King County v. Central Puget Sound Growth Management Hearings Board

Johnson, J.

(dissenting) — In reaching its decision, the majority focuses almost entirely on the Growth Management Act’s (GMA) directive to conserve agricultural land. This approach minimizes the other directives of the GMA and prevents local governments from utilizing the innovative techniques the GMA provides for. The majority erroneously reads the goal of protecting agricultural land in isolation from other GMA provisions, including the statutory directive to provide recreational facilities. These directives can be interpreted harmoniously, however, giving effect to each. This is exactly what King County did when it designed a plan that not only preserves the agriculture potential of the land but also provides for much needed recreational facilities. I would affirm the superior court and hold King County’s plan allowing a soccer field as an interim use does not violate the GMA.

The property at issue in this case is not lost to agricultural use when used for an interim soccer field. The Kaplan property has not been farmed for 30 years. Presumably, its inclusion in King County’s agricultural production district was to preserve the potential for agricultural development, not to preserve current farming operations. Using the land for an interim soccer field preserves the soil while also providing for recreational uses. The County’s plan includes specific guidelines to protect the soil for future agricultural use, if needed, and minimize any changes to the land.11 In *564this case, the County is not turning a blind eye to the statutory directive to conserve agricultural land by developing it in a manner which would displace current agricultural use or destroy future agricultural use. Instead, the County followed all applicable statutory directives and provided an innovative method of preserving agricultural land, while at the same time addressing the paucity of soccer fields in the area.

The majority’s reading of the GMA fails to give meaning to the entire statute. A statute must be considered as a whole to ensure all parts of the statutory scheme operate in harmony, and to avoid leaving any language without effect. State v. Malone, 106 Wn.2d 607, 610-11, 724 P.2d 364 (1986). The majority finds support for its conclusion by focusing narrowly on the active verbs in sections of the GMA, instead of reading the GMA as a whole. Despite the fact the statute specifically states its goals “are not listed in order of priority,” RCW 36.70A.020, the majority concludes a county’s duty to conserve agricultural land is a higher priority than creating recreational facilities, in essence making meaningless other provisions of the GMA. Such a *565hierarchy is unwarranted. Although the majority discusses the GMA’s goals for providing recreational uses and its flexible authority to plan, ultimately the majority finds these provisions meaningless. By focusing narrowly on certain GMA provisions to the exclusion of others, the majority violates the fundamental rule that a statute must be considered as a whole and, thus, draws an erroneous conclusion. Evidently, under the majority’s approach, the only allowable use in an agricultural production district is farming, even if the land is not being used for farming. This makes no sense.

While the GMA does direct local governments to conserve agricultural land, it also instructs those same governments to provide recreational facilities. See RCW 36.70A.020-(8), (9), (12); RCW 36.70A.060; RCW 36.70A.160; RCW 36-.70A.170. The GMA encourages these governments to “use a variety of innovative zoning techniques in areas designated as agricultural lands . . . .” RCW 36.70A.177(1). The term “innovative techniques” means “a new and different way to achieve a given result.” Green Valley v. King County, No. 98-3-0008c, at 17 (Central Puget Sound Growth Mgmt. Hr’gs Bd. Final Decision and Order (July 29, 1998)). The GMA does not instruct local governments as to what methods they should use to accomplish these goals. Instead, the GMA encourages flexibility and innovation. The methods chosen are within the discretion of these governments so long as they do not conflict with the GMA provisions. Consequently, this court must determine whether creating a soccer field on fallow property within an agricultural production district is an acceptable method of conserving the land for agricultural production.

A goal of the GMA is to “[e]ncourage the conservation of productive . . . agricultural lands . . . .” RCW 36.70A.020(8) (emphasis added). The GMA does not define the term “conservation” or explain what it means to conserve. “Conservation” is defined in Black’s Law Dictionary as: “[t]he supervision, management, and maintenance of natural resources; the protection, improvement, and use of natural *566resources in a way that ensures the highest social as well as economic benefits.” Black’s Law Dictionary 300 (7th ed. 1999). The meaning of “conserve” is “[t]o save from loss.” Black’s Law Dictionary 378 (rev. 4th ed. 1968). In this case, it is imperative that we determine what actually is being saved from loss. This will necessarily influence our assessment of whether the County has chosen a method of conservation that violates the GMA. For example, if the land at issue were currently being farmed and the County’s plan would displace this use, then the plan would contravene the GMA’s goal to conserve. If, however, the County were merely conserving the agricultural potential of the land, as is the case here, any use of the land that does not destroy this potential should satisfy the GMA’s mandate to conserve because there is no loss.

While the distinction between current agricultural use and the potential for such use is subtle, it is determinative in this case. Kang County designated several properties, including the Kaplan property, located on the north end of the Sammamish Valley as part of an agricultural production district. Not all properties were being used for agricultural purposes at the time of the designation. It is the policy of the County that agriculture be the preferred land use in the agricultural production district, but not the exclusive land use. See Policy RL-102 and Policy RL-302, 1994 King County Comprehensive Plan Complete with 1999 Updates, King County Office of Regional Policy & Planning (rev. 1999), available at http://www.metrokc.gov/exec/orpp/ compplan/1994_99. By including this property in the agricultural production district, the County eliminated the possibility that this land would be developed in a way that would destroy the soil and any future agricultural use. Its action, however, did not mandate that the land could be used only for farming. Indeed, the property at issue has not been farmed for 30 years. It lies fallow.

The current method of conserving the soil on the Kaplan property for future use is letting it remain as is. In its amended plan, the County chose a different method of *567conserving the agricultural potential of the property by placing an interim soccer field on the land. Under this plan, there is no displacement of current agricultural production or of the potential for future production on the land. There is no destruction of the soil. There is merely a change from one method of conservation to another.

The creation of an interim soccer field under the narrow guidelines of the County’s plan does not harm the potential future use of the land for agriculture. The County’s 1997 amendment provides strict and specific directives in order to prevent the destruction of the soil and the disturbance of those lands within the agricultural production district that are actually being farmed. More importantly, the amendment states that the field will be relocated if there is a “critical shortage of agricultural soils to accommodate an active soil-dependent agricultural proposal. . ..” King County Code 21A.08.040(B)(l)(d)(6). Thus, the majority’s assertion that the County’s proposal will “result in a net loss of designated agricultural land” is incorrect. See majority at 558.

Under the terms of the plan, the County saves the soil, does not reduce any current agricultural production, and preserves the property for future cultivation, if needed. There is no loss. The plan merely enables the County to swap one method of conservation (leaving the land uncultivated) for another (placing a soccer field on it). This is within the County’s discretion so long as the land remains available for actual farming in the future.

By passing the 1997 amendment, the County selected its preferred method of conservation while, at the same time, met its second goal of providing recreational facilities. There is a documented need for recreational facilities in unincorporated King County. By choosing the method of conservation that it did, the County attempted to remedy this problem. King County’s innovative approach to these dual concerns harmonizes multiple goals of the GMA. I would affirm the superior court’s decision upholding the County’s amended plan.

The County’s plan, as stated in King County Code 21A.08.040.B.l.d, provides the following safeguards:

“(1) Active recreation uses shall be designed in a manner that visually *564screens adjacent agricultural uses from park users and that restricts physical trespass onto adjacent agricultural production district properties;
“(2) Buildings associated with recreational uses shall be limited to restroom facilities, picnic shelters and storage/maintenance facilities for equipment used on-site;
“(3) No use that permanently compacts, removes, sterilizes, pollutes or otherwise materially impairs the future use of the soil for raising agricultural crops shall be allowed;
“(4) Any soil surfaces temporarily disturbed through construction activities shall be restored in a manner consistent with agricultural uses, including restoration of the original soil horizon sequence, as soon as practical following such disruptions;
“(5) Access to recreational uses shall be designed to minimize impact on the surrounding agricultural production district and should be limited to direct access along district boundaries whenever feasible; and
“(6) Although the recreational use of agricultural production district properties may be long term, such use shall be recognized as an interim use of the production district’s prime agricultural soils.. .. Whenever the county declares through action of the King County council a critical shortage of agricultural soils to accommodate an active soil-dependent agricultural proposal, the county shall initiate a process to relocate any recreational uses off the subject property, and to make the property available for re-establishment of agricultural activities!.]”