Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: |
40272-6 |
Title of Case: |
Olympic Stewardship Foundation, Appellant V Western Wa Growth Mgt, Respondent |
File Date: |
01/26/2012 |
SOURCE OF APPEAL
----------------
Appeal from Thurston Superior Court |
Docket No: | 08-2-02852-3 |
Judgment or order under review |
Date filed: | 01/06/2010 |
Judge signing: | Honorable Richard D Hicks |
JUDGES
------
Authored by | Joel Penoyar |
Concurring: | Christine Quinn-Brintnall |
| David H. Armstrong |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| Brian Trevor Hodges |
| Pacific Legal Foundation |
| 10940 Ne 33rd Pl Ste 210 |
| Bellevue, WA, 98004-1432 |
Counsel for Respondent(s) |
| Marc Worthy |
| Office of the Attorney General |
| 800 5th Ave Ste 2000 |
| Seattle, WA, 98104-3188 |
|
| Mark Robert Johnsen |
| Attorney at Law |
| 1201 3rd Ave Ste 2900 |
| Seattle, WA, 98101-3284 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
OLYMPIC STEWARDSHIP FOUNDATION, No. 40272-6-II
Appellant,
v. ORDER GRANTING MOTION
FOR RECONSIDERATION AND
WESTERN WASHINGTON GROWTH WITHDRAWING OPINION
MANAGEMENT HEARINGS BOARD,
Respondent.
Olympic Stewardship Foundation filed a motion to reconsider our August 5, 2011
published opinion. After review of the files and records herein, we grant the motion.
The August 5, 2011 published opinion is withdrawn. A new opinion is filed this same
date.
Dated this __________________ day of ___________________________, 2012.
Panel: Jj. Armstrong, Quinn-Brintnall, Penoyar.
FOR THE COURT:
Chief Judge
40272-6-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
OLYMPIC STEWARDSHIP FOUNDATION, No. 40272-6-II
Appellant,
v.
WESTERN WASHINGTON GROWTH PUBLISHED OPINION
MANAGEMENT HEARINGS BOARD,
Respondent.
Penoyar, C.J. -- Rivers alter their course over time, a process known as "channel
migration." In 2009, Jefferson County (County) enacted a critical areas regulation requiring
property owners to retain all vegetation located in "high-risk" channel migration zones (CMZs)1
for five of the County's rivers. The regulation defined "high-risk CMZs" as those portions of the
five rivers' channels that are "likely to migrate" during the next 50 years. In this appeal, Olympic
Stewardship Foundation (Foundation) challenges the vegetation regulation, arguing that it
violates (1) the Growth Management Act's (GMA) "best available science" requirement, RCW
36.70A.172(1); and (2) RCW 82.02.020's "constitutional nexus and rough proportionality"
requirements. Additionally, the Foundation asserts that (3) the legislature's 2010 amendment to
RCW 36.70A.480 invalidates the County's nonconforming use regulation for critical areas. We
reject the Foundation's arguments and affirm the Western Washington Growth Management
1 A CMZ is a "corridor of variable width that includes the current river channel plus the adjacent
area through which the channel has migrated or is likely to migrate within a given timeframe." 1
Administrative Record (08-2-02852-3) at 208.
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Hearings Board's (Board) final decision and order and its subsequent compliance order.
3
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FACTS
The GMA, chapter 36.70A RCW,2 requires participating counties to designate critical
areas "where appropriate" and to adopt development regulations to protect these areas. RCW
36.70A.170(1)(d); RCW 36.70A.060(2). "Critical areas" include "geologically hazardous areas,"
which are defined as "areas that because of their susceptibility to erosion, sliding, earthquake, or
other geological events, are not suited to the siting of commercial, residential, or industrial
development consistent with public health or safety concerns." RCW 36.70A.030(5)(e), (9).
Counties must "include the best available science" when they designate critical areas or develop
policies and development regulations to protect critical areas. RCW 36.70A.172(1).
I. 2008 Ordinance
On March 17, 2008, the Jefferson County Board of County Commissioners (BOCC)
adopted critical areas ordinance 03-0317-08 (2008 ordinance), which added former chapter 18.22
(2008) to the Jefferson County Code (JCC). See Ordinance 03-0317-08, at 1, 16, 18, Ex. C. 1-
42. Article V of former chapter 18.22 JCC designated "geologically hazardous areas" in the
County and adopted protection standards for these areas. Former JCC 18.22.160, .170 (2008).
Significantly, former JCC 18.22.160(2)(d) designated CMZs as a type of "geologically
hazardous area" subject to article V's protection standards. The development regulations noted
that CMZs are "subject to risk due to stream bank destabilization, rapid stream incision, stream
bank erosion and shifts in the location of stream channels." Former JCC 18.10.030 (2008).
Besides designating CMZs as "geologically hazardous areas," former chapter 18.22 JCC
2 For ease of future reference, we cite to current GMA statutes throughout this opinion. We note
that although the legislature amended some of these statutes during the 2008-2011 period, none
of these amendments altered the substance of these statutes in a manner that impacts our analysis.
4
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defined CMZs to include three distinct components: "the present channel, the severe channel
migration hazard area and the moderate channel migration hazard area." Former JCC 18.10.030.
Another subsection defined a "high risk CMZ area" -- a designation that the BOCC may have
intended as a synonym for "severe channel migration hazard area" -- as an area where "channel
migration is likely within the next 100 years." Former JCC 18.22.160(2)(d). Most importantly,
for purposes of this appeal, article V's protection standards imposed the following "vegetation
retention" requirements on any future project involving a parcel that contained a CMZ:
(1) General. Application for a project on a parcel of real property containing a
designated geologically hazardous area or its buffer shall adhere to the
requirements set forth below.
. . . .
(4) Vegetation Retention. The following provisions regarding vegetation
retention shall apply:
(a) During clearing for roadways and utilities, all trees and understory
lying outside of approved construction limits shall be retained;
provided, that understory damaged during approved clearing
operations may be pruned.
(b) Damage to vegetation retained during initial clearing activities
shall be minimized by directional felling of trees to avoid critical
areas and vegetation to be retained.
(c) Retained trees, understory and stumps may subsequently be
cleared only if such clearing is necessary to complete the proposal
involved in the triggering application.
Former JCC 18.22.170.
A. County's Consideration of "Best Available Science"
The BOCC included findings in the 2008 ordinance that addressed the GMA's "best
available science" requirement:
81. . . . Classification and/or designation of certain regions of the county as a
particular type of critical area is, in many cases, based on information disseminated
by others. . . . These citations to outside sources used to determine where critical
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areas are located within the County are hereby incorporated by reference as Best
Available Science.
82. As part of the 2004 [comprehensive plan] update process, County staff and
consultants reviewed current Best Available Science and received a report entitled:
Christensen, D. 2004.[3] Review of Best Available Science for 2004
Comprehensive Plan and Development Regulations Update. September 22, 2004.
. . . .
89. Jefferson County Natural Resources Division and Jefferson County
Department of Community Development receive report Perkins, S.J. 2006. Final
Report. Channel Migration Hazard Maps for the Dosewallips, Duckabush, Big
Quilcene, and Little Quilcene Rivers, Jefferson County, Washington. Perkins
Geosciences, in February, 2006.
90. USDI Bureau of Reclamation September, 2004 Channel Migration Zone
Study Jefferson County, Washington[,] Duckabush, Dosewallips, Big Quilcene
and Little Quilcene Rivers. Technical Service Center Flood Hydrology Group D-
8530 Denver, Colorado, provides channel migration zone information.
91. A Framework for Delineating Channel Migration Zones, Washington
State Department of Ecology, Washington State Department of Transportation,
November, 2003. Ecology Final Draft Publication #03-06-027, provides channel
migration zone information.
Ordinance 03-0317-08, at 9-10. The ordinance stated that the Planning Commission, Department
of Community Development, and the BOCC had considered and evaluated the scientific literature
that the BOCC included in an attached 24-page bibliography and that the BOCC had developed
the regulations in former chapter 18.22 JCC by synthesizing this scientific literature. Ordinance
03-0317-08, at 17.
3 Dave Christensen is a former manager of the County's Natural Resources Division.
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B. The Foundation's Challenge to the 2008 Ordinance
On May 23, 2008, the Foundation, a nonprofit corporation, and seven of its members,4
challenged the 2008 ordinance by filing a petition for review with the Board. All seven members
named in the petition reside in the County, but the administrative record apparently does not
include any information about whether these members own property that is affected by the
County's vegetation regulation.
The Foundation raised 10 issues in its prehearing brief to the Board, but only 2 are
relevant in this appeal:
6. Did Jefferson County fail to comply with RCW 36.70A.172(1) [the GMA's
"best available science" provision] when it adopted JCC 18.22.170(4) by imposing
vegetation retention standards on all development in a "channel migration zone?"
. . . .
10. Did Jefferson County fail to comply with RCW 36.70A.172(1) and RCW
36.70A.370,[5] and fail to consider and balance planning goal 6 (RCW
36.70A.020(6) (property rights)) in adopting JCC 18.22.160-.180, which changes
existing development and uses into nonconforming uses?
1 Administrative Record (AR) at 158.6 The Foundation also suggested in its prehearing brief that
because the "best available science" did not support the vegetation regulations, these regulations
did not comply with "constitutional nexus and rough proportionality requirements." 1 AR at 169.
4 For ease of reference, we refer to the Foundation and the seven members as "the Foundation."
5 RCW 36.70A.370(1) orders the state attorney general to establish an "orderly, consistent
process" to evaluate proposed regulatory or administrative actions to assure that such actions do
not result in an unconstitutional taking of private property. Local governments must abide by this
process. RCW 36.70A.370(2).
6 1 AR is the administrative record pertaining to superior court cause number 08-2-02852-3 and 2
AR is the administrative record pertaining to superior court cause number 09-2-01897-6.
7
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Both parties attached numerous exhibits to their prehearing briefs, including the scientific
studies that the BOCC cited in findings 82, 89, 90, and 91 of the ordinance. The parties also
attached the following scientific information:
? 1 AR at 206-18 ("Channel Migration Zones," a chapter from King County's Best
Available Science, Volume 1 (Feb. 2004));
? 1 AR at 365-458 ("Lower Hoh River Channel Migration Study," by Perkins Geosciences
(June 2004));
? 1 AR at 627-635 ("Geology, geomorphology, and the restoration ecology of salmon," by
David R. Montgomery, University of Washington (Nov. 2004));
? 1 AR at 637-71 ("Channel Migration Hazard Maps for Eastern Jefferson County Rivers"
by Susan Perkins, Perkins Geosciences (2004)); and
? 1 AR at 705-708 ("Management Recommendations for Washington's Priority Habitats:
Riparian," Washington Department of Fish and Wildlife (DFW web page)).
C. Board's Final Decision and Order
On November 19, 2008, the Board issued a final decision and order rejecting the majority
of the Foundation's claims. With regard to issue six, the Foundation's "best available science"
challenge, the Board noted that the County had relied on the studies listed in the 24-page
bibliography attached to the ordinance -- including the Bureau of Reclamation's CMZ study, the
Department of Ecology's CMZ delineation study, and Perkins Geosciences's 2006 CMZ hazard
maps -- as the "best available science" to develop the critical areas regulations. The Board noted
that in its interpretation, the Foundation was not arguing that these scientific studies did not
constitute the "best available science" but, rather, that these studies did not support the adopted
vegetation regulation.
8
40272-6-II
The Board partly agreed with the Foundation on issue six, noting that although the
Department of Ecology's study (publication 03-06-027) and Perkins Geosciences's "Lower Hoh
River Channel Migration Study" addressed the importance of vegetation in the river environment,
the "best available science" did not support former JCC 18.22.170(4)'s blanket restriction on
vegetation removal throughout the entirety of the designated CMZs. The Board also expressed
concern that the regulation could be interpreted to prohibit vegetation removal on an entire parcel
of property even if only a portion of that parcel fell within a CMZ. In the Board's view, the
County should have limited vegetation removal only to the high-risk portions of CMZs:
The importance of vegetation in the fluvial environment has been well
documented, especially in regards to its significant role in erosion control, bank
stabilization, bank protection, and bank accretion.[7] Vegetation is also important
as it serves to provide the recruitment of large woody debris (LWD) which can
prevent bank erosion and serves to direct how and where a channel may migrate.[8]
However, [former JCC 18.22.170(4)] appears to limit the removal of vegetation
on the entirety of property containing a designated [geologically hazardous area]
or its buffer. For a CMZ this would be an area of varying width and risk
assessment. Although it is hard to ascertain from the Record presented to the
Board, this area may range in size from a hundred feet to thousands of feet.
Of concern to the Board is Jefferson County's apparent requirement to
retain vegetation regardless of the associated probability of risk which is not equal
within the entire mapped CMZ, let alone on the entirety of properties only a
portion of which are within a CMZ. That is, vegetation removal is not precluded
only within the high risk area. Thus, should a property owner be prohibited from
removing vegetation within a low risk area, or that portion of a property outside a
CMZ where the probability of channel occupation is slight or nonexistent? The
Board recognizes that as a river migrates it will naturally encompass areas which
may currently be classified as low risk; however, this alone does not warrant a
blanket restriction. Based on the scientific documentation's finding that vegetation
serves an important role within what would be deemed the highest risk area of a
7 Citing Ecology's publication 03-06-027, which discusses the importance of riparian vegetation
in providing habitat and limiting erosion.
8 Citing chapters 4 and 5 of the Perkins Geosciences's "Lower Hoh River Channel Migration
Study," which address, respectively, "Channel Migration" and "Forest Cover, Large Woody
Debris, and Channel Morphology."
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CMZ -- the area within which a river may move within the 50 year period -- the
County's limitation on vegetation removal as drafted is not supported by [the "best
available science"].
1 AR at 825. Accordingly, the Board ordered the County to take legislative action to bring itself
into compliance with the GMA.
The Board also rejected the Foundation's challenge with regard to issue 10, which
addressed the County's nonconforming use regulation, JCC 18.22.080.9 The Foundation had
challenged the scientific basis of the nonconforming use regulation under RCW 36.70A.172(1)
and had asserted that the regulation failed to comply with the planning goal of RCW
36.70A.020(6), which states, "The property rights of landowners shall be protected from arbitrary
and discriminatory actions." The Board concluded that "the same scientific evidence which
expounds the need to restrict development within CMZs applies to existing structures." 1 AR at
828. The Board also concluded that the County had considered private property rights during its
9 The nonconforming use regulation reads in its entirety:
(1) Any legal use or legal structure in existence on the effective date of [this
Chapter 18.22] that does not meet the buffer requirements of this chapter for any
designated critical area shall be considered a legal nonconforming use.
(2) Any use or structure for which an application has vested or for which a permit
has been obtained prior to the effective date of the ordinance codified in this
chapter, that does not meet the buffer requirements of this chapter for any
designated critical area, shall be considered a legal nonconforming use.
(3) A legal nonconforming use or structure may be maintained or repaired without
limitation by this chapter.
(4) A legal nonconforming use or structure that has been damaged or destroyed
by fire or other calamity may be restored and its immediately previous use may be
resumed.
JCC 18.22.080.
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enactment of the 2008 ordinance and that its action was not arbitrary or discriminatory.
II. 2009 Ordinance
On May 11, 2009, the BOCC adopted Ordinance 06-0511-09 (2009 ordinance) in
response to the Board's order. The 2009 ordinance amended the regulations in article V of
chapter 18.22 JCC in two significant ways. First, the ordinance amended the definition of "high
risk CMZs" to include "those nondisconnected portions" of five Jefferson County rivers (the Big
Quilcene, Little Quilcene, Dosewallips, Duckabush, and Lower Hoh) "that are likely to migrate
within a 50-year time frame."10 JCC 18.10.030. Second, the ordinance made all of article V's
protection standards applicable only to "[t]hose areas within the delineated high risk CMZ area"
and explicitly exempted moderately high, moderate, and low risk CMZs from the protection
standards. JCC 18.22.160(2)(d). The relevant protection standard now reads:
Within a high risk CMZ, vegetation removal shall not be allowed. Vegetation
removal outside of a high risk CMZ shall not be reviewed under this article.
Should this provision conflict with other vegetation retention requirements
specified within the JCC, the more restrictive protection requirement applies.
JCC 18.22.170(4)(d).
10 JCC 18.10.030's current classification scheme is as follows:
Type of CMZ Timeframe of Likely Rivers Affected
Channel Migration
High risk Within 50 years Big Quilcene, Little Quilcene,
Dosewallips, Duckabush, Lower Hoh
Moderately high risk Within 50 to 100 years Lower Hoh
Moderate risk Within 50 to 100 years Big Quilcene, Little Quilcene,
Dosewallips, Duckabush
Moderate hazard Beyond 100 yards Lower Hoh
Low risk Beyond 100 years Big Quilcene, Little Quilcene,
Dosewallips, Duckabush
Low hazard Not Defined Lower Hoh
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Additionally, section two of the 2009 ordinance stated that the BOCC incorporated all of
the 2008 ordinance's findings of fact. Therefore, according to the BOCC, the 2009 ordinance
"includes all best available Sciences literature that was submitted, considered, and evaluated by
citizens, agencies, tribes, the Planning Commissioners, Department of Community Development,
and the Board of County Commissioners." Ordinance 06-0511-09, at 6. The 2009 ordinance
stated, "The references listed in EXHIBIT A are considered the applicable literature to address
the November 19, 2008 Final Decision and Order issued by the [Board]." Ordinance 06-0511-09,
at 6. Exhibit A to the 2009 ordinance included the Bureau of Reclamation study referenced in
finding 90 of the 2008 ordinance, Perkins Geosciences's June 2004 "Lower Hoh River Channel
Migration Study," Perkins Geosciences's February 2006 CMZ Hazard Maps, and two other
studies by Perkins Geosciences that do not appear to be in the record.
On June 1, 2009, the County filed a statement of actions taken, which explained the above
amendments to article V of chapter 18.22 JCC. The Board concluded that the County had
achieved GMA compliance, stating:
[The Foundation] raises numerous objections which are beyond the scope
of the County's compliance requirements. Those requirements were relatively
simple: (1) address the discrepancy between the 100 year delineation of high-risk
CMZs in [former] JCC 18.22.160(2)(d) and the 50-year high-risk definition in the
["best available science"], and (2) address the vegetation removal preclusion
applicable to entire parcels when such a parcel includes a designated geologically
hazardous area or its buffer.
The County has accomplished compliance. By adopting the Ordinance, the
County . . . redefined channel migration zones and the levels of hazard risk were
clarified. JCC 18.10.030 provides the needed clarity to the definition of channel
migration zones or hazards. High Risk CMZs are now defined to be those areas
along the described rivers, together with those non-disconnected portions of the
channel, which are likely to migrate within a 50 year time frame.
The County also amended JCC 18.22.170(4)(d) so that vegetation removal
is only disallowed within high risk CMZs; not on entire parcels affected by high-
risk CMZs.
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40272-6-II
The Board did not, as asserted by [the Foundation], question the ["best
available science"] supporting the definition of high-risk CMZs. Thus, there is no
basis for [the Foundation's] assertion that the County was required to demonstrate
that it analyzed the differences in the CMZ studies in regards [to] CMZ
delineation. Furthermore, the lack of ["best available science"] supporting the
County's "adoption of a uniform standard for delineating high risk CMZs" was not
an issue on compliance.
[The Foundation's] assertion that the County's 100% vegetation
requirement is not supported by ["best available science"] was raised by [the
Foundation] in its Petition for Review (Issue 6). The Board addressed this issue in
the [final decision and order] and concluded only that a blanket restriction on
removal of vegetation that was not linked to the functions and values it was
intended to protect was not supported by ["best available science"]. That blanket
restriction applied to the entirety of a property containing a designated CMZ or its
buffer. The Board's concern was the retention requirement's applicability
regardless of the associated probability of risk, which would not be equal within
the entire CMZ, let alone on the entirety of a property only a portion of which was
within the CMZ. There was no question that the ["best available science"] in the
record supported a vegetation removal limitation so long as it was related to the
probability of risk. The County has addressed the Board's concern by limiting the
requirement to high risk CMZs alone.
2 AR at 180-81 (footnotes omitted).
III. Superior Court Review
The Foundation sought review of both the Board's final decision and order and the
Board's compliance order in Thurston County Superior Court. The superior court consolidated
review and denied the Foundation's petition, concluding in relevant part that the Foundation had
failed to prove that the vegetation regulation was not supported by the "best available science" or
that the vegetation regulation violated RCW 82.02.020. The Foundation appealed.11 We issued
an opinion. The Foundation moved to reconsider and we withdrew our prior opinion.
11 The Port Gamble S'Klallam Tribe, the Jamestown S'Klallam Tribe, and Futurewise participated
below as amici curiae in support of the County. We denied a motion by the tribes and Futurewise
to intervene and file an amicus brief in this appeal.
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ANALYSIS
I. Judicial Review, Deference, and Burden of Proof in GMA Cases
The Board adjudicates compliance with the GMA and must find compliance unless a
county's action is clearly erroneous. See RCW 36.70A.280(1)(a), .320(3). The Board presumes
the validity of development regulations and related amendments that a county adopts under the
GMA. See RCW 36.70A.320(1). A county's action is clearly erroneous if the Board has a firm
and definite conviction that the county made a mistake. Thurston County v. W. Wash. Growth
Mgmt. Hearings Bd., 164 Wn.2d 329, 340-41, 190 P.3d 38 (2008).
The Administrative Procedure Act (APA), chapter 34.05 RCW, governs our review of the
Board's actions. Thurston County, 164 Wn.2d at 341; see also RCW 36.70A.300(5). Under the
APA, the party asserting the invalidity of agency action has the burden of demonstrating the
invalidity. RCW 34.05.570(1)(a). The Foundation asserts that two of the APA's nine possible
grounds for relief from an agency order apply here:
"(a) The order, or the statute or rule on which the order is based, is in
violation of constitutional provisions on its face or as applied; [and]
. . . .
(d) The agency has erroneously interpreted or applied the law."
See Petitioner's Br. at 8 (alterations in original) (quoting RCW 34.05.570(3)).
We sit in the same position as the trial court and apply the APA standards directly to the
administrative record before the Board. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd.,
157 Wn.2d 488, 497, 139 P.3d 1096 (2006). Thus, like the Board, we defer to the county's
planning action unless the action is clearly erroneous. See Quadrant Corp. v. Cent. Puget Sound
Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005); RCW 36.70A.320(3);
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see also RCW 36.70A.3201.
II. "Include the Best Available Science"
In 1995, the legislature added the following provision to the GMA:
In designating and protecting critical areas under this chapter, counties and cities
shall include the best available science in developing policies and development
regulations to protect the functions and values of critical areas. In addition,
counties and cities shall give special consideration to conservation or protection
measures necessary to preserve or enhance anadromous fisheries.
RCW 36.70A.172(1) (emphasis added); Laws of 1995, ch. 347, § 105. As our Supreme Court
has observed, the legislature did not define "best available science." Ferry County v. Concerned
Friends of Ferry County, 155 Wn.2d 824, 834, 123 P.3d 102 (2005) (citing RCW 36.70A.030,
.172(1)). Nor did the legislature explain what it means for a local government to "include" the
"best available science."
In the Foundation's view, RCW 36.70A.172(1) requires a county to "create a record
demonstrating that it engaged in a reasoned process of evaluating the 'best available science'
when it develops critical area regulations." Petitioner's Br. at 1-2. Significantly, the Foundation
does not appear to argue that the scientific studies in the administrative record should not be
considered the "best available science."12 Instead, the Foundation's argument turns on the
meaning of the word "include." The Foundation contends that it is not enough for local
governments to merely reference relevant scientific studies during the critical areas regulatory
process; rather, local governments must explain how these studies support the adopted critical
12 The Foundation does not, for example, assert that the scientific studies in the record suffer from
faulty methodologies, insufficient peer review, illogical conclusions, poor quantitative analysis, or
other defects that taint the scientific process. See WAC 365-195-905(5)(a) (establishing criteria
for determining whether information displays the characteristics of a valid scientific process).
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40272-6-II
areas policy or regulation. Accordingly, in this case, the Foundation argues that the Board
committed an error of law under RCW 34.05.570(3)(d) by concluding that the County had
complied with RCW 36.70A.172(1) without requiring the County to explain how the studies in
the administrative record supported the vegetation regulation.13
The County responds that "where a GMA enactment reflects scientifically respectable
conclusions, mere disagreement by a petitioner as to which studies and opinions should be relied
upon is not a basis to set aside the County's judgment." Resp't's Br. at 13. The County also
points to specific information in the administrative record which, the County argues, provides
scientific support for the vegetation regulation. We agree with the Board's conclusion that the
County complied with RCW 36.70A.172(1).
A. Standard of Review
The resolution of this dispute involves a question of statutory interpretation, which we
review under the APA's error of law standard. RCW 34.05.570(3)(d); Postema v. Pollution
Control Hearings Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). We accord substantial weight to
the Board's interpretation of a statute that it administers. Swinomish Indian Tribal Cmty. v. W.
Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 424, 166 P.3d 1198 (2007). We do not,
however, defer to an agency's interpretation of a statute if that interpretation conflicts with the
statute.14 Postema, 142 Wn.2d at 77.
13 As part of its challenge, the Foundation assigns error to conclusions of law K and M. However,
because the Foundation does not argue in its briefing before us, as it did below, that the County
cannot designate CMZs as a type of critical area under the GMA, we do not address those
portions of conclusions of law K and M related to the designation issue.
14 The Foundation argues that a de novo standard of review applies to APA challenges under
RCW 34.05.570(3)(d). See Petitioner's Br. at 8 (citing City of Redmond v. Cent. Puget Sound
Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998)). But even the case that
16
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B. Concerned Friends of Ferry County v. Ferry County
Our Supreme Court's most extensive discussion of what it means to "include the best
available science" occurred in Concerned Friends of Ferry County. See 155 Wn.2d at 834-38. In
that case, Ferry County listed only two species of fauna as endangered, threatened, or sensitive.
Concerned Friends of Ferry County, 155 Wn.2d at 829. To support its action, the county relied
only on the listing recommendation of a retired Alaska Department of Fish and Game wildlife
planner. Concerned Friends of Ferry County, 155 Wn.2d at 829, 836-37. That planner, in turn,
had based his listing recommendation on only a few sources: a book about bird breeding
locations, "various other field guides and wildlife texts," and a conversation with a Washington
Department of Fish and Wildlife biologist for Ferry County about the distribution of a single
rabbit species. Concerned Friends of Ferry County, 155 Wn.2d at 829. By choosing to list only
two species, Ferry County rejected the Department of Fish and Wildlife's suggested listing of 12
endangered, threatened, or sensitive species present in the county. Concerned Friends of Ferry
County, 155 Wn.2d at 828. In a compliance order, the Board stated that the County had not
complied with RCW 36.70A.172 by listing only two species because it did not provide "'a
scientific foundation, evidence of analysis, or a reasoned process to justify their listing, while
rejecting the recommendations of endangered, threatened and sensitive species and wildlife
conservation areas provided by DFW.'" Concerned Friends of Ferry County, 155 Wn.2d at 830.
Our Supreme Court agreed with the Board, holding that substantial evidence15 supported
the Foundation cites to support the de novo standard of review supports deference here. See City
of Redmond, 136 Wn.2d at 46 ("We accord deference to an agency interpretation of the law
where the agency has specialized expertise in dealing with such issues, but we are not bound by an
agency's interpretation of a statute.").
15 The APA directs courts to grant relief from an administrative order when substantial evidence
17
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the Board's order. Concerned Friends of Ferry County, 155 Wn.2d at 826, 838-39. The court
noted that although the legislature had not defined what it meant to "include the best available
science," the growth management hearings boards had, by the time of the Board's compliance
order, "formulated considerations for determining whether [best available science] was included."
Concerned Friends of Ferry County, 155 Wn.2d at 834. Specifically, the boards "at least
required local governments to produce valid scientific information and consider competing
scientific information and other factors through analysis constituting a reasoned process."
Concerned Friends of Ferry County, 155 Wn.2d at 835.
Notably, our Supreme Court declined to adopt a precise definition for "best available
science," concluding that Ferry County's ordinance failed to comply with this GMA requirement
"[r]egardless of the precise definition of [best available science] applied." Concerned Friends of
Ferry County, 155 Wn.2d at 836; see also 155 Wn.2d at 837 ("the county's listing does not pass
the smell test for [best available science] regardless of how it is defined"). Apart from concluding
that the wildlife planner's information did not "rise to the level of scientific information,"16 our
Supreme Court observed that the county's analysis of the wildlife planner's information did not
constitute a "reasoned process":
The county directs us to no evidence of it evaluating the science produced by [the
wildlife planner]. Nor is there sufficient evidence of the county's comparing
does not support the order. RCW 34.05.570(3)(e).
16 The court concluded that the information was not "scientific" because (1) nothing in the
planner's background suggested that he was familiar with Ferry County wildlife, (2) he cited only
two reference sources -- a birding manual and his discussion with the DFW biologist about a single
species -- to support his listing recommendation, and (3) he did not employ any other scientific
methods, like on-site observations or conferring with local experts. Concerned Friends of Ferry
County, 155 Wn.2d at 836-37. Instead, the information provided by the wildlife planner
"resemble[d] nonscientific information . . . more similar to speculation or surmise." Concerned
Friends of Ferry County, 155 Wn.2d at 837.
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science provided by [the wildlife planner] to any other resources, such as science
available from state or federal agencies or the Colville Tribe.
Concerned Friends of Ferry County, 155 Wn.2d at 836, 837; see also Honesty in Envtl. Analysis
& Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522,
532, 979 P.2d 864 (1999) ("[E]vidence of the best available science must be included in the
record and must be considered substantively in the development of critical areas policies and
regulations." (Emphasis added).).
Finally, our Supreme Court also observed that the Department of Commerce17 had
adopted regulations to help local governments comply with the GMA's "best available science"
requirement. Concerned Friends of Ferry County, 155 Wn.2d at 835 n.9 (citing WAC 365-195-
900 through -925). Although the court did not apply those regulations to Ferry County's actions
because the Department of Commerce had issued the regulations after the Board's compliance
order in that case, the court observed that "the Board made inquiries similar to the considerations
now recommended by WAC 365-195-900 through -925, requiring valid scientific information to
be analyzed in a reasoned process." Concerned Friends of Ferry County, 155 Wn.2d at 835 n.9.
The court noted, "Fortunately, hearings boards making similar determinations will have greater
guidance in the future with the benefit of WAC 365-195-900 through -925." Concerned Friends
of Ferry County, 155 Wn.2d at 838-39.
C. The County Complied with the GMA's "Best Available Science" Requirement
As in Concerned Friends of Ferry County, the question here is whether the County
17 Until 2009, the Department of Commerce was called the Department of Community, Trade,
and Economic Development. See Laws of 2009, ch. 565. We use the agency's current name for
ease of future reference.
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"include[d] the best available science" under RCW 36.70A.172(1) when it enacted the challenged
regulation. This case presents us with a situation in which the County identified numerous
scientific studies that it relied on in adopting the vegetation regulation but did not explicitly
analyze on the record how these studies supported its decision to prohibit vegetation removal in
high-risk CMZs adjacent to five county rivers. We agree with the Board that the County
complied with RCW 36.70A.172(1)'s "best available science" requirement.
We must first determine what it means to "include the best available science." Because we
defer to an agency's interpretation of a statute that it administers, we turn to the relevant
Department of Commerce18 regulations, which our Supreme Court identified in Concerned
Friends of Ferry County. See 155 Wn.2d at 835 n.9, 838-39; WAC 365-195-900 through -925.
The Foundation does not cite or discuss these regulations, and the County mentions them only in
passing. Nevertheless, as the Concerned Friends of Ferry County court recognized, these
regulations are the proper starting point for determining whether a county has complied with
RCW 36.70A.172(1)'s "best available science" requirement. See 155 Wn.2d at 835 n.9, 838-39.
The Department of Commerce promulgated these regulations in 2000 to "assist counties
and cities in identifying and including the best available science in newly adopted policies and
regulations . . . and in demonstrating they have met their statutory obligations under RCW
36.70A.172(1)." WAC 365-195-900(2). Most relevant here, WAC 365-195-915 includes
18 The legislature has provided rulemaking authority to the Department of Commerce to "[a]dopt[
] by rule procedural criteria to assist counties and cities in adopting comprehensive plans and
development regulations that meet the goals and requirements of [the GMA]." RCW
36.70A.190(4)(b). The legislature directed the growth management hearings boards to consider
these criteria when determining whether a county has complied with the GMA. RCW
36.70A.320(3).
20
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criteria to assist counties in demonstrating that they have "included the best available science" in
developing critical areas policies and regulations. Counties "should address each of the following
on the record":
21
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(a) The specific policies and development regulations adopted to protect the
functions and values of the critical areas at issue.
(b) The relevant sources of best available scientific information included in the
decision-making.
(c) Any nonscientific information -- including legal, social, cultural, economic, and
political information -- used as a basis for critical area policies and regulations that depart
from recommendations derived from the best available science.
WAC 365-195-915(1).
We agree with the Board that the County addressed "[t]he relevant sources of best
available scientific information included in the decision-making" on the record, as WAC 365-195-
915(1)(b) requires. As the Board observed, the BOCC's 2008 ordinance specifically identified a
24-page bibliography of scientific literature that the BOCC evaluated in order to develop the
critical areas regulations. See Ordinance 03-0317-08, at 17, Ex. A. Additionally, the findings in
the 2008 ordinance singled out detailed studies and reports by the Department of Ecology, the
Bureau of Reclamation, Perkins Geosciences, and a former manager of the County's natural
resources division. Ordinance 03-0317-08, at 9-10. The 2009 ordinance incorporated these
findings and cited additional studies and maps by Perkins Geosciences as the scientific basis for
addressing the Board's final decision and order. Finally, as the Board recognized, these studies
and reports discuss, in part, the specific value at issue here: the importance of vegetation in the
river environment "especially in regards to its significant role in erosion control, bank
stabilization, bank protection, and bank accretion." 1 AR at 825.
We do not read Concerned Friends of Ferry County as imposing a duty on a county to
describe each step of the deliberative process that links the science that it considers to the adopted
policy or regulation. Nor does the relevant Department of Commerce regulation impose such a
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duty -- rather, it requires that counties "address . . . on the record . . . [t]he relevant sources of
best available scientific information included in the decision-making." WAC 365-195-915(1)(b).
Here, because the County complied with this requirement, we conclude that the Board correctly
applied RCW 36.70A.172(1).
III. RCW 82.02.020
The Foundation next appears to argue that the County's vegetation regulation is "invalid
on its face" because it violates the "constitutional nexus and rough proportionality test" embodied
in RCW 82.02.020.19 Petitioner's Br. at 28-29. We hold that the County has demonstrated that
the land dedication requirement of the CMZ regulation is "reasonable necessary" as a direct result
of any development within any high-risk CMZ.
A. Standard of Review
The APA standards apply. Thus, we review the Board's order as it applies to the
Foundation's argument to determine whether "[t]he order, or the statute or rule on which the
19 RCW 82.02.020 generally provides, with some exceptions, that the state preempts the field of
imposing certain taxes:
[N]o county . . . shall impose any tax, fee, or charge, either direct or indirect, on the
construction or reconstruction of residential buildings, commercial buildings, industrial
buildings, or on any other building or building space or appurtenance thereto, or on the
development, subdivision, classification, or reclassification of land. However, this section
does not preclude dedications of land or easements within the proposed development or
plat which the county . . . can demonstrate are reasonably necessary as a direct result of
the proposed development or plat to which the dedication of land or easement is to apply.
See also Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 753, 49 P.3d 867
(2002). We note that the legislature has twice amended the language in the introductory
paragraph of RCW 82.02.020 since the BOCC enacted the 2008 ordinance. Laws of 2009, ch.
535, § 1103; Laws of 2008, ch. 113, § 2. Because these amendments do not affect our analysis,
we cite to the current version of the statute for ease of future reference.
23
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order is based, is in violation of constitutional provisions on its face or as applied" and whether
the Board "has erroneously interpreted or applied the law." RCW 34.05.570(3)(a), (d). We
review questions of statutory construction under the APA's error of law standard. RCW
34.05.570(3)(d); Postema, 142 Wn.2d at 77.
B. Board's Treatment of Issue
In its briefs before the Board, the Foundation did not cite RCW 82.02.020, but did briefly
discuss the "constitutional nexus and rough proportionality requirements" in its prehearing brief in
the context of another argument not raised on appeal. Additionally, in its prehearing brief, the
Foundation specifically tied its "constitutional nexus and rough proportionality" argument to the
GMA's "best available science" provision. Because the Board interpreted the Foundation's nexus
and rough proportionality arguments as constitutional claims, it declined to address them. See
RCW 36.70A.280(1) (limiting the Board's jurisdiction to specific matters). The Board did not
address RCW 82.02.020 because the Foundation did not cite or discuss it.
C. Failure to Show a Violation of RCW 82.02.02020
The Foundation argues that the vegetation regulation violates RCW 82.02.020. We
assume without deciding that the issues are properly before us21 and hold that the CMZ regulation
20 In our withdrawn opinion, we held that any challenge raised by the Foundation based on a
takings argument under the Fifth Amendment of the United States Construction was not ripe.
U.S. Const. amend. V; see also Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S.
226, 239, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (Fifth Amendment's takings clause applies to the
states through the Fourteenth Amendment). Upon reconsideration, we note that no Fifth
Amendment takings claim was brought by the Foundation, either at the Board level or here on
appeal. It is clear from the briefing on appeal that the Foundation brought only a statutory claim
under RCW 82.02.020, similar arguments raised in Citizens' Alliance for Property Rights v. Sims,
145 Wn. App. 649, 187 P.3d 786 (2008), review denied, 165 Wn.2d 1030 (2009). While that
statute incorporates the standard for a Fifth Amendment takings challenge, we decline to address
a takings challenge where none was raised by the Foundation.
24
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does not violate RCW 82.02.020.
RCW 82.02.020 directs that generally, "no county, city, town, or other municipal
corporation shall impose any tax, fee, or charge, either direct or indirect, on the . . . development
. . . of land." See also Citizens' Alliance for Property Rights v. Sims, 145 Wn. App. 649, 656,
187 P.3d 786 (2008), review denied, 165 Wn.2d 1030 (2009). RCW 82.02.020 applies to
development conditions adopted pursuant to the GMA. Citizens' Alliance, 145 Wn. App. at 663.
It does not, however, preclude dedications of land or easements within the proposed development
or plat which the county, city, town, or other municipal corporation can demonstrate are
reasonably necessary as a direct result of the proposed development or plat to which the
dedication of land or easement is to apply. RCW 82.02.020. In other words, it requires that
development conditions be tied to a specific, identified impact of a development on a community.
Citizens' Alliance, 145 Wn. App. at 665. RCW 82.02.020 requires both a nexus
21 In our withdrawn opinion, we held that the Foundation had failed to preserve this issue by not
raising it at the hearing before the Board. Slip op. at 25. Upon reconsideration, we note that the
Board lacks the jurisdictional authority to decide claims alleging a violation of property rights,
including a violation of RCW 82.02.020. See, e.g., Citizens for Rational Shoreline Planning v.
Whatcom County, No. 08-2-0031, at 8-9 (W. Wash. Growth Mgmt. Hearings Bd. Decision and
Order Jan. 16, 2009) (finding Growth Management Hearings Boards do not have jurisdiction to
address issues related to chapter 82.02 RCW); Whidbey Envt'l. Action Network v. Island County,
No. 06-2-0023, at 8 (W. Wash Growth Mgmt. Hearings Bd. Decision and Order Jan. 24, 2007).
We also note, however, that no party raised the issue of whether the Foundation's claim regarding
RCW 82.02.020 was properly brought in this forum. We question whether the claim is properly
raised here. Specifically, we question whether the claim could only be brought as a separate
superior court action, whether the claim is ripe where the Foundation has not proposed a specific
development, whether the Foundation has standing to assert the claim, and whether a hearing
before the Board pursuant to the GMA is the proper forum to raise a challenge under the statute.
Because neither party raised these issues, we will resolve this question on the merits. RAP
12.1(a).
25
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and rough proportionality22 for a dedication of land to meet the requirements of RCW 82.02.020.
Citizens' Alliance, 145 Wn. App. at 669-70; see also City of Federal Way v. Town & Country
Real Estate, LLC, 161 Wn. App. 17, 45, 252 P.3d 382 (2011) ("RCW 82.02.020 contains the
same kind of 'rough proportionality' analysis embodied in the Nollan/Dolan standard.").
The Foundation contends that the CMZ regulation is invalid on its face because the
County cannot meet the nexus and proportionality test. Petitioner Br. at 29. The Foundation
relies on Isla Verde International Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 49 P.3d 867
(2002) and Citizens Alliance, 165 Wn.2d 649, for this contention. Those cases are
distinguishable.
In Isla Verde, a developer sought review under the Land Use Petition Act (LUPA) of
certain conditions placed on the approval of a preliminary plat for a proposed subdivision in the
City of Camas. 146 Wn.2d at 745-46. The challenged conditions included a 30 percent "open
space" set aside. Isla Verde, 140 Wn.2d at 745. The trial court held that the open space set aside
violated RCW 82.02.020 because the City made no individualized determination that the 30
percent set aside requirement was necessary to mitigate an impact of the development, the
22 The "nexus" and "rough proportionality" tests are also called the "Nollan/Dolan" tests, after
the United States Supreme Court's decisions in Nollan v. California Coastal Commission, 483
U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374,
114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). The Nollan majority held that the United States
Constitution's Fifth Amendment "takings clause" requires an "essential nexus" between the
negative impacts that a private property use generates and the conditions or prohibitions imposed
to restrict that use of private property. 483 U.S. at 827, 837. Seven years later, the United States
Supreme Court announced in Dolan that the "takings clause" contains a "rough proportionality"
test requiring the government to "make some sort of individualized determination that the
required dedication [of private land] is related both in nature and extent to the impact of the
proposed development." 512 U.S. at 391.
26
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condition was disproportionate to the impact caused by the subdivision, and the City had not
established a need for additional open space within the city limits as a result of the proposed
development. Isla Verde, 146 Wn.2d at 755. The Supreme Court affirmed. Isla Verde, 146
Wn.2d at 765.
In Citizens' Alliance, the King County ordinance at issue limited the amount of space to
be cleared on each lot according to the size of the lot. 145 Wn. App. at 654. The amount of land
to be reserved had no relation to the impacts of the proposed development. Citizens' Alliance,
145 Wn. App. at 668. For that reason, the ordinance constituted an unlawful in-kind tax.
Citizens' Alliance, 145 Wn. App. at 672.
In contrast, in Trimen Development Co. v. King County, 124 Wn.2d 261, 275, 877 P.2d
187 (1994), our supreme court held that a King County ordinance requiring dedication of open
recreational space, or payment of a fee in lieu thereof, for final approval of proposed subdivisions
was lawful under RCW 82.02.020 because it determined the amount of land to be dedicated (or
fee) based on King County's comprehensive assessment of its park needs and on its annual growth
report.
This case is distinguishable from Isla Verde and Citizens' Alliance. In those cases, the
ordinances required all property owners to set aside a portion of their land as open space, whether
or not the land in question contained critical areas. See Isla Verde, 146 Wn.2d at 746-47;
Citizens' Alliance, 165 Wn.2d at 668. Here, the County has only prohibited vegetation removal
and development within those areas that have determined to be "high risk" critical areas.
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As a result, any dedications of land within the critical areas are de facto "reasonably necessary as a
direct result of the proposed development or plat." RCW 82.02.020. In fact, as discussed
above, the County put forth the "best available science" as required by RCW 36.70A.172(1) to
show that the CMZ regulation is necessary where applied. Where "best available science"
provides a scientific basis for restricting development and disturbance within a critical area, the
science ensures that the nexus and proportionality tests are met. See, e.g., HEAL, 96. Wn. App.
533 ("[T]he policies and regulations adopted under GMA must comply with the nexus and rough
proportionality limits the United States Supreme Court has placed on governmental authority to
impose conditions on development applications." (Footnotes omitted.)). As the Board stated, the
vegetation at issue has a "significant role in erosion control, bank stabilization, bank protection,
and bank accretion." 1 AR at 825. No property owner is required to provide the public with a
benefit not immediately related to ensuring the continued function of that vegetation. The
Foundation's challenge to the CMZ regulation based on RCW 82.02.020 fails.
IV. Nonconforming Use Regulation
Finally, the Foundation challenges the legality of the County's nonconforming use
regulation, JCC 18.22.080, which the County adopted as part of the 2008 critical areas ordinance.
The Foundation asserts that JCC 18.22.080 fails to comply with the legislature's 2010 retroactive
amendment to RCW 36.70A.480, a GMA provision that relates to shorelines. See Laws of 2010,
ch. 107, § 1(4), § 2.
28
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RCW 34.05.554(1)(d)23 permits a party to raise a new issue on appeal if "The interests of
justice would be served by resolution of an issue arising from . . . (i) A change in controlling law
occurring after the agency action." The remedy is to remand to the agency for determination.
RCW 34.05.554(2).
Here, justice does not require consideration of the Foundation's argument based on the
amendment to RCW 36.70A.480. The administrative record has not been developed as to this
issue. A published decision from this court already exists clarifying the impact of the amendment
on the law, although it does not address the specific issue raised by the Foundation. See Kitsap
Alliance of Property Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 160 Wn. App.
250, 255 P.3d 696, review denied, 171 Wn.2d 1030 (2011), petition for cert. filed, No. 11-457
(U.S. Oct. 10, 2011). The Foundation asserts no reason why it would be unjust to require it to
initiate a new administrative proceeding to consider this question.24 We decline to remand this
23 RCW 34.05.554 states, in its entirety:
(1) Issues not raised before the agency may not be raised on appeal, except to
the extent that:
(a) The person did not know and was under no duty to discover or
could not have reasonably discovered facts giving rise to the issue;
(b) The agency action subject to judicial review is a rule and the person
has not been a party in adjudicative proceedings that provided an adequate
opportunityto raise the issue;
(c) The agency action subject to judicial review is an order and the
person was not notified of the adjudicative proceeding in substantial compliance
with this chapter; or
(d) The interests of justice would be served by resolution of an issue
arising from:
(i) A change in controlling law occurring after the agency action; or
(ii) Agency action occurring after the person exhausted the last feasible
opportunityfor seeking relief from the agency.
(2) The court shall remand to the agency for determination any issue that is
properly raised pursuant to subsection (1) of this section.
29
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case to the Board for further consideration.
We affirm the Board's final decision and order and its subsequent compliance order.
Penoyar, C.J.
We concur:
Armstrong, J.
Quinn-Brintnall, J.
24 Also, as asserted by the County, this issue may not be ripe, as "[t]here is no evidence that
Jefferson County is improperly applying nonconforming use regulations to shoreline
development." Response to Mot. for Recons. at 10.
30
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