¶30 I respectfully dissent. While the hearing examiner (Examiner) made numerous findings and, as the majority points out, the Clark County Board of County Commissioners (Board) made few findings to the *934contrary, the Board did disagree with one specific and fundamental assumption underlying the Examiner’s decision, which was that Storedahl had a nonconforming right to mine almost the entire parcel even if he did not grant the rezone. My view is that this court first needs to resolve this dispute because it formed the underlying basis for many of the Examiner’s findings.
Penoyar, J.*934¶31 Based on this potentially faulty assumption, the Examiner clearly believed that he could best protect the environment by granting the rezone with various conditions included to protect environmental values:
As a starting point, most of the opponents argue strongly that the County should deny this proposal and prohibit further mining in the [East Fork Lewis River] due to the damaging effects of mining, and this operation in particular, on protected wild fish.... The Examiner agrees with these parties about the effect of mining on fish and fish habitat, but the cessation of mining at this site is not one of the legal options... . Therefore, the analysis is a comparison of the nature and level of mining under the nonconforming use right and the nature and level of mining under the applicant’s proposal. In other words, what is more protective of the public health and welfare as well as that of the fish: continuation of mining under the nonconforming use right, or expansion and relocation of mining under the current proposal.
Clerk’s Papers (CP) at 50.
[M]any of the criteria, including the environmental analysis for the [habitat conservation plan], assume a particular base level of operation. If that base level is a zero operation, then the extraction and processing contemplated in this proposal would be a significant increase over the base level. On the other hand, if the base level is assumed to be the applicant’s claimed nonconforming use, then the impact of the extraction and process contemplated here would likely be a net reduction in environmental impact.
CP at 42.
¶32 The Board challenged the Examiner’s underlying assumption:
*935The zone change should be denied because the change does not further the public health, safety, morals or welfare as required by CCC 18.503.060(3). The Hearings Examiner erred in concluding that the “public interest” rezone criteria was met because substantial mitigation would not occur if mining proceeded under nonconforming use rights. This conclusion was erroneous for at least two reasons. First, the federally approved Habitat Conservation Plan (which contains the bulk of mitigation measures under review) was sought by the applicant due to its business decision to avoid “take” liability under the federal Endangered Species Act[ of 1973, 16 U.S.C. §§ 1531-1544]. Nothing in the record suggests that the applicant would alter its commitment to a federal safe sanctuary depending upon whether county approvals are premised upon a conforming zone change or nonconforming mining rights. Second, the county has independent authority to regulate nonconforming uses, so long as such regulation does not effectively prohibit the use.
CP at 121-22.
¶33 Clearly, the Board disagreed with the Examiner’s determination of what the applicable base level would be if the Examiner denied the rezone application. In sum, the Board looked at the same facts as the Examiner but applied a different underlying assumption, thus reaching a different conclusion. Even the Examiner acknowledged:
In light of [Storedahl’s] lawful nonconforming use . . . the question is not whether a new mining operation should be allowed to begin on a virgin site. It is clear that a new mining operation on a virgin site adjacent to the [East Fork Lewis River] could not meet the approval criteria, and would be denied.
CP at 44. This court should have addressed this potentially faulty presumption before engaging in its analysis of the CCC 18.503.060 rezone criteria.
¶34 I also disagree with the majority’s holding that the examiner reached an overall conclusion of whether the rezone “furthers public health, safety, morals or welfare” as required by CCC 18.503.060(3). While the Examiner made *936numerous findings on environmental and other impacts and benefits of the project, he never concluded that the rezone, as a whole, would satisfy these criteria.
¶35 In sum, I believe that the proper course for this court is to make a finding on the underlying nonconforming use issue. Only then should this court consider the relief to be granted in this case, including a remand for further findings. As we have not followed that process, I must dissent.
Review denied at 164 Wn.2d 1031 (2008).