### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FUTUREWISE and PILCHUCK AUDUBON SOCIETY, DIVISION ONE

Appellants, No. 79663-1-I
v. OPINION PUBLISHED IN PART SNOHOMISH COUNTY and THE GROWTH MANAGEMENT HEARINGS FILED: July 15, 2019 BOARD, Respondents. DWYER, J.

— Following the 2014 Oso landslide, Snohomish County updated its regulations designating and protecting critical areas, including geologically hazardous areas (GHA5) such as landslide hazard areas. Futurewise and the PilchuckAudubon Society (collectively Futurewise) believe thatthe County’s regulations fail to meetthe requirements ofthe Growth ManagementAct (GMA), codified primarily in chapter 36.70A RCW. Futurewise challenged the County’s new regulations before the Growth Management Hearings Board, butthe Board concluded thatthe majority ofthe regulations complied with the GMA. On appeal, Futurewise seeks reversal ofthe Board’s decision to uphold the regulations. Futurewise asserts thatthe County’s new regulations fail to protectthe public health and safetyfrom GHAs as required bythe GMA and thatthe Board erred when it concluded that Futurewise presented inadequate briefing on certainNo. 79663-1 -1/2

issues and deemed those issues abandoned. We disagree. The GMA does not mandate that local governments considerthe protection ofthe public health and safetywhen developing critical area regulations, and the Board did not errwhen it concluded that Futurewise had abandoned several issues by presenting inadequate briefing to the Board.1 We affirm.
Following the Oso landslide in 2014, the Snohomish County Council adopted Amended Ordinance 15-034 (Ordinance 15-034) on September2, 2015, updating its critical area regulations. The Ordinance amended sections ofthe Snohomish County Code (SCC) pertaining to wetlands and fish and wildlife habitat conservation areas (chapter30.62A SCC), geologically hazardous areas (chapter30.62B SCC), and critical aquifer recharge areas (CARA5) (chapter 30.62C SCC). Futurewise and the Tulalip Tribes challenged Ordinance 15-034 and the amended regulations protecting critical areas before the Board. The Board subsequently concluded that Futurewise and the Tulalip Tribes failed to meet their burden to establish the invalidity ofthe challenged regulations except as to
one issue not pertinentto this appeal.2 Most pertinentto this appeal are the Board’s conclusions that (1) the GMA does not mandate thatthe County consider the public health and safetywhen developing critical area regulations, and (2) that Futurewise abandoned all issues setforth under“Issue C-i”in its briefing

1 In the unpublished portion ofthis opinion we address several additional assignments of error presented by Futurewise, none ofwhich merit appellate relief.

2 The Tulalip Tribes are not a party to this appeal.
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beforethe Board because it presented inadequate argument linking the County’s regulations to specificviolations ofthe GMA. Afterthe Board reached its decision, Futurewise appealed to the Thurston County Superior Court, which affirmed the Board’s decision in a brieforder. Futurewisetimely appealed to Division Two, which transferred the matter to us fordecision.

Futurewise’s primary contention on appeal is thatthe Board erred by concluding thatthe GMA does not require local governments to considerthe protection, against GHAs, ofthe public health and safetywhen developing critical
area regulations. This is so, Futurewise asserts, because RCW36.70A.030(1O) defines GHA5 as “areas that because oftheirsusceptibilityto erosion, sliding, earthquake, orothergeological events, are not suited to the siting ofcommercial, residential, or industrial development consistentwith public health orsafety concerns.” According to Futurewise, the Board’s conclusion thatthe GMA does not require local governments to considerthe protection ofthe public health and safetyduring the development ofcritical area regulations improperlywrites “consistentwith public health orsafety concerns” out ofthe statutory definition of GHAs. In response, the County asserts that RCW36.70A.030(1O) does notset forth any affirmative mandate to considerthe public health and safety during the development ofcritical area regulations. Instead, the County asserts that RCW 36.70A.172(1) setsforth the requirements forcounties and cities when

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developing regulations and thatthis statute does not require consideration ofthe public health and safety. The County has the betterargument. A Our reviewofdecisions bythe Growth Management Hearings Board is governed bythe Washington Administrative Procedure Act, chapter34.05 ROW (APA). Kittitas Countyv. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144, 155, 256 P.3d 1193 (2011). We reviewthe Board’s decision directly, ratherthan reviewing the decision ofthe superior court. King Countyv. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). ‘Under thejudicial review provision ofthe APA, the ‘burden ofdemonstrating the invalidity of [the Board’s decision] is on the party asserting invalidity.” Thurston Countyv. Cooper PointAss’n, 148 Wn.2d 1, 7-8, 57 P.3d 1156 (2002) (alteration in original) (quoting ROW 34.05.570(1 )(a)). We review issues of law de novo. Thurston Countyv. W. Wash. Growth Mgmt. Hearings Bd., 164Wn.2d 329, 341, 190 P.3d 38(2008). We accord substantial weightto the Board’s interpretation ofthe GMA, butwe are not bound bythe Board’s interpretations. Thurston County, 164 Wn.2d at 341. Any deference we showto the Board’s interpretations, however, is superseded bythe deference both we and the Board must showto county planning actions. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). Additionally, we will not deferto the Board’s interpretations ofthe GMAwhere the Board’s interpretation expandsthe scope of

4No. 79663-1-115

its own authority. See Ma’ae v. Dep’t of Labor & Indus., 8 Wn. App. 2d 189, 197, 438 P.3d 148 (2019). The Board’s decision must be supported by substantial evidence, which requires thatthere be “‘a sufficientquantity ofevidence to persuade a fair-minded person ofthe truth or correctness ofthe order.” Kittitas County, 172 Wn.2d at 155 (internal quotation marks omitted) (quoting Thurston County, 164 Wn.2d at 341). “On mixed questions of law and fact, we determine the law independently, then apply itto the facts as found” bythe Board. Cooper PointAss’n, 148 Wn.2d at 8 (citing Hamel v. Emp’t Sec. Dep’t, 93 Wn. App. 140, 145, 966 P.2d 1282 (1998)). “A county has broad discretion underthe GMA in creating development regulations tailored to local circumstances.” Yakima Countyv. E. Wash. Growth Mgmt. Hearings Bd., 168 Wn. App. 680, 691, 279 P.3d 434 (2012) (citing Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 430, 166 P.3d 1198 (2007)). When a party challenges a county’s regulations underthe GMA, the Board mustfind compliance unless the challenged regulations are clearly erroneous in view ofthe entire record and the goals and requirements ofthe GMA. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157Wn.2d 488, 497, 139 P.3d 1096 (2006) (citing RCW 36.70A.320(3)). “Tofind an action ‘clearly erroneous,’ the Board must have a ‘firm and definite conviction thata mistake has been committed.” Lewis County, 157Wn.2d at497 (citing Dep’t of Ecologyv. Pub. Util. Dist. No. 1 ofJefferson

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County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993), affd, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994)). B Futurewise contends that several ofthe County’s updated critical area regulations do not complywith the GMA because theywere developed without considering the protection ofthe public health and safetyfrom critical areas. But Futurewise fails to identify any provision ofthe GMAthat sets forth such a requirement. Instead, Futurewise asserts that byfailing to considerthe public health and safetywhen developing critical area regulations, the County ignored the definition ofGHA5 setforth in RCW36.70A.030(1 0)—which specifies that GHAs are areas “not suited to the siting ofcommercial, residential, or industrial development consistentwith public health orsafety concerns.” According to Futurewise, this definition requires the Countyto considerthe protection ofthe public health and safetyfrom GHAs when developing critical area regulations. Local governments subjectto the GMA are required to “adopt development regulations that protect critical areas” designated under RCW 36.70A.170. RCW36.70A.060(2). The GMAfurtherspecifies that “[i]n designating and protecting critical areas underthis chapter, counties and cities shall include the best available science in developing policies and development regulations to protectthe functions and values ofcritical areas.” RCW 36.70A.172(1). This provision sets forth the affirmative obligation the GMA places on counties developing critical area regulations to protect critical areas’ “functions and values,” and it does not include any requirementthat counties

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considerthe public health and safetywhen developing critical area regulations.3 Indeed, when interpreting the requirements of RCW 36.70A.172(1), our Supreme Court has analyzed the statute as requiring the protection ofcritical areas themselves, ratherthan anything external to critical areas, such asthe public health orsafety. See Swinomish, 161 Wn.2d at427-28 (concluding thata no harm regulation setting the baseline for measuring harm as the current condition ofcritical areas complied with the GMA because the word protect in RCW 36.70A.172 required onlythe prevention offurther harm to critical areas, rather than the enhancement ofalready damaged critical areas).4 Furthermore, Futurewise’s argument ignores longstanding Board precedent establishing that GMA definitions do not, bythemselves, create any GMA duties. Hanson v. King County, No. 98-3-001 5c, 1 998 WL 990439, at *6.7 (Wash. Cent. Puget Sound Growth Mgmt. Hrgs Bd. Dec. 16, 1998) (Final Decision and Order). In fact, the Board has previously applied this general rule specificallyto determine thatthe GMA does not require local governmententities to considerthe public health and safetywhen developing critical area regulations.5 Audubon Soc’yv. Pierce County, No. 05-3-0004c, 2005 WL

~ Futurewise appears to also assertthat RCW 36.70A.060 sets forth broader requirements than RCW 36.70A.172(1), and that it required the Countyto consider public health and safetywhen developing GHA regulations. Futurewise points to no authority to supportsuch an assertion, and RCW 36.70A.060 does not setforth any requirementthat local government entities considerthe public health and safety while developing critical area regulations.

~The Swinomish courtwas not asked to determine whetherconsideration ofthe protection ofthe public health and safetywas required bythe GMA, but itwas asked to determine the meaning of“protect” as used in RCW 36.70A. 172, and concluded that it required local government regulations to prevent new harm from coming to critical areas. 161 Wn.2d at429-30.

~ Futurewise urges us to ignore these decisions and to instead applythe reasoning from Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings

~, 96 Wn. App. 522, 979 P.2d 864 (1999) and from Olympic Stewardship Found. v. W. Wash. Growth Mgmt. Hearings Bd., 166 Wn. App. 172, 274 P.3d 1040 (2012). Butthese decisions are 7No. 79663-1-1/8

2227915, at *21 (Wash. Cent. Puget Sound Growth Mgmt. Hrgs Bd. July 12, 2005) (Final Decision and Order). In Audubon Society, the Board analyzed the duties setforth in the GMA related to critical area regulations and concluded thatthe definition ofGHAs set forth in RCW 36.70A.030 does not contain any affirmative mandate requiring counties to considerthe public health and safetywhen developing critical area regulations. The Board acknowledged thatthe GMA defined GHA5 as areas that “are not suited to [the] siting of.

. . development consistentwith public health or safety concerns,” but concluded that “there is no affirmative mandate associated with this definition” exceptthat setforth in RCW36.70A.172 to protectthe functions and values ofcritical areas.6 Audubon Soc’y, 2005 WL2227915, at *21 (quoting RCW 36.70A.030(10)). The Board therein also noted that, under Board precedent, GMA definitions, bythemselves, do not create any GMA duties. Audubon Soc’y, 2005 WL2227915, at *21 n.18 (citing Hanson, 1998 WL 990439, at *78)Numerous subsequent Board decisions have analyzed whetherthe GMA sets forth a dutyto protect people and property during the development ofcritical
area regulations, and they have consistently held thatthe GMA does not require critical area regulations to protectthe public health and safetyfrom GHA5. See

noton point. Neitherofthese decisions analyzes whetherthe GMA requires local governments to considerthe public health and safetywhen developing critical area regulations.

6As the County notes in its briefing, this does not mean thatthe public is unprotected from GHAs. Building codes and othersimilar regulatory schemeswithin the province ofstate and local elected officials provide the publicwith protection against personal and property damage from GHAs. See Seattle Audubon Soc’yv. City of Seattle, No. 06-3-0024, 2006 WL 3791721, at *16 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Dec. 11, 2006) (Final Decision and Order) (concluding that people and property must be protected against GHAs through building codes, notthe GMA). 8No. 79663-1-1/9

Blairv. 

## City of Monroe, No. 14-3-0006c, 2015 WL 10684571, at *29 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. April 1, 2015) (Order Finding Continuing Non-Compliance) (“riskto life and property in geologically hazardous areas is a policy decision”); Friends ofthe San Juans v. San Juan County, No. 13-2-0012c, 2013 WL 5212385, at *22 (W. Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Sept. 6, 2013) (Final Decision and Order) (“The GMA does not impose an independentdutyto protect life and property.”); Friends of Pierce Countyv. Pierce County, No. 12-3-0002c, 2012 WL 3060647, at *53 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. July 9, 2012) (Final Decision and Order) (the GMA definition ofGHA5 “by itselfdoes not impose an independent duty upon the Countyto protect life and property”); SeattleAudubon Soc’yv. City ofSeattle, No. 06-3-0024, 2006 WL 3791721, at *16 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Dec. 11,2006) (Final Decision and Order) (concluding that people and property must be protected against GHAs through building codes, not the GMA).7

~ Futurewise did not, in its opening brief, acknowledge the existence ofany ofthese prior decisions analyzing whetherthe GMA required counties to consider public health and safetywhile developing GHA regulations. Instead, it cited to Dept of Ecologyv. City of Kent, No. 05-3-0034, 2006 WL 1111353 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. April 19, 2006) (Final Decision and Order) asserting thatthe case’s holding—that a GMA definition has substantive effect in identifying wetland critical areas requiring designation and protection—means thatthe definition in RCW 36.70A.030(10) is a mandate to protect people and propertyfrom GHAs. Br. of Appellantat 18. But thatcase directly states “that GMA definitions do not, in themselves, create enforceable obligations.” City of Kent, 2006 WL 1111353, at *21. Itfurther notes thatthe enforceable obligation is the dutyto designate and protectwetland critical areas. It does notsay thatthe definition ofwetlands itselfcreates that obligation but, rather, thatthe definition explains which wetlands the duty applies to. City of Kent, 2006 WL 1111353, at *21. Similarly, RCW 36.70A.030(10), setting forth the definition of GHAs, explicates the scope ofareas to which the duty setforth in RCW 36.70A.172—to protectthe functions and values ofcritical areas—attaches. Itdoes not independentlysetforth any duty. Futurewise does, belatedly, address these Board decisions in its reply brief. Butwe reject Futurewise’s attempts to distinguish these Board decisions from the present case. All of Futurewise’s attempts to distinguish these cases fail to address the holding that Futurewise seeks 9No. 79663-1-1110
We declineto overturn over20 years of Board precedent holding that GMA definitions do not, bythemselves, create GMA duties, and almost 15 years of Board precedent holding thatthe GMA imposes no duty on local governments to considerthe public health and safetywhen developing regulations to protect critical areas, including GHAs. The Board’s interpretation aligns with the plain language of RCW 36.70A.172 and our Supreme Court’s consideration, in Swinomish, of ROW 36.70A.172 as requiring protection ofcritical areas. 161 Wn.2d at427-28. Furthermore, deferenceto the Board’s interpretation ofthe GMA is appropriate herein because the Board is interpreting a statute it administers within its administrative expertise and its interpretation restrains, ratherthan expands, the scope of its own authorityto overrule decisions made by elected county and city officials. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 612, 90 P.3d 659 (2004); Ma’ae, 8 Wn. App. 2d at 197. Finally, we note that our legislature has also tacitly acquiesced to the Board’s interpretation ofthe GMA. The Board’s decisions concluding that GMA definitions do not, on their own, create GMA duties, extend back over20 years, and decisions concluding specificallythat no definition in the GMA sets forth a dutyto considerthe public health and safetywhen developing critical area regulations extend back almost 15 years.8 See Hanson, 1998WL 990439, at *7

to escape: thatthe GMA does not mandate consideration ofthe public health and safety during the development ofcritical area regulations.

8 In a statement ofadditional authorities, Futurewise cites to Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 566, 958 P.2d 962 (1998) as pertaining to whetherthe legislature has acquiesced to the Board’s rulings. Skagit Surveyors, however, is distinguishable from the present matter. Therein, the court explained that legislative acquiescence may not be presumed from the failure to amend a statute “where the administrative interpretation is not by regulation or rule but is, instead, included in a ruling in a contested case and where the interpretation is notconsistent 10No. 79663-i-I/li

8; Audubon Soc’y, 2005 WL 2227915, at *21. TheWashington State Legislature has amended the GMA, including RCW 36.70A.172 and RCW 36.70A.030, several times during this period without disavowing the Board’s rulings. See LAwsoF 2017, 3d Spec. Sess., ch. 18, §2; LAWS OF 2012, ch. 21, 

### § 1; LAWSOF 2010, ch. 211 

### § 3; LAWS OF 2009, ch. 565, 

### § 22; LAWS OF 2005, ch. 423, 

### § 2. The plain language ofthe GMA, interpretations ofthe GMA by our Supreme Court, and over a decade of Board decisions—with clear accompanying legislative acquiescence to those decisions—strongly supportthe Board’s conclusion herein thatthe GMA does not impose a duty on local governments to considerthe public health and safetywhen developing regulations to protect critical areas. The Board did not err byso holding. Ill Futurewise next contends thatthe Board erred by concluding that Futurewise inadequately briefed Issue C-I in its briefing before the Board and, thus, abandoned Issue C-i. This is so, Futurewise asserts, because its briefing adequatelycited provisions ofthe GMA alleged to be violated in its issue heading and cited to prior Board decisions and orders in its argument underthat heading. We disagree.

within the tribunals charged with hearing petitions underthe statute.” Skagit Surveyors, 135 Wn.2d at566. In written decisions, the three Growth Management Hearing Boards interpreted the provision ofthe GMA at issue in Skagit Surveyors differently. 135 Wn.2d at 566. Therefore, assuming silent legislative acquiescence to any one ofthe different Boards’ interpretationswas inappropriate. Butthat is notthe situation presented herein. There are not inconsistent rulings from different Boards aboutwhether GMA definitions setforth any duties underthe GMA. Thus, the legislature’s failure to amend the GMA may be viewed as evidence ofacquiescence to the interpretation setforth in Board rulings. 11No. 79663-1-1112
RCW 36.70A.270(7) authorizes the Board to adopt its own general procedural rules.9 The Board has done so, and its procedural rules are setforth in chapter242-03 WAC. WAC 242-03-590 sets forth the following pertinent requirements for briefs presented to the Board:

(1) A petitioner, ora moving partywhen a motion has been filed, shall submit a briefaddressing each legal issue it expects the board to determine. Failure by such a partyto briefan issue shall constitute abandonment ofthe unbriefed issue. Briefs shall enumerate and setforth the legal issue(s) as specified in the prehearing order. The Board has furtherclarified that an issue is briefed onlywhen “legal argument is provided; it is not sufficientfor a petitionerto make conclusory statements, without explaining how, as the law applies to the facts before the Board, a local government hasfailed to complywith the [GMA].” Tulalip Tribes of Wash. v. Snohomish County, No. 96-3-0029, 1997 WL 29145, at *4 n.1 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Jan. 8, 1997) (Final Decision and Order). Furthermore, the Board has also explained that a party’s inadequately briefed issues are treated the same as unbriefed issues when the briefing provides “insufficientsupporting facts and legal arguments” to satisfythe party’s burden of proof. Finis Gerald Tupperv. City of Edmonds, No. 03-3-0018, 2004 WL 3275211, at *5 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. March 22, 2004) (Final Decision and Order).

~ “All proceedings before the board, any of its members, ora hearing examinerappointed bythe board shall be conducted in accordance with such administrative rules of practice and procedure as the board prescribes.” ROW 36.70A.270(7). “Unless otherwise specified in the GMA, the Washington Administrative Procedure Act (APA) chapter 34.05 ROW, governs the practice and procedure ofthe board.” Stafne v. Snohomish Oounty, 174 Wn.2d 24, 32, 271 P.3d 868 (2012) (citing ROW 36.70A.270(7)). 12No. 79663-1 -1/13
Futurewise does not challenge the validity ofthe Board’s procedural rules but, rather, challenges the Board’s finding that Futurewise’s briefing on Issue C-i failed to provide the necessary links between the challenged code sections referenced in Issue C-i and the GMA. Therefore, we must determine whether the Board’s finding—that Futurewise’s briefing did not include links between the challenged code sections and the GMA—is supported by substantial evidence, which requires thatthere be “a sufficient quantity ofevidence to persuade a fairminded person ofthe truth orcorrectness ofthe order.” Kittitas County, 172 Wn.2d at 155 (internal quotation marks omitted) (quoting Thurston County, 164 Wn.2d at 341). The Board explained its finding that Futurewise had not provided sufficient argument connecting challenged code sections in Issue C-i to the GMAwith the following rationale:

Here, Futurewise-Pilchuck failed to cite any GMA requirement supposedlyviolated bythe County’s geologically hazardous area regulations listed in Issue C-i. It is incumbent upon a petitionerto relate an adopted regulation to a specific GMA statute/requirement and provide argument establishing thatthe provision violates the statute/requirement. Thatwas not done here. Rather, the petitioners’ brief includes statements such as the regulation “.

. . fails to protectdevelopmentfrom landslides as the GMA commands”,”.

. . these sections violate the GMAforthe same reasons

. . .“, and ‘are not supported bythe scientific evidence”. (Alterations in original.) The Board’s description of Futurewise’s briefing on Issue C-i is accurate. Futurewise did not citeto any provisions ofthe GMA in its briefing before the Board for Issue C-i. While Futurewise included numerous citations to GMA provisions in its heading for Issue C, its briefing for Issue C-i failed to connect
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any ofthe challenged code sections addressed in Issue C-I to a violation ofany ofthe sections ofthe GMA listed in the heading for Issue C. Instead, Futurewise made the general conclusory assertions identified in the Board’s decision, such as, “these sections violate the GMA.” Not once in Futurewise’s briefing on Issue C-I did Futurewise attemptto link any ofthe challenged code sections discussed therein to any particular provision ofthe GMA, whether included in Issue C’s heading orotherwise. The record therefore supports the Board’s finding that Futurewise failed to provide the necessary legal argument connecting challenged code sections to violations ofa provision ofthe GMA, and thus supports the Board’s ruling that Futurewise abandoned Issue C-I. We affirm the Board’s decision thatthe GMA does not require the County to considerthe protection ofthe public health and safetywhen developing critical
area regulations and that Futurewise abandoned the issues presented in Issue C-i in its briefing before the Board. The remainder ofthis opinion has no precedential value. Itwill, therefore, be filed for public record in accordance with the rules governing unpublished opinions. IV We now address Futurewise’s remaining contentions, none ofwhich merit appellate relief. A Futurewise next contends thatthe Board failed to rule on a motion Futurewise broughtto supplementthe record with an additional article with

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supporting data (the “LaHusen article”) and that such failure requires us to remand the matterto the Board for resolution. This is so, Futurewise asserts, because RCW34.05.570(3)(f) requires thatwe grant relieffrom agency orders in situations in which the agency has not decided all issues requiring resolution by the agency. Although Futurewise correctly quotes the rule setforth in ROW 34.05.570(3)(f),1° Futurewise makes no attemptto explain why resolution of its motion was required, as mandated bythat section. Futurewise does not present any argumentthat resolution of its motion would, in anyway, affectthe Board’s ruling on the validity ofthe challenged code sections. Furthermore, even if Futurewise had presented any such argument in its briefing, it is simply incorrectthatthe Board never ruled on its motion. Despite being titled “Deferring Decision on Motion For Supplementation,” the Board’s order is clearthatthe deferral was a general denial that offered the opportunity forfurther argument ifcertain conditions were met. Specifically, the Board noted that “[i]f, after reviewing the record and argument submitted bythe parties in their opening briefs, the Board wishes to considerthe LaHusen material for any purpose, the presiding officerwill request additional directed briefing by both parties and argument atthe hearing on the merits.” In otherwords, the Board’s decision notto request additional briefing and argument did not indicate that it

10 Subsection (3)(f) states that courts will grant relieffrom agency orders if“[t]he agency has not decided all issues requiring resolution bythe agency.” (Emphasis added.) 15No. 79663-1-1/16

failed to resolve the motion but, rather, indicated that it did notwish to consider the LaHusen article presented by Futurewise.11 B Futurewise next contends thatthe Board erred in footnote 85 of its final decision and orderwhen itfound thatthere was “no disagreementwith the fact the County has designated landslide hazard areas.” This is so, Futurewise asserts, because it did argue before the Board that “Snohomish County did not properly designated geologically hazardous areas.” Br. ofAppellant at 13. This argumentfails forseveral reasons. First, the argument isfacially flawed; arguing thatthe County made improper designations is notthe same as arguing that it made no designations. Second, the record shows that Futurewise did not argue before the Board thatthe County had made no designations. Third, even if Futurewise had argued thatthe Countyfailed to designate GHAs, footnote 85 is clearly dicta because the section it is taken from in the Board’s final decision and order pertains to an issue unrelated to the designation requirement setforth in RCW36.70A.170. Finally, Futurewise did not present any argumentthat reversal offootnote 85 would have an impact on the Board’s conclusion thatthe County’s regulations complywith the GMA.

~ Such a decision bythe Board is understandable given thatthe LaHusen article Futurewise soughtto add to the record was not available to the County atthe time it developed and implemented its new regulations. Information unavailable to a local governmental entity until after it has adopted challenged regulations is only rarely admitted, and only on a showing of“the necessity ofsuch evidence to the board’s decision concerning invalidity.” WAC 242-03-565(2). See also Blairv. City of Monroe, No. 14-3-0006c, 2014 WL 2624391, at*7 (Wash. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. May 23, 2014) (Order on City’s Dispositive Motion and Petitioner’s Motion to Supplement) (“While the Board is extremelysensitive to the now heightened concerns related to unstable slopes, it is nevertheless inappropriate to supplement the record with specific materials that could not have been considered bythe City priorto the enactment ofthe challenged ordinance.”). 16No. 79663-1-1/17
C Futurewise next contends thatthe trial court erred when it concluded that ‘the top ofslope and toe ofslope areas were buffers, ratherthan geologically hazardous areas.” Br. ofAppellant at 16. This argument fails fortwo reasons. First, citing to the County’s amended definition of landslide hazard areas, SCC 30.91 L.040, the Board stated onlythat “[ljandslide hazard areas are defined to not only include the potential slide area itselfbut also ‘buffer’ areas.” This is an accurate description bythe Board ofthe County’s regulation,12 and it plainly does not state thatthe top ofslope and toe of slope areas are not part of landslide GHA5. In fact, it states the opposite, that “buffer” areas, such asthe top ofslope and toe ofslope areas are included in the definition of landslide hazard areas underthe County’s regulations. Second,
even if, somehow, the Board’s use ofthe term “buffer” was improper, as opposed to merely shorthand, Futurewise did not present any argument that reversal of the Board’s use ofthe term “buffer” would have any effect on the Board’s conclusion thatthe County’s updated critical area regulations complywith the GMA. D Futurewise next contends thatthe Board erred when it concluded that
numerous challenged provisions ofthe SCC complywith the GMA. Specifically,

12 That section states that the landslide hazard area also includes lands within a distance from the top ofthe slope equal to the height ofthe slope orwithin a distance ofthe toe ofthe slope equal to two times the height ofthe slope.” SOC 30.91 L.040. The shorthand use ofthe word buffer” to describe the top ofslope and toe ofslope areas included in the landslide hazard area did nottake those areas outside ofthe definition of landslide hazard area underthe regulation. 17No. 79663-1-1118

Futurewise asserts that SOC 30.62A.130, SOC 30.62B.390, SCO 30.620.130, and SOC 30.62C.140(3)(f)(iv) do not complywith the GMA.13 We address each challenged section separately and conclude that none of Futurewise’s challenges merit appellate relief. First, the Board found that SOC 30.62A.130 was not “amended in any relevant, substantive manner” by Ordinance 15-034 and concluded that “challenges are thus time barred.”14 Futurewise does not challenge the Board’s finding orconclusion on appeal.15 Thus, we acceptthe Board’s finding and conclusion that challenges to SCC 30.62A.130 are time barred and declineto consider Futurewise’s arguments addressing SOC 30.62A.130 on the merits. Second, Futurewise asserts that SOC 30.62B.390 violates the GMA because it grants the county planning and developmentservices director discretionary authorityto expand GHA boundaries. This is so, Futurewise asserts, because the discretionary nature ofthat authority conflicts with the requirement in ROW 36.70A.170(1) thatthe County designate critical areas. But 5CC 30.62B.390 authorizes the directorto expand the boundaries of already designatedcritical areas. Thus, SOC 30.62B.390 operates as an additional protection afterthe GMA requirementto designate and protect critical areas has already been satisfied.

13 Futurewise also asserts that SOC 30.62B.130, SOC 30.62B.140, SOC 30.62B.340, and SOC 30.91 L.040 do not complywith the GMA. But Futurewise presented its challenge to these code sections to the Board only in Issue C-i, which the Board concluded was abandoned. We therefore decline to further consider Futurewise’s challenge to these code sections.

14 ROW 36.70A.290(2) requires that petitions relating to whethera development regulation is in compliance with the goals and requirements ofthe GMA be filed within 60 days after publication ofthe regulation.

~ In fact, in its briefing Futurewise never even acknowledges thatthe Board concluded that its challenge to SOC 30.62A.130 was time barred. 18No. 79663-1-1/19 Third, Futurewise failed to preserve its rightto challenge SCC 30.62C.130
on appeal. Futurewise’s briefing before the superiorcourtdid not include any reference to SOC 30.62C.130, and thus Futurewise failed to preserve the issue forappeal. See State v. Chacon, 192 Wn.2d 545, 547, 431 P.3d 477 (2018) (Ordinarily, we do not consider unpreserved errors raised forthe firsttime on review.”). Even if Futurewise had presented a challenge to SOC 30.620.130 to the superiorcourt, it also failed to include its challenge to SOC 30.62C.130 in its assignments oferroron appeal. We will “review only a claimed errorthat is included in an assignment oferrororclearly disclosed in the associated issue pertaining thereto.” Phillips v. Greco, 7Wn. App. 2d 1 9, 433 P.3d 509 (201 8). Therefore, we decline to consider Futurewise’s challenge to SCO 30.620.130. Fourth, Futurewise bases its challenge to SOC 30.62C.140(3)(f)(iv) on building code statutes pertaining to requirements forapplications for building permits and subdivisions, not GMA requirements pertaining to critical area regulations. To support its assertion that SCC 30.62C.140(3)(f)(iv) violates the GMA, Futurewise cites to RCW 19.27.097, which requires applicants for building permits for buildings requiring potable waterto provide evidence ofa physically and legally available watersupply, and ROW58.17.11 0, which requires the same forapplicationsforsubdivisions. Neither ofthese provisions address critical area regulations, nordo any ofthe cases Futurewise cites in support of its claim of
error. Futurewise seeks to apply laws governing applications for building permits and subdivision applications to code sections intended to designate and protect

19No. 79663-1 -1/20

CARAs as critical areas. As noted bythe Board, “[w]hile localjurisdictions are now required to address both the legal and actual availability ofwaterfor development activity, inclusion ofsuch a requirementwithin the hydrogeologic report section ofthe Snohomish County Code protecting CARAs makes little sense.” The challenged code section is intended to designate and protect CARAs, notto address the availability ofwaterfordevelopment activity, and Futurewise has not established that SCC 30.62C.140(3)(f)(iv) violates any provision ofthe GMA. E Finally, Futurewise asserts thatthe interests ofjustice require us to remand to the Board consideration ofthe County’s amended CARA regulations in light of recently enacted legislation, specifically LAWS OF 2018, ch. 1. We disagree. RCW34.05.554(1)(d) permits a partyto raise a new issue on appeal if“[t]he interests ofjustice would be served by resolution of an issue arising from

. . . (i) A change in controlling law occurring afterthe agency action.” The remedy is to remand to the agency fordetermination. RCW 34.05.554(2). Olympic Stewardship Found. v. W. Wash. Growth Mgmt. Hearings Bd., 166 Wn. App. 172, 200, 274 P.3d 1040 (2012) (footnote omitted) (alteration in original). In 2018, the legislature enacted Engrossed Substitute Senate Bill (ESSB) 6091, LAWS OF 2018, ch. 1, entitled “WaterAvailability.” ESSB 6091 made
numerous changes to the GMAto ensure wateravailabilityfordevelopment. See LAWS OF 2018, ch. 1, at 1. The law primarily adjusted requirements for

20No. 79663-1-1/21

subdivision and building permit applications. It did not modifythe statutory requirements regarding regulations intended to protect CARAs as critical areas. We reject Futurewise’s assertion thatwe must remand consideration of the County’s CARA critical area regulations based on ESSB 6091 because ESSB 6091 has no impact on the analysis ofthe County’s CARA critical area regulations.16 It pertains to issues ofwater availabilityfordevelopment, notto the protection ofCARAs as critical areas. The new law has nothing to do with the challenged sections ofthe SCC addressing the protection of CARAs as critical areas.17 Affirmed.

WE CONCUR:

~~4~3t4WV 

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16The terms “critical area” and critical aquifer recharge area” do not appeareven once in the textofthe legislation.

17 Even if itdid have an impact and the challenged code provisions were in violation of the new law, the legislation was not made retroactive. LAWS OF 2018, ch. 1, § 307. Thus, pursuantto RCW 36.70A.1 30(5)(a) the County has until 2023 to update its code to be in compliance with the new law. 21