[No. 35267-2-II. Division Two. May 30, 2007.]
[1] Counties — Land Use Controls — Growth Management Act — Hearings Board Decision — Judicial Review — Appellate Review — Role of Appellate Court. An appellate court reviewing a growth management hearings board decision sits in the same position as the trial court and applies the review standards of the Administrative Procedure Act (chapter 34.05 RCW) to the record before the board. [2] Administrative Law — Judicial Review — Question of Law — Meaning of Statutes — Deference to Agency — In General. Under the Administrative Procedure Act (chapter 34.05 RCW), a reviewing court gives substantial weight to an agency's interpretation of the statutes it administers. [3] Counties — Land Use Controls — Growth Management Act — Planning Policies — Discretion — Deference by Reviewing Agencies. Although the Administrative Procedure Act (chapter 34.05 RCW) requires a reviewing court to give substantial weight to an agency's interpretation of the statutes it administers, the Growth Management Act (chapter 36.70A RCW) requires even greater deference be given to local planning actions that are consistent with the goals and requirements of the act. A growth management hearings board ruling that fails to apply the more deferential standard of review to county actions is not entitled to deference by a reviewing court. Deference to county action ends only if the action is a clearly erroneous application of the Growth Management Act. [4] Counties — Land Use Controls — Growth Management Act — Administrative Review — Growth Management Hearings Board — Local Compliance With Act — Clearly Erroneous Test. Under RCW 36.70A.320(3), a county's action is clearly erroneous if the Board is left with the firm and definite conviction that a mistake has been made. [5] Counties — Land Use Controls — Growth Management Act — Administrative Review — Growth Management Hearings Board — Burden of Proof. Under RCW 36.70A.320(2), a party challenging a county's actions bears the burden of demonstrating that the actions do not comply with the Growth Management Act (chapter 36.70A RCW). [6] Administrative Law — Judicial Review — Appellate Review — Conclusions of Law. An agency's legal conclusions are reviewed by an appellate court de novo. [7] Administrative Law — Judicial Review — Findings of Fact — Failure To Assign Error — Effect. An agency's undisputed findings of fact are verities before a reviewing court. [8] Counties — Land Use Controls — Growth Management Act — Public Policy — In General. The goals of the Growth Management Act (chapter 36.70A RCW) are to encourage development in areas already characterized by urban development, encourage conservation of productive agricultural lands, and reduce urban sprawl. [9] Counties — Land Use Controls — Growth Management Act — Planning Policies — Consistency With Actual Growth — Periodic Review and Evaluation — Purposes. The purpose of the review and evaluation program required by RCW 36.70A.215 is to evaluate growth management planning progress by comparing actual growth and development with planning policy and comprehensive plan growth projections. The review and evaluation program must include data from land use and activities both inside and outside of urban growth areas and must provide for annual collection of data on urban and rural land uses. The evaluation provides a basis for a county to determine whether it is achieving urban densities in line with its policies and planning under the Growth Management Act (chapter 36.70A RCW). [10] Counties — Land Use Controls — Growth Management Act — Planning Policies — Consistency With Actual Growth — Periodic Review and Evaluation — Data Collection — Urban and Rural Area Uses. A county's review and evaluation of whether its actual growth is consistent with its growth management policies and planning as required by RCW 36.70A.215 must take into consideration land uses, development, and activities in both urban and rural areas. The purpose of the periodic review required by RCW 36.70A.215 is to bring growth into compliance with planning. It is incumbent upon a county to use the best available information to conduct the review. [11] Counties — Land Use Controls — Growth Management Act — Planning Policies — Consistency With Actual Growth — Necessity. A county's use of imprecise data in conducting the periodic planning review required by RCW 36.70A.215 does not excuse the county from ensuring that actual growth in the county is consistent with growth management policies and planning. [12] Counties — Land Use Controls — Growth Management Act — Planning Policies — Factors — Vested Nonconforming Lots in Rural Areas. The existence of vested, nonconforming lots outside of urban areas must be factored into a county's development projections for purposes of growth management planning. [13] Counties — Land Use Controls — Growth Management Act — Planning Policies — Consistency With Actual Growth — "Reasonable Measures" — Restated Prior Regulations. Under RCW 36.70A.215(4), a county must adopt "reasonable measures" reasonably likely to remedy inconsistencies between actual growth in the county and the county's growth management policies and planning. "Reasonable measures" do not include a restatement of regulations in existence during the time of an inconsistency. [14] Statutes — Construction — Question of Law or Fact — Review — Standard of Review. The interpretation of a statute is a question of law that is reviewed de novo. [15] Statutes — Construction — Legislative Intent — Statutory Language — Plain Meaning — Context. A court's primary obligation when interpreting a statute is to give effect to the legislature's intent. The court first looks to the statute's plain language in order to fulfill its obligation and give effect to legislative intent. When a statute is unambiguous, the legislature's intent is determined from the plain language alone. In determining a statute's plain meaning, a court may look to all that the legislature has said in the statute and in related statutes that disclose legislative intent about the provision in question. [16] Statutes — Construction — Omitted Language — In General. A court may not add words to a statute that the legislature has chosen not to include. [17] Statutes — Construction — Exclusion and Inclusion — In General. Under the canon of expressio unius est exclusio alterius, the express inclusion of certain things in a statute implies that other things not included are omitted intentionally. [18] Counties — Land Use Controls — Growth Management Act — Urban Growth Area — Periodic Review — Deadline — First Review. Under RCW 36.70A.130(3), the first 10-year review of an urban growth area is due 10 years after the area is designated. [19] Counties — Land Use Controls — Growth Management Act — Hearings Board Decision — Advisory Opinion — What Constitutes. A ruling issued by a growth management hearings board does not constitute an advisory opinion prohibited by RCW 36.70A.290(1) if the ruling appropriately relates to an issue raised to the board concerning whether a planning jurisdiction is in compliance with the Growth Management Act (chapter 36.70A RCW). Nature of Action: A county sought judicial review of a growth management hearings board decision that the county was required to complete its 10-year urban growth area review by a date earlier than what the county thought it should be. Other parties sought review of a board decision that measures taken by the county were sufficient to bring actual growth in the county into consistency with the county's growth management policies and comprehensive plan. Superior Court: The Superior Court for Thurston County, No. 04-2-02138-1, Chris Wickham, J., on December 22, 2005, entered a judgment (1) affirming the board's decision that the county's comprehensive plan and planning policies were inconsistent, (2) reversing the board's decision that a resolution adopted by the county constituted a "reasonable measure" to bring actual growth into compliance with growth management policies and planning, and (3) affirming the board's decision that the county was required to conduct the 10-year urban growth area review sooner rather than later. Court of Appeals: Holding that the record supported the board's decisions that there were inconsistencies between the county's actual growth and its planning policies and comprehensive plan, but that the measures adopted by the county did not satisfy the consistency requirement, and that the county's 10-year review is due by a later date, the court affirms the judgment in part and reverses in part. Jerry Harless, pro se. Russell D. Hauge-, Prosecuting Attorney, and Shelley E. Kneip- and Lisa J. Nickel-, Deputies, for appellant. Melody L. Allen- (of Suquamish Tribe, Office of Tribal Attorney); Robert M. McKenna-, Attorney General, and Martha P. Lantz-, Assistant, David A. Bricklin- (of Bricklin Newman Dold, L.L.P.); Elaine L. Spencer- (of Graham & Dunn, P.C.); John T. Zilavy-; and Tim Trohimovich- and Keith P. Scully- (of Futurewise), for respondents. [As amended by order of the Court of Appeals July 31, 2007.] ¶1 PENOYAR, J. — Kitsap County (County) appeals from the Growth Management Hearings Board's (Board) decision regarding the County's attempts to comply with the Growth Management Act's (GMA), chapter 36.70A RCW, reporting procedures. The Board found that the County's actual growth was inconsistent with its comprehensive plan and that, under RCW 36.70A.215(4), the County was required to adopt "reasonable measures" to increase consistency. In a second appeal, the Board found that the County's "reasonable measures" were adequate. In this consolidated appeal, we affirm the Board's decision that there were inconsistencies in the County's actual growth and their planning policies and comprehensive plan, but we reverse the Board's decision that the "reasonable measures" were adequate. The County must take further steps to make growth consistent with its comprehensive plan. FACTS ¶2 Washington State adopted the GMA to address growth in our state and to minimize the threats of unplanned growth to the environment, economic development, and public welfare. RCW 36.70A.010; Diehl v. Mason County, 94 Wn. App. 645, 650, 972 P.2d 543 (1999). The GMA required the central Puget Sound area counties to adopt a comprehensive land use plan ¶3 As the statute required, the County issued a development report in 2002 in which it analyzed the county's development trends from 1995 to 1999. Since the County did not adopt a compliant comprehensive plan until 1998, this "buildable lands report" (BLR) contained just one year of data about the County's development trends under the GMA compliant comprehensive plan. 8 Administrative R. (AR) at 4407. The BLR reported that during 1995 to 1999, 18 percent of residential units occurred in UGAs and 25 percent in cities. The County's growth policy promoted urban area development and stated that 83 percent of new population growth should be directed to UGAs. The Board's First Decision ¶4 After the County issued the BLR, the Suquamish Tribe, Futurewise, ¶5 The Board agreed. It found that the BLR revealed "inconsistencies between what is occurring and what the County's Plan is designated to achieve." 8 AR at 4410. It cited to two sections in support of its conclusion. First, it cited to a BLR section explaining that: Residential development has been active in Kitsap County between 1995 and 1999, with a slight majority of all new residential permits issued in the rural unincorporated area. [A chart indicates 55 percent of the residential units permitted are outside UGAs and cities.] . . . In terms of land area, the vast majority of new residential land consumed is in the jurisdiction of rural unincorporated Kitsap County. [A chart indicates 81.9 percent of the residential acres permitted are outside UGAs or cities.] . . . In rural unincorporated Kitsap County, development densities average approximately 1 unit per acre, which represents a midpoint between extremely rural and urban style densities. One development constraint is the large number of smaller, non conforming lots of record. Until these parcels are fully absorbed, the County may face obstacles in directing new growth toward urban areas. 8 AR at 4410. Second, it cited to Kitsap County Policy A.3 that ordered: The Kitsap Regional Coordinating Council shall adopt a new process for allocating the forecasted population for the period 2002-2022 and forward by September 30, 2001, consistent with the requirements of the Growth Management Act. The allocation shall be based on the Buildable Lands Analysis and it shall promote a countrywide development pattern directing over five sixths [83 percent] of new population growth to the designated Urban Growth Areas. The County and the Cities recognize that the success of this development pattern requires not only the rigorous support of Kitsap County in the rural areas, but also Cities' comprehensive plans being designed to attract substantial new population growth. 8 AR at 4410. ¶6 The Board found that the BLR identified development patterns that were inconsistent with the GMA, the County's planning policies, and its comprehensive plan. Under RCW 36.70A.215(4), the Board therefore directed the County to identify "reasonable measures" to remedy the inconsistencies and to implement the measures by December 1, 2004. 8 AR at 4410-11 (citing RCW 36.70A.215(4), .215(1)(b), .130(4)(a)). The Board required the County to adopt and implement measures that were reasonably likely to increase consistency during the subsequent five-year period. RCW 36.70A.215(4). In its decision on reconsideration, the Board also indicated that the County's 10-year UGA review was due on December 1, 2004. The Board's Second Decision ¶7 In response to the Board's decision and to comply with RCW 36.70A.215(4), the County passed a resolution listing various "reasonable measures" taken to comply with the GMA. 3 Clerk's Papers (CP) at 502. Futurewise and Harless again appealed, arguing that the resolution did not contain any new actions, was merely a summary of actions the County previously had taken, and that the actions did not meet the GMA's definition of "reasonable measures." RCW 36.70A.215. Harless also appealed, arguing that the County did not complete its 10-year UGA review by December 1, 2004. ¶8 In June 2005, the Board concluded that the measures did meet the GMA's definition of "reasonable measures," under RCW 36.70A.215, and upheld its previous decision that the County was required to complete its 10-year UGA review by December 1, 2004. During this proceeding, the County acknowledged that it had not yet conducted its 10- year UGA review and, due to the complexity of the County's review, the Board therefore extended the UGA review deadline from December 1, 2004 to June 20, 2006. AR 1241. Both Parties Appeal to Trial Court ¶9 The parties appealed the Board's two decisions to superior court. The court (1) affirmed the Board's decision that the County's comprehensive plan and planning policies were inconsistent; (2) reversed the Board's decision that the "reasonable measures" the County adopted met the GMA's definition of "reasonable measures" and remanded to the Board to allow the County to propose additional measures to satisfy the GMA; and (3) affirmed the Board's decision that the County was required to conduct the 10-year UGA review by December 1, 2004. The parties now appeal. ANALYSIS I. Deference, Burden of Proof, and Standard of Review under the GMA ¶10 This is an appeal from a decision of the administrative board charged with adjudicating GMA compliance. RCW 36.70A.280, .302. ¶11 The GMA states that the Board must presume that a county's comprehensive plans and development regulations are valid upon adoption. RCW 36.70A.320(1). It requires that the Board defer to county decisions and actions. Pres. Our Islands v. Shorelines Hearings Bd., 133 Wn. App. 503, 516, 137 P.3d 31 (2006). ¶13 Although the APA requires us to give substantial weight to an agency's interpretation, the GMA requires that we give even greater deference to county planning actions that are consistent with the GMA's goals and requirements. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). Thus, under the APA we need not give deference to a board's ruling that fails to apply the more deferential standard of review to county actions. Quadrant Corp., 154 Wn.2d at 238. Deference to county action under the GMA only ends if its actions are "clearly erroneous" applications of the GMA. Quadrant Corp., 154 Wn.2d at 238. II. Inconsistencies ¶16 The County first asserts that the BLR did not demonstrate any "inconsistencies" between actual growth and the County's policies and plan under the GMA. It asserts that the GMA's evaluation component and the identification of inconsistencies requires development analysis of urban areas, not rural areas, and that the BLR sections the Board cited in support of its conclusion deal with development in rural areas that are not subject to the GMA. ¶17 The County also asserts that the data contained in the BLR is irrelevant to the County's attempts to comply with the GMA because the County's comprehensive plan was effective in 1998 and the BLR covers the County's development from 1995 to 1999, and the Board's decision penalizes the County for past decisions and past noncompliance with the GMA. The County argues that when the GMA was passed, many County residents owned land that did not comply with the GMA and the property owners of these nonconforming lots had vested, pre-GMA rights. The County argues that vested, nonconforming lots must be considered in analyzing the high number of residential building permits reported in the BLR. ¶19 The GMA requires counties to adopt a comprehensive plan and to designate UGAs. RCW 36.70A.040. It orders counties with large populations or rapid growth to plan for future growth and to issue reports on whether it is achieving urban densities that are consistent with the county's planning policies and comprehensive plan. RCW 36.70A.040, .215. ¶21 In 2002, the County submitted the BLR covering 1995 to 1999 to comply with RCW 36.70A.215. The Board found that the BLR demonstrated inconsistencies between actual growth in the County and growth under the County's development plan. The Board correctly placed the burden on the Suquamish Tribe, Futurewise, and Harless and found that the BLR revealed inconsistencies because the County (1) failed to accommodate 83 percent of new growth within the UGAs, (2) failed to achieve appropriate urban densities within the UGAs, and (3) allowed inappropriate development in rural areas. We agree with the Board. ¶23 The goal of the GMA's periodic reviews is to bring growth into compliance with the comprehensive plan, and it is incumbent on the County to use the best available information to conduct these reviews. The BLR may have been outdated and it may only contain data from one year of relevant analysis, but use of imprecise data does not excuse the County from complying with the GMA's requirements. The BLR revealed that a majority of new residential permits were issued in rural areas. The County's policy indicated that it would promote a development pattern directing 83 percent of new population growth to urban areas. These two calculations are inconsistent, and we affirm the Board's conclusion. III. Reasonable Measures ¶25 The County next argues that the Board was correct in finding that the "reasonable measures" identified in its resolution were adequate to ensure compliance with urban density requirements. The trial court reversed the Board's finding, and the County argues that the court erred. The County asserts that the Board, not the trial court, gave the proper deference to the County and that we should therefore uphold the Board's decision that the "reasonable measures" were adequate. ¶26 Futurewise argues that the "reasonable measures" that the County identified were in place and operative while the inconsistencies developed and that the resolution was merely a summary of actions the County had previously taken and did not contain any new actions. The trial court agreed with Futurewise and reversed the Board, stating: Presenting a litany of prior measures taken when those measures have obviously not achieved the desired result is contrary to the intent of the statute, which is to adopt measures over time which will achieve certain goals. 3 CP at 503. If the evaluation required by subsection (3) of this section demonstrates an inconsistency between what has occurred since the adoption of the county-wide planning policies and the county and city comprehensive plans and development regulations and what was envisioned in those policies and plans and the planning goals and the requirements of this chapter, . . . the county and its cities shall adopt and implement measures that are reasonably likely to increase consistency during the subsequent five-year period. RCW 36.70A.215(4). ¶28 After the Board concluded that there were inconsistencies, the County listed 18 "reasonable measures" adopted under RCW 36.70A.215 to promote urban growth. The County stated that it would encourage accessory dwelling units in single-family zones; allow clustered residential development, duplexes, town houses and condominiums; encourage development or urban centers and villages; encourage mixed-use development; create annexation plans and affordable and manufactured housing; increase urban amenities; allow master planning for large parcel development; encourage transportation-efficient land use; and increase access to critical services near homes, jobs, and transit. ¶29 Futurewise is correct that listing regulations in existence during the time of an "inconsistency" is not likely to cause any different result and are not "reasonable measures" that are likely to increase consistency during the subsequent five-year period. RCW 36.70A.215(4). Because the measures the County identified all existed during the time of the inconsistency, we reverse the Board's conclusion that they were "reasonable measures" and hold that the County therefore violated RCW 36.70A.215 by not adopting and implementing measures that were reasonably likely to increase consistency. IV. The 10-Year UGA Review ¶30 The County also argues that the Board erred in requiring the County's 10-year UGA review by December 1, 2004. The County asserts that, because it did not adopt its comprehensive plan and did not designate its UGAs until 1998, the first 10-year review is not due until 10 years after 1998, in 2008. ¶31 Futurewise disagrees. It argues under RCW 36.70A.130(3) that the deadline for the County's 10-year UGA review is December 1, 2004. Futurewise explains that all other GMA deadlines were triggered by the July 1, 1994 deadline and that there are important policy reasons for requiring a consistent timeline for GMA review. ¶32 Under RCW 36.70A.130(3): (a) Each county that designates urban growth areas under RCW 36.70A.110 shall review, at least every ten years, its designated urban growth area or areas, and the densities permitted within both the incorporated and unincorporated portions of each urban growth area. In conjunction with this review by the county, each city located within an urban growth area shall review the densities permitted within its boundaries, and the extent to which the urban growth occurring within the county has located within each city and the unincorporated portions of the urban growth areas. . . . (b) The review required by this subsection may be combined with the review and evaluation required by RCW 36.70A.215. (Emphasis added.) ¶33 The issue here is from what date the 10-year UGA review begins. RCW 36.70A.130(3) does not specify the date. The Board determined, and the trial court agreed, that December 1, 2004 marked the deadline for the first 10-year UGA review. We disagree. ¶37 The GMA originally contained the provision for the 10-year review of UGAs. LAWS OF 1990, 1st Ex. Sess., ch. 17, § 13. Only in 1997 did it establish specific deadlines for the first broader review and update of complete comprehensive plans, and then that deadline was September 1, 2002. LAWS OF 1997, ch. 429, § 10. In 2002, the legislature set the current comprehensive plan review deadline of December 1, 2004. LAWS OF 2002, ch. 320, § 1. Even after these two updates to the GMA deadline for comprehensive plan review contained in RCW 36.70A.130(4), the legislature did not alter subsection (3) to include a reference to the December 1, 2004 deadline. The legislature clearly considered the GMA deadlines and could have easily included a reference to subsection (4) in subsection (3). It did not. The statute plainly states that "[e]ach county that designates urban growth areas . . . shall review, at least every 10 years, its designated urban growth areas . . . ." RCW 36.70A.130(3). Thus, the review would begin 10 years after the designation, which for Kitsap County would be in 2008, not 2004. ¶38 The trial court and the Board reasoned that the County's deadlines for the initial review of the comprehensive plan and the UGAs should be the same. The GMA requires review of UGA's "at least" every 10 years, but it requires subsequent reviews of the comprehensive plan to take place every 7 years. RCW 36.70A.130(1), (4)(a). Therefore, even if the initial review of the comprehensive plan and UGAs is due on the same day, the deadline for the two reviews will not be the same again for 70 years. ¶39 Although it may be reasonable for GMA review deadlines to be consistent with each other, under the plain language of RCW 36.70A.130, the legislature did not seem concerned with coordinating these reviews. It did, however, specifically allow counties to conduct the required reviews more frequently than specified and provided counties the flexibility to coordinate the timing of the various reviews. RCW 36.70A.130(5)(a). Although it allowed for flexibility, the legislature did not require they be due at the same time. We reverse the Board's conclusion and allow the county until December 1, 2008 to submit the UGA review. V. Advisory Opinions ¶41 The GMA, RCW 36.70A.290(1), provides that: All requests for review to a growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board. The board shall render written decisions articulating the basis for its holdings. The board shall not issue advisory opinions on issues not presented to the board in the statement of issues, as modified by any prehearing order. (Emphasis added.) ¶42 The County argues that the parties did not raise or brief the UGA review deadline issue and that the Board's decision that the 10-year UGA review due on December 1, 2004 was advisory and outside the Board's jurisdiction. ¶43 We hold that the Board did not issue an advisory opinion. It is true that the Board's conclusion regarding the 10-year review came after the motion for reconsideration, but in its first decision, the Board considered issues relating to the County's UGAs. The Board considered the County's amendments to its comprehensive plan and its UGA expansions, which posed questions about population projections and allocations. In its order on reconsideration, the Board analyzed whether it misinterpreted a key fact concerning the size of a UGA. The Board conceded that it did make a factual error regarding the UGA and then analyzed whether the UGA complied with the GMA. It decided that the County's UGA did comply with the GMA and stated that the County's next periodic review is due December 1, 2004. It stated that: The Board reads RCW 36.70A.130 to require that on or before December 1, 2004 (.130(4)(a)), Kitsap County's planning cycle must be brought into the GMA sequence, using OFM's most recent ten-year population forecast, (.130(1)(a)), evaluating its UGA boundaries and densities (.130(3)), and applying BLR findings to its UGA decisions (.130(3) and .215). 1 CP at 91. At issue was whether the County's UGAs complied with the GMA including the required periodic review. Therefore, it was not merely advisory for the Board to determine the deadline for UGA review. ¶44 The County also argues that the Board's discussion of "reasonable measures" in its second opinion was advisory and beyond the Board's jurisdiction. In a footnote to its decision, the Board listed measures that would bring the county in compliance with the GMA. We also hold that the Board's discussion of "reasonable measures" was not advisory. The Board's discussion in its second decision clearly concerned whether the measures the County adopted complied with the GMA. Giving examples of measures that might comply with the GMA is not advisory. ¶45 We affirm the Board's conclusion that the BLR was inconsistent with the County's planning policies and its comprehensive plan and affirm that the County's measures were not reasonably likely to remedy the inconsistencies. We reverse, however, the Board's conclusion that the County's 10-year review was due in 2004 and find that it is due on December 1, 2008. BRIDGEWATER and QUINN-BRINTNALL, JJ., concur. Reconsideration denied July 31, 2007.