the

burden remains with the challenger, FOCC, to show the Board erred. Here, FOCC has not met

its burden to show that the Board acted in a clearly erroneous manner when finding the County

compliant for Issues 11 and 13 after it repealed the challenged provisions and readopted




                                                50
No. 50847-8-II;
Cons. 51745-1-II
previously compliant provisions. Accordingly, we hold the Board did not err when concluding

that the County achieved compliance regarding Issues 11 and 13.

                                       XIII. CONCLUSION

       We grant FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review

of the FDO for lack of appellate jurisdiction. We hold that the Board’s finding of the County’s

noncompliance regarding the County’s UGAs designations are moot. Further, we hold that the

Board did not err when rejecting all of CCCU’s arguments. Finally, we hold that the Board did

not err when it determined that the County was compliant regarding Issues 11 and 13. We

remand to the Board for further proceedings in accordance with this opinion.



                                                                   Worswick, J.
 We concur:



Maxa, C.J.




Glasgow, J.




                                               51
