[No. 40272-6-II. Division Two. January 26, 2012.]
January 7, 2011, Oral Argument
Brian T. Hodges(of Pacific Legal Foundation), for appellant.
Robert M. McKenna, Attorney General, and G. Marc Worthy, Assistant; and Mark R. Johnsen (of Karr Tuttle Campbell), for respondent.
Author: Joel Penoyar, C.J.
We concur: David H. Armstrong, J., Christine Quinn-Brintnall, J. ¶1 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) FACTS ¶2 The GMA, chapter 36.70A RCW, I. 2008 ORDINANCE ¶3 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. 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). ¶4 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). ¶5 Besides designating CMZs as "geologically hazardous areas," former chapter 18.22 JCC 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" ¶6 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 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. . . . . 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. B. The Foundation's Challenge to the 2008 Ordinance ¶7 On May 23, 2008, the Foundation, a nonprofit corporation, and seven of its members ¶8 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, 1 Administrative Record (AR) at 158. ¶9 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 627-35 ("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 705-08 ("Management Recommendations for Washington's Priority Habitats: Riparian," Washington Department of Fish and Wildlife (DFW) web page). C. Board's Final Decision and Order ¶10 On November 19, 2008, the Board issued a final decision and order rejecting the majority of the Foundation's claims. With regard to issue 6, 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. ¶11 The Board partly agreed with the Foundation on issue 6, 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. 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 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. ¶12 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. (1) Any legal use or legal structure in existence on the effective date of [chapter 18.22 JCC] 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. II. 2009 ORDINANCE ¶13 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." 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). ¶14 Additionally, section 2 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. ¶15 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. 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 ¶16 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. ANALYSIS I. JUDICIAL REVIEW, DEFERENCE, AND BURDEN OF PROOF IN GMA CASES [1, 2] ¶17 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). [3, 4] ¶18 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." Petitioner's Br. at 8 (alterations in original) (quoting RCW 34.05.570(3)). [5, 6] ¶19 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); see also RCW 36.70A.3201. II. "INCLUDE THE BEST AVAILABLE SCIENCE" ¶20 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." ¶21 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." ¶22 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 that, 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 [7, 8] ¶23 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. B. Concerned Friends of Ferry County v. Ferry County ¶24 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 (DFW) 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. ¶25 Our Supreme Court agreed with the board, holding that substantial evidence ¶26 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," 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 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)). ¶27 Finally, our Supreme Court also observed that the Department of Commerce C. The County Complied with the GMA's "Best Available Science" Requirement ¶28 As in Concerned Friends of Ferry County, the question here is whether the County "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. [9] ¶29 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 Commerce ¶30 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 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": (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). ¶31 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. ¶32 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 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 ¶33 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. [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. A. Standard of Review ¶34 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 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 ¶35 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 82.02.020 ¶36 The Foundation argues that the vegetation regulation violates RCW 82.02.020. We assume without deciding that the issues are properly before us [10, 11] ¶37 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 Prop. 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 and rough proportionality ¶38 The Foundation contends that the CMZ regulation is invalid on its face because the County cannot meet the nexus and proportionality test. Petitioner's 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, 145 Wn. App. 649, for this contention. Those cases are distinguishable. ¶39 In Isla Verde, a developer sought review under the Land Use Petition Act (LUPA), chapter 36.70C RCW, 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, 146 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 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. ¶40 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. ¶41 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. [12] ¶42 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, 145 Wn. App. at 668. Here, the County has prohibited vegetation removal and development only within those areas that have determined to be "high risk" critical areas. 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 ¶43 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. [13] ¶44 RCW 34.05.554(1)(d) (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 opportunity to 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 opportunity for 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. ¶45 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 Prop. 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, 80 U.S.L.W. 3246 (U.S. Oct. 10, 2011) (No. 11-457). The Foundation asserts no reason why it would be unjust to require it to initiate a new administrative proceeding to consider this question. ¶46 We affirm the Board's final decision and order and its subsequent compliance order. ARMSTRONG and QUINN-BRINTNALL, JJ., concur.