City of Redmond v. Central Puget Sound Growth Management Hearings Board

Sanders, J.

(concurring) — I also agree with the decision of the Central Puget Sound Growth Management Hearings Board (GMHB) which invalidated the agricultural designation of the subject properties due to the City of Redmond’s failure to enact a transfer of development rights (TDR) *59program. However the majority’s dicta corrupt the Legislature’s definition of “agricultural land” incorporated within the Growth Management Act (GMA), taking a giant step toward rendering this legislation unworkable.12

The majority’s conclusion effectively defeats the GMA by attributing a false purpose to reserve land within urban growth areas (UGAs), such as the land here, as open space, under an agricultural pretext. See Majority at 42. In-depth scholarly analysis of the Act discerns the intent of the GMA, and other similar acts, is to identify and separate urbanizable land from rural land and to designate areas (i.e., UGAs) as places where development is to be allowed and encouraged. Keith W. Dearborn & Ann M. Gygi, Planner’s Panacea or Pandora’s Box: A Realistic Assessment of the Role of Urban Growth Areas in Achieving Growth Management Goals, 16 U. Puget Sound L. Rev. 975, 976-77 (1993). The legislative intent is to concentrate public and private investment within the designated urban areas. Id. at 1006. This intent is realized by allowing someone who owns land within an urban growth area, not actually and productively used for agriculture, to devote it to increased urban use. Such reduces urban sprawl by efficiently allowing for increased development within the UGA. See RCW 36.70A.020(1) (Urban growth) and (2) (Reduce sprawl).

However in juxtaposition to the purposes of the GMA, Redmond did precisely the opposite: it curtailed the municipality’s ability to accommodate urbanized growth by engaging in a massive downzone while limiting land not actually used for agriculture to an agricultural use, or no use at all.13

*60THE QUESTION OF DEVOTION

Accordingly this agricultural zoning must be viewed in the context of the larger goal of the GMA to concentrate urban growth within urban growth boundaries. Given that our population must live somewhere, unchecked local efforts to discourage urban growth within urban areas defeat the GMA by making it unworkable.

Viewed in this light the Legislature has narrowly defined agricultural land:

“Agricultural land” means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees . . . finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.

RCW 36.70A.030(2).14 That is, “agricultural land” has two attributes: (1) land primarily devoted to commercial agricultural production; and (2) land that has long-term commercial significance for continued agricultural production. The majority writes “land is ‘devoted to’ agricultural use *61under RCW 36.70A.030 if it is in an area where the land is actually used or capable of being used for agricultural production.” Majority at 53 (emphasis added). Thus, according to the majority, it is possible that land upon which a crop has not grown for 25 years may nevertheless be land “devoted to” agriculture. This conclusion is contrary to the plain meaning of the statutory text and leads to an absurd result.

The starting point of all statutory construction must be the language of the statute itself. The meaning of the statute must be derived from the language if the language is unambiguous. Harmon v. Department of Soc. & Health Servs., 134 Wn.2d 523, 530, 951 P.2d 770 (1998); Freitag v. McGhie, 133 Wn.2d 816, 825-26, 947 P.2d 1186 (1997) (Sanders, J., dissenting). Words must be given their ordinary meaning. Department of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). We are proscribed from making an absurd interpretation of a statute to reach a result, no matter how much the majority may desire to do so. Cooper’s Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321, 326, 617 P.2d 415 (1980).

Furthermore, this court must give deference to the Growth Management Hearings Board’s interpretation of the GMA. “It is well settled that deference is appropriate where an administrative agency’s construction of statutes is within the agency’s field of expertise.” Chrysler Motors Corp. v. Flowers, 116 Wn.2d 208, 216, 803 P.2d 314 (1991); Green River Community College v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 438, 730 P.2d 653 (1986).

But the majority prefers an obscure dictionary definition of the word “devote” (“to ‘set apart or dedicate by a solemn or formal act’ ”) and applies it by claiming land which has lain fallow for 25 years is land nonetheless “devoted to” agriculture. Majority at 53 (quoting Random House Unabridged Dictionary 544 (2d ed. 1993)).

While this definition, in the abstract, may be consistent with the word when used in other contexts, I am at a loss to think of a single common or literary usage of the phrase *62“devoted to” that fits the majority’s usage. The Oxford English Dictionary (Oxford) devotes five full columns to the word “devote” and its various derivations, yet not one of its many quotations, from such as the Bible, Shakespeare, J.T. Fowler, and the correspondence of laymen, fits within the majority’s definition. III Oxford 293-95 (1933). Specifically, Oxford offers seven examples of the use of the word “devote” within the context of the definition advocated by the majority. But not a single one supports the majority’s application; rather each concerns actual gifts or declarations of love and lifelong devotion, id. at 294—hardly the usage employed by the majority.

Consider the result of the majority’s reasoning. Actually doing or not doing the activity for which one may have “devoted” his time or his land, by the majority’s definition, is not determinative.15 Rather, it is only setting aside, not doing or using, that truly matters.

We also assume that the Legislature is aware of the definitions that this court has attached to words and phrases. Price v. Kitsap Transit, 125 Wn.2d 456, 463-64, 886 P.2d 556 (1994). That which has been “devoted to” a specific use has often been addressed by this court. We have repeatedly held whether land is “devoted to” a particular use or not is determined by “the use to which the property is applied ...” State ex rel. Milwaukee Terminal Ry. Co. v. Superior Court, 54 Wash. 365, 375, 103 P. 469 (1909). It is use, not “zoning,” that has consistently been the court’s focus to determine whether or not land has been “devoted to” a specific use. See, e.g., Albee v. Town of Yarrow Point, 74 Wn.2d 453, 454-58, 445 P.2d 340 (1968) (street widened to allow access by traffic to Lake Washington is devoted to public use); Anderson v. Port of Seattle, 49 Wn.2d 528, 530, 304 P.2d 705 (1956) (municipal airport operated by Eort of Seattle is property devoted to public use); State ex rel. Eastvold v. Superior Court, 44 Wn.2d *63607, 608, 269 P.2d 560 (1954) (state highway operated by a municipal corporation is a property devoted to public use); State ex rel. York v. Board of Comm’rs, 28 Wn.2d 891, 897, 184 P.2d 577, 172 A.L.R. 1001 (1947) (a highway is land devoted to public use).

We are also commanded to interpret statutes in a manner that avoids illogical or absurd results. Blondheim v. State, 84 Wn.2d 874, 879, 529 P.2d 1096 (1975).

But the majority’s circular reasoning achieves exactly the absurd outcome we are constrained to avoid. According to the majority one of the key questions a city should ask before determining whether land is to be designated agricultural under the GMA is: “Have we (the City) already zoned the land agricultural?” If it has, so reasons the majority, it satisfies the “devotion” test. However, if the land were not zoned agricultural, why else would anyone seek to challenge the determination as inconsistent with the statute? A self-fulfilling prophecy.

The majority also defines “devoted to” to mean land “actually used or capable of being used for agricultural production.” Majority at 53 (emphasis added). This definition is contrary to the Legislature’s. The Legislature joins “primarily devoted” and “long term commercial significance” whereas the majority virtually eliminates the first in favor of the second as land incapable of agricultural use cannot, by definition, be actually used for agricultural production. All that is left is land capable of being used for agriculture, which can’t refer to the actual use.16

Therefore, by the majority’s definition, what the GMA tests is only whether or not the alleged agricultural land has “long-term commercial significance,” notwithstanding the statutory requirement that such land have both devotion and long-term capability. “It is of course the rule that the courts are obliged to interpret a statute, if possible, so that no portion of it is superfluous, void, or insignificant.” *64Snow’s Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288, 494 P.2d 216 (1972) (citations omitted).

Giving preference to a city’s zoning designation is also illogical in the context of the statutory definition. Agricultural land, by the statute’s definition, is land “primarily devoted” to the commercial production of a variety of vegetable and animal products. RCW 36.70A.030(2). However, before land can be “primarily devoted” to the commercial production of such products it has to be agriculturally zoned; although just because it is so zoned does not mean it will be so used. The Legislature has codified an extensive list of possible uses within agriculturally zoned land to instruct Growth Management Hearing Boards, and this court, on the criteria which must apply to determine if land has been “devoted” to agriculture. Again, the majority’s reasoning is circular.

Finally, I am at a loss to understand how a zoning designation can be an indicator of land being “primarily devoted to” commercial agricultural production when in fact there is no commercial agricultural production and, by free market standards, will not be.

THE QUESTION OF INTENT

As the statute is clear and unambiguous, there is no need to engage in the always-dangerous practice of divining the Legislature’s intent.17 Even if we were to accept (which I do not) that the Legislature’s intent did not require the outcome of its clear words, this court would nonetheless be bound by the statute. Hoppe, 82 Wn.2d at 552 (“Words of a statute . . . must be given their usual and ordinary meaning. This is true regardless of the policy of enacting the law or the seeming confusion that may follow its enforce*65ment.”) (citations omitted); State v. Miller, 72 Wash. 154, 158, 129 P. 1100 (1913) (“It is a very well-settled rule that so long as the language used is unambiguous a departure from its natural meaning is not justified by any consideration of its consequences, or of public policy. . . .”) (quoting 36 Cyc. 1114).

However, let us for a moment humor the majority by somehow assuming the statute’s meaning is not plain— statutory definitions and all—therefore forcing us to interpret the statute in a manner that gives effect to the Legislature’s intent not fully expressed by the words actually employed. See, e.g., State v. Coffey, 77 Wn.2d 630, 637, 465 P.2d 665 (1970).18

The majority writes, “[a] stated legislative intent of the GMA is to maintain and enhance agricultural land.” Majority at 53 (citing RCW 36.70A.020(8)). The actual language of the statute is subtly, but perhaps importantly, different. Section .020 outlines the “goals” of the act. Among these goals is to “Maintain and enhance . . . productive . . . agricultural. . . industries [and ejncourage the conservation of . . . productive agricultural lands . . . .” RCW 36.70A.020(8) (emphasis added).

Among the other goals of the GMA, not cited by the majority, are those that: “[ejncourage development in urban areas . . . .”, RCW 36.70A.020(1); protect the property rights of landowners, RCW 36.70A.020(6); and “[ejncourage the involvement of citizens in the planning process . . . .,” RCW 36.70A.020(11). All of these stated intents of the GMA are, of course, best served by the conclusion reached by the GMHB, which is to encourage growth within urban growth boundaries, not defeat it.

If the Act’s goals require us to describe the language as “ambiguous,” we must apply the maxim which requires us *66to apply zoning regulations with more than one reasonable construction in the manner least restrictive to the landowner. 3A Norman J. Singer, Statutes and Statutory Construction § 75.07 (5th ed. 1992); Mall, Inc. v. City of Seattle, 108 Wn.2d 369, 378, 739 P.2d 668 (1987). This, of course, is decidedly neither the interpretation the majority selects, nor the one which avoids putting the Act’s goals in conflict with one another.

A further indication that “devoted to” means current use is found in Twin Falls where the GMHB held “devoted to” means current use. Twin Falls, Inc. v. Snohomish County, 1993 WL 839715 (Wash. Cent. Puget Sound Growth Mgmt Hr’gs Bd., Sept. 7, 1993). After Twin Falls the Legislature amended the GMA in 1994, and specifically the section defining agricultural land, yet it did not amend the phrase “devoted to.” The Legislature is presumed to be aware of how a statute has been construed. Hazel v. Van Beek, 135 Wn.2d 45, 58, 954 P.2d 1301, 1307 (1998). Reenactment of a statute without material change after it has been construed by an authority entrusted with its interpretation implies acquiescence by the Legislature to the construction given the statute. Longview Fibre Co. v. Cowlitz County, 114 Wn.2d 691, 698, 790 P.2d 149 (1990).

CONCLUSION

I agree with the majority that land cannot be designated “agricultural” absent an in-place TDR. However, even if such a program were enacted I would affirm the GMHB’s logical, consistent, and clear reading of the GMA, to hold land which is not in actual productive agricultural use is not “devoted to” such use.

The majority’s definition, not being required, is dicta and therefore not binding in future cases. See Burkhart v. Harrod, 110 Wn.2d 381, 391, 755 P.2d 759 (1988) (Utter, J., concurring).

The GMHB in its Final Decision and Order specifically found:

Petitioners cited to the City Planning Director’s admonition to the Council, during its Plan review, that it was significantly reducing residential density city-wide while simultaneously increasing employment: *60. . . every decision that’s been made of almost two days of decisions has already reduced the overall housing capacity. We’ve already reduced the capacity of single family [R-4/8 to R-4/6]. I have no doubt that you’ll do more of that tonight . . . and now we’re reducing the capacity of multifamily. We’ve done it downtown and we’re doing it . . . you’re proposing this for Overlake. We don’t want the rural area to change east of us. We don’t want the rural area to change north of us. But we want to take all these jobs which raise—create tremendous demand for housing in Redmond. It just doesn’t hold together as a plan.

Benaroya v. City of Redmond, No. 95-3-0072, at 1762 (GMHB 1996). .

The GMHB, in reading this language, had no trouble understanding it. Land is devoted to the listed agricultural activities when land is used for one or more of those purposes. See Benaroya v. City of Redmond, No. 95-3-0072, Final Decision & Order at 1757-59 (GMHB 1996); Majority at 44. As the majority correctly notes, questions as to the meaning of state law are ultimately our responsibility. Majority at 46; (quoting Leschi Improvement Council v. State Highway Comm’n, 84 Wn.2d 271, 286, 525 P.2d 774, 804 P.2d 1 (1974)). Nonetheless, we assume that the GMHB is entitled to heightened deference where, as here, the Board’s construction of the statute is within its field of expertise. Green River Community College v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 438, 730 P.2d 653 (1986).

In this way the majority would avoid the “evil” of considering the intent or judgment of the private land owner as to whether agriculture is the best and highest use of his property, implicitly assuming that the free market is less able to efficiently allocate the use of real property than the political process.

Which is, effectively, all land—even a parking lot can be torn up, the ground underneath exposed, and a tomato plant planted.

As then Professor Easterbrook noted, “[b]ecause legislatures comprise many members, they do not have ‘intents’ or ‘designs,’ hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes.” Frank H. Easterbrook, Statutes’ Domains 50 U. Chi. L. Rev. 533, 547 (1983). See also North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 327, 759 P.2d 405(1988) (“What motivated the actual language of the statute is too speculative to be of assistance in interpreting the words enacted into law.”).

Although the majority never actually states that the wording of the definition of “devoted to” is ambiguous, it is implicit in the majority’s policy-driven analysis of the act and its examination of intent that preceded its definition. See Majority at 51-53. Such a digression would not, of course, be necessary, or even appropriate, absent some ambiguity in the statute. Harmon, 134 Wn.2d at 530.