                                                                                    FILED
                                                                            COURT OF APPEALS
                                                                                 DIVISION iI

                                                                           2B15 FEB - 3 AM8 :X48

                                                                            STATE OF WASHINGTON

                                                                            BY
                                                                                       IJTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II.


CONCRETE NOR' WEST,              a   division   of    Miles                  No. 45563 -3 -II
 Sand &   Gravel Company; and 4M2K, LLC,

                                     Appellants,                        PUBLISHED OPINION


          v.




 WESTERN           WASHINGTON               GROWTH
 MANAGEMENT HEARINGS BOARD,


                                     Respondent.



         BJORGEN, J. —   Concrete Nor' West, a division of Miles Sand and Gravel Company, and

4M2K LLC ( collectively, CNW) appeal a superior court' s affirmance of a final decision and

order   from the Western Washington Growth Management Hearings Board ( the Board). The


Board found    no violation of   Washington'      s   Growth Management Act (GMA), chapter 36. 70A


RCW, in Whatcom County' s denial of a proposed amendment to its comprehensive plan and

zoning map     designating   certain   property   as mineral resource   land ( MRL). CNW argues that the


GMA, Whatcom County' s comprehensive plan, and the Whatcom County Code ( WCC)

collectively required adoption of the amendment. Because we agree with the Board that they did

not, we affirm.
No. 45563 -3 -II



                                                   FACTS


         Concrete Nor' West operates a gravel mine on land in Whatcom County. Pursuant to the

WCC, CNW applied to amend Whatcom County' s comprehensive plan and its zoning map to

expand a MRL overlay onto a parcel adjacent to its mine and to re- designate that parcel from

commercial forestry land to MRL. 1

         Staff at Whatcom County Planning and Development Services ( planning staff) processed

CNW' s application and determined that the parcel at issue satisfied the MRL designation criteria


found in the County' s comprehensive plan. After analyzing the criteria prescribed in the WCC

for considering an amendment to the comprehensive plan and determining that the amendment

satisfied them, the planning staff recommended approving CNW' s request. After a hearing,

Whatcom County' s Planning Commission concurred with the planning staff, recommended

adopting the proposal, and forwarded CNW' s application to the Whatcom County Council for

consideration.




         CNW' s proposal did not command a majority of the Council. Three members voted to

pass the proposed amendment, three voted to reject it largely based on concerns about water

quality and the effects of future mining on nearby agricultural lands, and one abstained. Because

the proposed amendment failed to garner a majority of the Council, it was not adopted.




1
    The planning   staff phrase   CNW'   s request as one   to "[   a] mend the Comprehensive Plan Map and
Zoning Map to expand the existing Mineral Resource Land (MRL) overlay by an additional 280
acres over the existing Commercial Forestry zone, and change the Commercial Forestry
designation to     a                Administrative Record (AR) at 32. The Planning
                       MRL designation."
Commission characterizes it as one to " amend the Whatcom County Comprehensive Plan map
from Commercial Forestry to Mineral Resource Lands ( MRL) and the zoning map to create an
MRL Overlay for 280 acres located on the northern slope of Eddys Mountain." AR at 276.



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No. 45563 -3 - II



         CNW petitioned the Board for review of the Council' s failure to pass the proposed

amendment. CNW argued that because RCW 36. 70A. 120, part of the GMA, requires counties


and cities   to " perform [ their]    activities ...   in conformity with [their] comprehensive plan[ s],"

and because the parcel met the comprehensive plan' s criteria for designation as MRL, the


Council had a duty under the comprehensive plan and the GMA to pass the proposed amendment

and re- designate the land. Administrative Record (AR) at 9 -10. The Board disagreed, stating

that " the fatal flaw in Petitioners' argument is the lack of language in any of the cited

Goals /Policies or the designation criteria that require the County to designate land as MRL when

the   designation    criteria are   met." AR    at   1186 ( footnote   omitted).   Because the Council had no


duty to designate the land by adopting the amendment, the Board held that no violation of the

GMA had occurred and that it lacked the power to grant CNW relief. Therefore, it dismissed


CNW' s petition for review with prejudice. AR at 1187 -88 ( citing Stafne v. Snohomish County,

174 Wn. 2d 24, 37 -38 &       n. 5,   271 P. 3d 868 ( 2012) ( citing    SR9 /US 2 LLC v. Snohomish County,

No. 08 -3 - 004, 2009 WL 1134039 at * 4 ( Cent. Puget Sound Growth Mgmt. Hr' gs Bd. Apr. 9,


2009) and Cole v. Pierce County, No. 96- 3 -009c, 1996 WL 678407 at * 7 -8, 10 ( Cent. Puget

Sound Growth Mgmt. Hr' gs Bd. July 31, 1996))).

         CNW petitioned for superior court review of the Board' s decision under the.

Administrative Procedure Act,           chapter   34. 05 RCW (Act). The superior court affirmed the


Board, and CNW appealed.


                                                       ANALYSIS

                                           I. THE STANDARDS OF REVIEW


          The legislature has charged the Board " with adjudicating GMA compliance, and, when

necessary,    with   invalidating     noncompliant comprehensive plans and           development   regulations."
No. 45563 -3 -II



King County v. Cent. Puget Sound Growth Mgmt. Hr' gs Bd., 142 Wn.2d 543, 552, 14 P. 3d 133

2000).    By statute, the Board' s review is deferential and it must

             find compliance unless it determines that the action by the state agency, county,
         or city is clearly erroneous in view of the entire record before the board and in light
         of the goals and requirements of [the GMA]."


King County,         142 Wn.2d        at   552 ( quoting RCW 36. 70A. 320( 3)) (               alteration   in   original).   An


action   by   a state    agency, county,          or   city is clearly    erroneous      if "the Board ... [ is] ` left with the


firm   and    definite   conviction        that   a mistake      has been   committed.'"        King County, 142 Wn.2d at

552 ( quoting Dep' t ofEcology v. Pub. Util. Dist. No. 1 ofJefferson County, 121 Wn.2d 179, 201,

849 P. 2d 646 ( 1993)).


         We review a Board decision by applying the standards of chapter 34. 05 RCW directly to

the record before the Board, sitting in the same position as the superior court. City ofRedmond

v.   Cent. Puget Sound Growth Mgmt. Hr' gs Bd., 136 Wn.2d 38, 45, 959 P. 2d 1091 ( 1998). We


 review[]      the   Board'   s    legal   conclusions      de   novo,"   but, because of its expertise in administering

the GMA, we accord substantial weight to the Board' s interpretation of its provisions. King

County,      142 Wn.2d        at   553.    CNW bears the burden of showing the invalidity of the Board' s

decision, and thus, as relevant here, the burden of showing that the Board " erroneously

interpreted     or applied         the law."      Feil v. E. Wash. Growth Mgmt. Hr 'gs Bd., 172 Wn.2d 367, 376-


77, 259 P. 3d 227 ( 2011) ( citing RCW 34. 05. 570( 1)(                     a), (   3)( d)).


                                                             II. THE GMA


         Among the GMA' s core requirements is the mandate that counties and cities subject to it

 adopt comprehensive growth management plans and development regulations in accordance

with   the Act'      s provisions."        King County, 142 Wn.2d at 546. Whatcom County is subject to the

GMA. See RCW 36. 70A.040( 1).                       For jurisdictions subject to it, the GMA requires periodic



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No. 45563 -3 -II


reviews and updates to comprehensive plans and development regulations and authorizes the

consideration of comprehensive plan amendments no more than once a year, with. exceptions.


RCW 36. 70A. 130.

          The GMA prescribes 13 exclusive goals that cities and counties must use " for the purpose


of   guiding the development              of comprehensive plans."            RCW 36. 70A. 020. Two of these goals


are   especially        pertinent   to the   present appeal:      to "[   m] aintain and enhance natural resource -based


industries," RCW 36. 70A. 020( 8),               and   to "[   p] rotect the environment and enhance the state' s high

quality   of    life,   including    air and water     quality,   and     the availability   of water."   RCW


36. 70A.020( 10).


          As CNW notes, the GMA sets out specific procedures for accomplishing its goal of

maintaining and enhancing natural resource -based industries. First, the Act requires cities and

counties    to designate "         where appropriate ... [        m] ineral resource lands that are not already

characterized by urban growth and that have long -term significance for the extraction of

minerals."       RCW 36. 70A. 170( 1)(          c).   Next, RCW 36. 70A.060 ( 1) requires cities and counties


within    its   scope     to "   adopt   development    regulations ...       to assure the conservation of agricultural,

forest,   and mineral resource             lands designated      under     RCW 36. 70A. 170."       The GMA further


requires that cities and counties operating under its strictures periodically review their mineral

resource designations in light of new information concerning mineral deposits and certain new or

modified model regulations. RCW 36. 70A. 131.


                        III. WHATCOM COUNTY' S COMPREHENSIVE PLAN AND COUNTY CODE


          The Whatcom County comprehensive plan sets out eight goals and associated policies for

 guid[ ing] Whatcom County in land use decisions involving lands where mineral resources are

present."       AR at 144. Of these, Goal 8J states an intent to




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No. 45563 -3 - II



           s] ustain and enhance, when appropriate, Whatcom County' s mineral resource industries,
          support the conservation of productive mineral lands, and discourage incompatible uses
          upon or adjacent to these lands.


AR   at   146.   Goal 8K contains the County' s aspiration to

          e] nsure that mineral extraction industries do not adversely affect the quality of life in
          Whatcom County, by establishing appropriate and beneficial designation and resource
          conservation policies, while recognizing the rights of all property owners.

AR   at   146.   Goal 8L declares Whatcom County' s intent to

           a] chieve a balance between the conservation of productive mineral lands and the quality
          of life expected by residents within and near the rural and urban zones of Whatcom
          County.

AR at 147. Goal 8N contains Whatcom County' s aim to

           m] aintain the conservation of productive mineral lands and of productive forestry lands
          within or near the forestry zones of Whatcom County.

AR at 149. Finally, Goal 8P expresses the County' s intent to

           d] esignate Mineral Resource Lands [ MRLs] containing commercially significant
           deposits throughout the county in proximity to markets in order to avoid construction
           aggregate shortages, higher transport costs, future land use conflicts and environmental
           degradation. Balance MRL designations with other competing land uses and resources.

AR   at   149.   Goal 8P is implemented by Policy 8P -1, which states:

           Seek to designate 50 year supply of commercially significant construction aggregate
           supply to the extent compatible with protection of water resources, agricultural lands, and
           forest lands.

AR at 146 -53.


           After setting out these goals and policies, the comprehensive plan prescribes criteria for

designating property as MRL. The criteria for nonmetallic MRL are, in relevant part:

           1.     Non -metallic deposits must contain at least one million cubic yards of
           proven and extractable sand, gravel, or rock material per new MRL Designation.
           2.       Minimum MRL Designation size is twenty acres.




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No. 45563 -3 - II



        3.       Expansion of an existing MRL does not need to meet criteria 1 or 2.
        4.       MRL Designation status does not apply to surface mines permitted as an
        accessory or conditional use for the purpose of enhancing agriculture or facilitating
        forestry resource operations.
        5.       All pre- existing legal permitted sites meeting the above criteria will be
        designated.
        6.       The site shall have a proven resource that meets the following criteria; Sand
        and   gravel    deposits   must     have   a   net   to   gross   ratio   greater   than 80% (   1290.

        cy /acre /foot).
        7.       MRL Designations must not be within nor abut developed residential zones
        or subdivisions platted at urban densities.
        8.         MRL Designations must not occur within the 10 year zone of contribution
        for designated wellhead protection areas... .
        9.         MRL Designation        should not enclose        by    more    than 50% non -designated
        parcels.



AR at 155 -56.


        Equally applicable to the designation of mineral lands are the procedures for amending

the comprehensive plan, codified in WCC 2. 160. These specify that a proposed amendment may

be approved only if the Council finds that all of five listed criteria are met. Of these, the third

criterion specifies that


         t]he public interest will be served by approving the amendment. In determining
        whether the public interest will be served, factors including but not limited to the
        following shall be considered:
                   a. The anticipated effect upon the rate or distribution of population growth,
                   employment growth, development, and conversion of land as envisioned in
                   the comprehensive plan.

                   b. The anticipated effect on the ability of the county and /or other service
                   providers,   such   as   cities,    schools,    water   and /or   sewer    purveyors,   fire
                   districts, and others as applicable, to provide adequate services and public

                   facilities including transportation facilities.
                    c. Anticipated impact upon designated agricultural, forest, and mineral
                   resource lands.


WCC 2. 160. 080.




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No. 45563 -3 -II



                   IV. THE COUNTY COUNCIL DID NOT HAVE A DUTY TO DESIGNATE
                                               THE PROPERTY AS MRL


          We turn now to the issue raised by CNW' s appeal: whether or not Whatcom County' s

comprehensive plan imposes a duty on the Council to adopt an amendment and designate land as

MRL if it satisfies the plan' s designation criteria.2' 3 We conclude that it does not.

A.        The Comprehensive Plan' s Goals, Policies, and Designation Criteria


          Once a comprehensive plan is in place, the GMA gives effect to the plan' s provisions by

requiring that "[   e] ach county and city that is required or chooses to plan under RCW 36.70A.040

shall   perform its   activities ...   in conformity   with   its   comprehensive plan."        RCW 36. 70A. 120.


This provision thus turns the failure to conform to a comprehensive plan into a GMA violation


that the Board may remedy.

          Any duty in the comprehensive plan to designate mineral lands would be extracted either

from its relevant goals and policies or its designation criteria. Goals 8J, 8K, 8L, and 8N, set out




2 We note here what is not before us. CNW' s briefing to the Board and our court argued only
that Whatcom County violated the GMA because the denial of the proposed amendment was not
in conformity with the comprehensive plan: CNW' s argument presumes that the plan itself
complies with the GMA, but that the Council violated RCW 36. 70A. 120 when it acted
inconsistently with that plan. CNW' s supporting amici argue that other provisions of the GMA
and implementing Washington Administrative Code provisions required the adoption of CNW' s
proposed amendment, and CNW echoed these contentions at oral argument. Amici' s argument,
thus, asserts that the comprehensive plan itself violates the GMA because it does not designate
the property at issue as MRL. As such, it is the type of "disguised challenge to the adequacy of
the comprehensive plan itself' that the parties must first present to the Board, which has
exclusive   jurisdiction    over such claims.     Woods v. Kittitas County, 162 Wn.2d 597, 614 -15, 174
P. 3d 25 ( 2007). We therefore do not consider amici' s argument.


3 In support of its argument that the Board erred, CNW contends the Board misapplied Stafne. In
Stafne, our Supreme Court held that absent a duty to adopt a comprehensive plan amendment
pursuant to the GMA or other law, neither the Board nor a court can order the legislative
discretionary    adopting the
                act of                   amendment.      Stafne, 174 Wn.2d          at   37- 38 &   n. 5 ( citing SR9 /US
2 LLC, 2009 WL 1134039 at * 4            and   Cole, 1996 WL 678407         at *   7, 10).   Here, we hold that the

Council was under no duty to adopt CNW' s proposal. Therefore, the holding in Stafne directly
supports our upholding the Council' s action.
                                                          8
No. 45563 -3 - II



above, fix the two central and often contentious ends of maintaining the supply of productive

mineral lands while protecting the quality of life, other resources, and the rights of all property

owners. These goals are made more corporeal by Policy 8P -1, which states that the County will

  s] eek to designate" a 50 -year supply of construction aggregate to the extent compatible with

protection of water resources, agricultural lands, and forest lands. AR at 153. Nowhere do these


goals and policies state that any parcel satisfying the designation criteria must be designated as

MRL. Nowhere do they impose a duty to designate a specific level or amount of MRLs. In fact,

their closest approach to any specific duty, the 50 -year supply policy of Policy 8P -1, requires the

County   to "[   s] eek to" designate only if compatible with the protection of water and other

resources. AR at 153.


         In sum, the goals and policies of the comprehensive plan recognize the importance of


MRLs, state the clear goal and policy of fostering them and the industries they support, but also

make clear that this must be accomplished in a way compatible with the protection of other

resources and the quality of life. In fact, Goal 8P ends its description of the goal of designating

MRLs   with      the   directive: "   Balance MRL designations with other competing land uses and

resources."      AR    at   153.   These goals and policies create the breathing space ofjudgment, not the

chains of duty. They do not require the County to designate the parcel at issue as MRL.

         We turn next to the MRL designation criteria of the comprehensive plan, set out above in


pertinent part. Of these, criteria 1, 2, 6, 7, and 8 on their face impose necessary, but not

sufficient conditions for designation. In other words, a parcel must meet these conditions to be

designated, but meeting the conditions does not require designation. Some of the criteria, such

as numbers 4 and 9, are not classifiable from their terms as either necessary or sufficient. The

only designation        criterion     expressly   describing   a sufficient condition   is   number   5, stating that
No. 45563 -3 - II



  a] 11 pre- existing   legal   permitted sites   meeting the   above criteria will   be designated."   AR at


155. This criterion, however, is not relevant to the case before us, because the record does not


show that the property at issue is a legally permitted mining site.

         Turning to the purpose of the designation criteria, both the GMA and the goals and

policies of the comprehensive plan make clear that the criteria, other than number 5, should not


be read to announce any duty to designate MRLs. First, the GMA requires cities and counties to

designate MRLs only " where           appropriate."   RCW 36. 70A. 170( 1).     The flexibility inherent in that

exercise gives jurisdictions the room to reconcile the easily conflicting GMA goals of enhancing

natural resource -based industries and protecting the environment and the quality of life. RCW

36. 70A. 020( 8), ( 10); RCW 36. 70A. 3201.


         Second, the goals and policies of the comprehensive plan require the Council to make


comparative judgments about the effect of designation on Whatcom County' s environment,

quality of life, and mineral, agricultural, and forestry industries. The concerns involved with

these comparative judgments are many and involve a multitude of issues. However, the

designation criteria touch but a few of the issues involved in a determination that designation is


appropriate. If the designation criteria were truly meant to divest the Council of its discretion in

making the determination of where designating a parcel as MRL is appropriate, the criteria

would be much more exhaustive in their examination of the effects of the designation. To be

consistent with the plan' s goals and policies, as well as the text of the designation criteria


themselves, we cannot read those criteria to compel the designation of property meeting their

terms.



         Following the designation criteria in the comprehensive plan is the mineral resources

selection method, which states:




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No. 45563 -3 - II



         MINERAL RESOURCES - SITE SELECTION METHOD

         1. Sites meeting Mineral Resources Designation Criteria 1 - 4 ( and areas enclosed
         by these sites greater than 50 %).
         2. Sites requested by owner or operator meeting designation criteria.
         3. Sites that are regionally significant meeting designation criteria.
         4. Sites adjacent to both roads and other proposed MRL sites meeting designation
         criteria.




AR   at. 881.   The text is silent as to the role of these four categories. What remains clear, though,


is that reading the four categories to create a duty to designate the land they describe would

bluntly contradict the balancing approach of the comprehensive plan' s goals and policies, for the

reasons already rehearsed.


         Such a reading would also oppose the general criteria for amending the comprehensive

plan, found in WCC 2. 160. 080. As noted above, WCC 2. 160. 080 sets out five criteria, each of


which must be met before a comprehensive plan amendment may be approved. The third

criterion requires that the amendment serve the public interest. WCC 2. 160. 080( A)(3).


Similarly to the goals and policies discussed above, WCC 2. 160. 080( A) does not require the

designation of any specific parcel as MRL, but does require the consideration of the public

interest in its third criterion. Interpreting the mineral resources selection method to require

designation of any parcel falling within its four categories would ignore the elements of the

public interest which WCC 2. 160. 080( A) demands be considered. To avoid these conflicts with


both the comprehensive plan' s goals and policies and with WCC 2. 160. 080, the mineral


resources selection method in the designation criteria cannot be read as imposing a duty to

designate all parcels falling within its categories.

B.       The Role of Community Displeasure in the Council' s Decision

         CNW contends that the failure to designate the property at issue as MRL cannot be

justified under WCC 2. 160. 080( A)( 3)' s " public interest" criterion, because the Council



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No. 45563 -3 -II



confounded the public interest with community opposition. In support, CNW cites a number of

cases which overturned permitting or quasi-judicial decisions due to overreliance on community

attitudes or displeasure.


         The rule governing this issue was set out in Sunderland Family Treatment Services v.

City   of Pasco, 127 Wn.2d 782, 797, 903 P. 2d 986 ( 1995): "[              w]hile the opposition of the


community may be given substantial weight, it cannot alone justify a local land use decision."

Whether or not the Council' s failure to designate is the sort of action to which this rule has been

applied,   the Council'    s action   here does not   offend   its terms.   The record does disclose


substantial opposition to the proposed MRL designation. The record also discloses, though, that


council members voting against the designation did so with a view to serving the public interest,

which they were required to take into account. To prohibit local officials from considering

elements of the public interest simply because those elements were strongly argued to them is to

plunge deeply into absurdity. The record shows that community opposition alone did not justify

the Council' s decision. Therefore, the Council' s decision does not offend the rule in Sunderland.

C.       The Consideration of the Public Interest at the Designation Stage


           CNW also contends that the Council' s consideration of elements of the public interest


was improper because Whatcom County' s system of phased project review demands that those

elements be considered only during project permitting. In support, CNW cites board decisions in

Franz    v.   Whatcom   County   Council, No. 05 -2 -0011, 2005 WL 2458412             at *   1 ( W. Wash. Growth


Mgmt. Hearings Bd. Sept. 19, 2005) and Wells v. Whatcom County Council, No. 97- 2- 0030c,

 1998 WL 43206      at *   1 ( W. Wash. Growth Mgmt. Hr'          gs   Bd. Jan 16, 1998),     as well as a hearing

examiner decision in an earlier phase of CNW' s application, Concrete Nor 'West v. Whatcom




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No. 45563 -3 -II



County, No. SEP2009 -00132 and PLN 2009 -0013 ( Whatcom County Hr' g Exam' r July 16,

2009).    For a number of reasons, we disagree with CNW' s reading of these cases.

          Wells and Franz each involved challenges to prior designations of MRLs by Whatcom

County. The challenge in Wells rested on the argument that the designation resulted in

prohibited impacts to residential uses. The Board spurned this argument, holding that the record

lacked    evidence   that the designation           created   any "   prohibited   impacts   on residential uses,"   Wells,


1998 WL 43206,        at *   10,   and   that "[   s] pecific conflicts are appropriately addressed in a site -by-

site   permitting   and review process."            Wells, Order on Reconsideration, 1998 WL 312640 at * 2

 W. Wash. Growth Mgmt. Hr'                gs   Bd. Feb. 19, 1998).        The Board also pointed out that Policy 8P-

4 of the comprehensive plan specifies that mining will be allowed in MRLs through an

administrative permit process, requiring environmental review and application of appropriate

site -specific conditions.         Wells, 1998 WL 43206           at *   10.


          The petitioner in Franz contended that an MRL designation was flawed, because it did

not consider the likely impacts to groundwater, wetlands, and habitat and because it was not

consistent with the adjacent rural residential area. The Board rejected this position, holding that

           1] ikely impacts on water and critical areas of any specific mining operation are
           dealt with and used as constraints and conditions at the time of evaluating a request
           for an administrative permit for mining in Whatcom County; not in comprehensive
          plan amendments about natural resources ...                    nor in designations of MRLs.

Franz, 2005 WL 2458412, at * 9.

           Wells and Franz rebuff a challenge to an MRL designation based on the failure to

consider certain impacts. Crucially, the impacts that each decision holds must be considered at

the    permit stage are "[    s] pecific conflicts" appropriately addressed at permitting, Wells, Order on

Reconsideration, 1998 WL 312640 at * 2, and the impacts " of any specific mining operation."

Franz 2005 WL 2458412, at * 9. These decisions, in other words, stand for the common sense



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No. 45563 -3 -II



notion that when making an MRL designation, the County is not required to consider the sort of

site -specific environmental or other impacts that must await a specific proposal for realistic

consideration.




          In   contrast,   WCC 2. 160. 080( A)(3), the public interest criterion for comprehensive plan


amendments, and the plan' s goals and policies discussed above, require at the designation stage a


broad consideration of the public interest and a balancing of the need to preserve mineral

resources with the need to protect water and other resources and the quality of life. This is

precisely what those Council members voting against the designation did. The County' s failure

to adopt the proposed designation offends neither Wells nor Franz. 4

          The County' s action is also consistent with the GMA itself. As noted, among its goals

guiding the development of comprehensive plans, the GMA lists both the goal of maintaining

and enhancing natural resource -based industries and the goal of protecting the environment and

enhancing the       state' s   high quality   of   life, " including   air and water quality, and the availability of

water."    RCW 36. 70A. 020( 10). The GMA' s command in RCW 36. 70A. 170( 1) to designate


MRLs " where appropriate" is informed by these goals. Thus, consideration of the public interest

and balancing of competing interests lies at the heart of deciding whether a designation is

 appropriate."       That, again, is what the three council members did. Nothing in that consideration

involved the sort of specific and proposal -bound evaluation that must await a permit application.


          In the iterative progress of land use regulation and approval, the phasing of project

review can be both a delicate and consequential matter. If potential impacts are considered too


early, the absence of a specific proposed use may turn their consideration into a vague and




4 The hearing examiner' s decision on which CNW also rests its argument relied heavily on Wells
and Franz. Thus,.,our analysis of those two cases adequately addresses the examiner' s decision.
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No. 45563 -3 -II



superficial exercise. If considered too late in the process, project momentum may cloud

adequate   scrutiny   of a project' s effects.   See,   e. g.,   King County v. Boundary Review Bd., 122

Wn.2d 648, 664, 860 P. 2d 1024 ( 1993); Lands Council                v.   Washington St. Parks & Recreation


Comm' n, 176 Wn.      App.   787, 803, 309 P. 3d 734 ( 2013).         Late consideration may also threaten

principled review if impacts cannot be considered at the plan- or policy- making stage, but those

plans or policies are then used at the permitting stage to conclude that the impacts are allowable.

       The goals and policies of the Whatcom County comprehensive plan, together with the

criteria in WCC 2. 160. 080 for amending that plan, chart a sound course through these shallows.

As concluded above, these provisions apply at the designation stage. They state the clear goal

and policy of fostering MRLs and the industries they support, but also make clear that this must

be accomplished in a way compatible with the protection of other resources, including water and

the quality of life. In doing this, Goal 8P sums up the designation process with the directive:

 Balance MRL designations         with other     competing land      uses and resources."   AR   at   153. The


record, although arguably thin, shows that those council members voting against the designation

followed this course. The Council' s consideration of the public interest was proper.

                                                 CONCLUSION

        The comprehensive plan does not require the County to designate the property at issue as

MRL. Therefore, the failure to designate this property did not violate the requirement of RCW

36.70A. 120, that jurisdictions subject to the GMA perform their activities in conformity with

their comprehensive plans. For these reasons, the decision by Whatcom County not to




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No. 45563 -3 - II



designate the property as MRL was consistent with both the GMA and the comprehensive plan.

        We affirm.




 We concur:




                                             16
