Summary of a Recent
Judicial
Development in
Urbanization & Agriculture
Regulation of Preexisting Agricultural Uses in "Critical Areas"
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Clallam County v. Western Washington Growth Management Hearings Board, 121 P.3d 764 (Wash. Ct. App. 2005), the Court of Appeals of Washington held that the Growth Management Act (GMA) allowed regulation of preexisting agricultural uses in critical areas.
Background
The Western Washington Growth Management Board (Board) invalidated Clallam County's preexisting agricultural uses exemption from the County's critical areas ordinance. Id. at 765. The Board concluded that the County could not completely exempt ongoing agricultural uses from regulation under the GMA because such uses significantly impacted the environment, and also determined that balancing the GMA's goals and requirements could be done only for designated agricultural resource lands, not for all agriculture. Id. The Board thus invalidated Clallam County Code 27.12.035(7), the exemption for existing agricultural activities, because it "was not limited to agricultural resource areas, was written too broadly, failed to protect critical areas, and did not comply with the GMA." Id. The superior court reversed, and Protect the Peninsula's Future, an opponent of the exemptions, appealed. Id. at 766.
Arguments
Appellants argued that the GMA permitted reasonable regulation of agricultural uses, and that there was substantial evidence to support the Board's determination. Id. at 768.
Analysis and Holdings
The GMA requires all counties to adopt development regulations for "critical areas," which include "(a) wetlands, (b) areas with a critical recharging effect on aquifers used for potable water, (c) fish and wildlife habitat conservation areas, (d) frequently flooded areas, and (e) geologically hazardous areas." Id. (quoting Wash. Rev. Code Ann. 36.70A.030(5)). The provision was silent as to whether it applied to preexisting uses. Id. After considering various provisions of the GMA, the court interpreted it to allow regulation of preexisting agricultural uses in critical areas, and therefore reinstated the Board's decision as to that issue. Id. at 769. However, the court disagreed with the Board's determination that the County could exempt only designated agricultural resource land from full critical areas regulation, and held that "the County may expand its exempt agricultural land to meet its local conditions," but it "must balance such expanded exemption with corresponding restrictions that take into account the specific harms threatened by the expanded class of farm lands." Id. at 771.
The case was decided on October 25, 2005.