(dissenting) — The majority holds that a written decision, adopted outside of the public forum by a single member of the Snohomish County Council and containing significantly more detailed and expansive findings of fact and conclusions of law than the formal oral motion, satisfies the open meeting requirement. I dissent.
The Open Public Meetings Act of 1971 (OPMA) establishes that no governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order or directive, except in a meeting open to the public.4 In contrast, SCC 2.02.180(6) permits council decisions on appeals from the county hearing examiner to be reduced to writing and entered into the record within 15 days after the conclusion of the council hearing.
The decisions that may be reduced to writing can vary significantly. A council decision to affirm the hearing examiner may be simply stated in an oral decision with no need for additional findings. The council may also, as this case *76demonstrates, reverse the hearing examiner, reject his findings and conclusions, and adopt independent findings and conclusions. While SCC 2.02.180(6) apparently permits the full spectrum of these decisions to be reduced to writing following a public hearing, the SCC must not be read to allow actions that frustrate the purpose of the OPMA.
Resolution of the dispute in this case requires this court to harmonize the OPMA and the SCC. If there is a conflict, the state OPMA must control. It is well established that the OPMA is remedial and should be liberally construed.5 This court must evaluate the extent to which the subsequent written findings and conclusions vary from the decision made in the open forum. The vast discrepancy between the oral motion, appendix A, and the subsequently adopted written findings and conclusions, appendix B, is readily apparent and should not be tolerated.
The only precedent supporting the majority decision is Martel v. Vancouver.6 While Martel allowed a written motion that varied from the oral, as long as it was an accurate reflection of the oral motion, the decision offers a rule with little guidance for its application. The factual record in Martel does not indicate to what degree the written and oral decisions varied. It is therefore impossible to determine what was considered an accurate reflection of the oral decision.7 While the majority's interpretation of the oral *77motion here is plausible, it is by no means the only possible reading of the record. The oral motion would equally support different findings and conclusions. This does not meet the Martel test.
Close examination of the record does not support the majority's conclusion that the written findings merely elucidate the scope of the oral decision or accurately reflect that decision. To reach this conclusion the majority is forced to speculate what certain councilmembers were referring to.8 The discussion following the motion does not clearly indicate that a majority of the council voted in favor of the findings as written. For instance, members were confused whether this was a reversal, a remand, or a combination of the two. In the opening motion it appears Councilperson Bartholomew recognized a number of issues that needed further review by the hearing examiner. Councilman McLaughlin, in response to apparent confusion about reversing the hearing examiner, stated,
Well, could I add as the person that made the second, I would have to say that at this time I can't say that there was no reason to, I mean that the Hearing Examiner was in error. I thought we were continuing a process that would allow possibly it to happen without having to go through a full blown EIS on every other issue if this were the only one.
Although McLaughlin eventually voted for the motion, there is no indication that she changed her opinion in the few minutes between making the statement and voting.
Even absent OPMA requirements, it is fundamental that the final action of the council be supported by a majority of councilmembers. While the four councilmembers voting for the motion may have agreed to reverse the hearing examiner, it is far from clear that each and every finding was supported by a majority vote. Findings by a council in a *78quasi-judicial proceeding are given great weight in subsequent judicial review.9 Accordingly, it is essential that a majority agree to each finding. Even conceding that the general issues were mentioned in a "cryptic" fashion the specific conclusions were not apparent. Majority, at 70. It was possible to support a reversal without making each finding contained in the written motion. As the appellant noted, there is no indication that the four members voting in the majority had any idea what findings were finally placed in the written document. It is therefore impossible to conclude the findings and conclusions would have been adopted by a majority of the council.
Attempting to resolve this problem, the majority expands the rule from Martel. The majority holds that the written findings need only be "consistent" with the issues discussed in open hearing. Majority, at 72.10 Such a rule requires this court to infer that issues mentioned during the motion "had been the subject of considerable prior discussion and/ or testimony." Majority, at 70. While this may be true, it does not follow that the prior testimony and discussion amounted to a finding or conclusion. Such judicial inferences are clearly not justified in this case, since the full record of the proceedings is not before the court. Even if the full record were available, we would be forced to speculate whether a particular "discussion" amounted to a majority of councilmembers approving a finding and conclusion on that issue or merely one member expressing an opinion. The majority holding renders all preliminary discussion potentially binding on the council and the parties.11 *79Appellants correctly note that the fact that a council-member may have made a comment during the public hearing is no indication that that comment was approved by a majority of the county council, nor does it assure that the maker did not subsequently change his or her mind. Of course there will be instances when the council expressly incorporates prior discussion into a motion so it will be evident it is intended to be part of the motion. In the absence of such specific inclusion, the court should not justify the later findings and conclusions by combing the record of the proceedings and speculating which statements were sufficiently discussed to be included in the final motion by implication.
The majority is justifiably concerned that it may be burdensome to expect a county council to express precise findings in its oral decision, especially when dealing with very complex and extensive hearings such as these. But it is in just such a case that it is appropriate for a majority of the council to formally adopt the written findings in a subsequent open meeting. Councilperson Bartholomew, reacting to the apparent complexity and confusion of the motion, suggested, "Well I think that to help us along here that I'd like to have a week's continuance to give staff time to help us phrase some language." Had this suggestion been followed, the written findings would have been prepared and presumably, but not necessarily, adopted. If adopted, the action would take place in a public forum as required by OPMA; there would be no doubt the findings were supported by a majority of the council, and no basis to appeal to the courts.
Comparing the record of the council's oral decision and the written findings and conclusions it is impossible to say the latter merely reflects the former. When the written findings and conclusions are significantly more detailed than the oral motion they are more than a reduction of the decision to writing, thus falling outside of the procedure allowed in SCC 2.02.180(6). Adopting the written findings is *80an independent "action" by the council and must be conducted in an open forum.
The OPMA should control in this case and I would have reversed the trial court's decision.
Appendix A
The following is excerpted from the close of public testimony, September 20,1989, Snohomish County Council Motion 89-288.
Bartholomew: Well, maybe I can get it started. I think there's certainly a quantity of issues that have been raised that justify a remand back to the Hearing Examiner. I think the issue of compatibility, the existing zoning versus previous zoning, wetland mitigation, the potential of a DNS, and expanded DNS checklist... I think, I think all of those would be reason to remand it back to the Hearing Examiner and I certainly would welcome some comments. I'd make that in a motion if you so desire. brubaker: I'll take it as a motion.
Bartholomew: Alright.
brubaker: Is there a second?
mclaughlin: I'll second it.
brubaker: OK. I have a motion and a second. Is there any discussion?
corcoran: Well, I'm gonna vote against it because I think that Planning has made the case that the Determination of Significance was in order, and there should be an EIS based on density. The density issue also comes into play on the rezone issue in conformance with the comprehensive plan, and the zoning, which is almost quadruple the number of units. And we can say, well it's less than next door or whatever is fine. All the past mistakes don't necessarily have to be . . . just go on and on. It's interesting that compatibility was not an issue in the recent North County plan that we . . .. In that case we actually took it from a half acre to 2.3 acres, I think, where there was a significant amount of half acre already available, and various other ones. And yet, in this part of the county, for some reason, some of my colleagues seem to feel that we can just. . . there's no end to what you can put down there into our road system. 228th is a very bad situation. An EIS would cover traffic. You travelled it when you were down there. You commented on how bad it is. But yet, it's denser and denser. I think that the Hearing Examiner was right. I think Planning was right, and I just cannot support it because in order for you to send this back, remand it, you must say now that there's no requirement of a determination, that there's no requirement for an EIS. I, you're gonna have to stretch things pretty good to make that case.
*81brubakee: Any other comment?
mclaughlin: Well, yes, I would like to comment because I'm misunderstanding what an expanded checklist is then. If that is used, if this process is used, does this mean that they ... if they found that it still needed an EIS, it would not have an EIS done?
britton: Mr. Chairman, maybe we can get a determination as to just exactly what that motion does.
mclaughlin: Well, could I ask Gordon to answer that question?
brubaker: Do I have to reopen the public testimony to do that? I don't ... OK.
sivley: Your question was . . .
mclaughlin: If we remanded it back for the expanded checklist and they found that it still was not a satisfactory method of looking to the mitigation, and I would include the wetland mitigations, I don't think you did...
Bartholomew: Yes I did.
mclaughlin: Oh did you? Excuse me. That there would not need to he an EIS done then? Because we remanded it back for an expanded checklist?
sivley: That can't be determined. The checklist process precedes the decision as to whether to go to an EIS or not. mclaughlin: That's what I thought.
sivley: It's an information disclosure tool. It's really at the beginning of the SEPA process where the applicant is asked to describe in some detail what the project is and what its likely impacts will be. Expanded checklist would give an increased level of detail in certain areas that are of concern. And would then be used by again by the Planning Department as the lead agency to make a determination whether that information reveals significant impacts or not. And if significant impacts are revealed, then the EIS is required. Conversely if it's not.
corcoran: My point is that to remand it based on, the appeal is based on . . . they're appealing the Determination of Significance, isn't that right?
sivley: Yes.
corcoran: So we have to say to remand it back we have to articulate that that is incorrect to require that Determination of Significance.
sivley: The Council motion would have to be basically as follows. If the Council finds that the Determination of Significance was in error . . .
mclaughlin: Oh.
corcoran: Right.
sivley: that there are not probable significant adverse impacts for the following reasons, and then detail what those reasons are.
corcoran: That's my point.
mclaughlin: Yeah.
*82corcoran: We have to make that case to remand it hack. That's why I said it's unfortunate that they came too far down the trail with this particular proposal, but they thought they could get the approval here, here and here without going through it, and my point is that to return it we have to state now that that is in error.
Bartholomew: (Unintelligible)
mclaughlin: Is there no other way to remand it?
sivley: Well, if you're going to ask for a different environmental analysis, you need to do that. You need to either affirm or reject the environmental determination that's been made. If you are to reverse it, you have to enunciate your reasons why it was determined to be in error and how it's to he redone.
brubaker: Any further comment? Any part of the motion you wish to add or . . .
Bartholomew: Well I think that to help us along here that I'd like to have a week's continuance to give staff time to help us phrase some language.
mclaughlin: Well, could I ádd as the person that made the second, I • would have to say that at this time I can't say that there was no reason to, I mean that the Hearing Examiner was in error. I thought we were continuing a process that would allow possibly it to happen without having to go through a full blown EIS on every other issue if this were the only one.
brubaker: Well, for what it's worth, I agree with the maker of the motion. I think that the reconcilable differences, or that they're not non-reconcilable. That the comp plan is a guide and zoning's a brush. I think the density issue's been already addressed in the development surrounding the proposal. I feel an EIS is out of the ordinary, and if you look at the, our own analysis says that the traffic mitigation has been addressed. Public Works has bought off on the traffic mitigation saying it's acceptable and a portion of the traffic problem is already in an MRIP. So I don't know how much more specific you need to get. I think the impacts are no more adverse for this development than they are for the ones that already exist or are already planned.
corcoran: Which MRIP is that?
brubaker: According to . . . here it says included within the 228th MRIP.
corcoran: Well, not really.
mclaughlin: It's not?
brubaker: Well, according to our . . . intersections of 228th Street, Southeast 9th Avenue, Southeast 228th Street and SR 527 included within the 228th Street MRIP. Is that not correct?
Bartholomew: Over to 9th Avenue?
brubaker: Yes.
Bartholomew: Yes, from memory, that's correct.
*83cokcoran: That essentially . . . 228th and SR 527 MRIP is being funded by the development on the intersection. Now I don't know what contribution's being made from outside, but it won't be very much.
brubaker: Well, I have a motion and a second before this body. Is there any further comment or questions?
Bartholomew: Call for the question.
brubaker: The question's been called for. OK. All those in favor of the motion say aye.
Bartholomew: Aye.
britton: Aye.
mclaughlin: Aye.
brubaker: Chair also votes aye. All those opposed?
corcoran: Nay.
Appendix B
The following is the written motion adopted by the Snohomish County Council.
SNOHOMISH COUNTY COUNCIL MOTION NO. 89-288
APPEAL FROM HEARING EXAMINER DECISION IN FILE NO. ZA 8806245, PHOENIX DEVELOPMENT INC.
WHEREAS, Phoenix Development, Inc./Tom Parmenter applied to Snohomish County for concurrent rezone from Residential 8,400 and Suburban Agriculture 1 Acre to Planned Residential Development 8,400 and Planned Residential Development 20,000; preliminary plat approval; and a Shoreline Substantial Development permit for property located 350' west of 14th Ave. W. and about 850 feet north of 228th St. S.W., on the east side of Swamp Creek in the Swamp Creek Valley; and
WHEREAS, the Snohomish County Hearing Examiner held a public hearing on April 13, 1989 and issued his decision on April 28, 1989 to deny the rezone, return the preliminary plat and Shoreline Substantial Development Permit to the applicant for modification; and
WHEREAS, the applicant appealed this decision to the Snohomish County Council according to the provisions of SCC 2.02-.170, whereupon the Council held a public meeting on June 12, 1989 and a public hearing on July 31 and September 20, 1989 to consider the applicant's appeal; and
WHEREAS, after considering the appeal based upon the record, the Snohomish County Council did reverse the decision of the Hearing Examiner;
*84NOW, THEREFORE, ON MOTION:
Section 1. The Snohomish County Council makes the following findings of fact and conclusions:
1. The Council adopts the following findings of fact and conclusions of the Hearing Examiner in the case of Phoenix Development, Inc./Tom Parmenter, File No. ZA 8806245:
a. Findings 1 through 40; Conclusions 1,2,4,5,23,24,25.
2. The Council makes the following additional findings of fact and conclusions:
a. Finding 41. The zoning designations and actual development densities in the vicinity of the subject property are similar to and compatible with the proposed rezone and resulting density. The proposal would result in an average lot size of 12,200 sq. ft., which is compatible with surrounding area lot sizes of 8,400 sq. ft., 9,600 sq. ft. and 20,000 sq. ft.
b. Finding 42. The Alderwood Comprehensive Plan was adopted in 1973. The zoning on the subject property at that time was Residential 9,600. Such zoning would have allowed greater density than applicant is currently requesting. In 1975 approximately two-thirds of the subject area was rezoned to Suburban Agriculture - 1 Acre at the request of the owner of the plant nursery to the south of the subject property. At the time of the 1975 rezone the nursery owner also owned the subject property.
c. Finding 43. At the Council hearing, the applicant submitted a new wetland mitigation plan which was subsequently reviewed by the Planning Division and determined by Planning to require further modification in order to comply with Planning Division wetland procedures including keeping disturbance to the land outside the 100 foot stream corridor to the maximum extent possible. Specific recommendations for changes were not presented by Planning. The applicant's wetland consultant stated that he believed such a modified plan could be agreed upon between the applicant and Planning.
d. Conclusion 26. Under the circumstances of this case failure to follow the comprehensive plan does not mean that applicable land use goals and objectives cannot be met. Approval of the requested rezone, subject to appropriate SEPA-based conditions to mitigate identified adverse impacts, would lead to a consistent pattern of land use development in the subject area. The development of Willow Glen 4 across Swamp Creek from the subject site is similar to the one proposed; Willow Glen 4 was required to set back from Swamp Creek 50 feet. This development would be set back 100 feet from Swamp Creek. Area development to the north, south, east and west is at a density compatible with that proposed in this case. There is no evidence in the record which suggests that impacts to Swamp Creek *85from this development would be significantly adverse and/or could not be mitigated.
e. Conclusion 27. The surrounding developed density pattern has occurred since the adoption of the Alderwood Plan and with the same zoning designations which are requested in this action, and as such constitutes a changed circumstance. The county has not adopted an areawide rezone to rezone this area to conform to the Alderwood Comprehensive Plan. As a result existing zoning designations have prevailed over the comprehensive plan language and a more dense pattern of development has occurred than if the area had been rezoned according to the comprehensive plan. In light of actual development according to existing zoning all around the subject site, there is little support for preservation of this parcel of land for Parks purposes, nor does the Parks Department have particular plans with respect to this land.
f. Conclusion 28. Based upon the council's site visit, the topography, location and wetland characteristics of the site reveal that Swamp Creek and its drainage way can he adequately protected by appropriate conditioning of the proposed development as well as by mitigation measures already offered by applicant.
g. Conclusion 29. The Plan is 15 years old and has not undergone amendments with respect to the subject area. Actual development patterns have proceeded in accordance with existing zoning and not with the plan designations. Although the plan's intent to protect the drainage way of Swamp Creek remains valid, surrounding development has been permitted to proceed, apparently in compliance with the county's drainage, wetland, SEPA and other environmental regulations. There is no unique situation shown in the record with respect to this property which suggests that the same responsible development cannot occur here.
h. Conclusion 30. The rezone, with appropriate SEPA conditions, can be consistent with the policies of the Alderwood Comprehensive Plan despite having a higher density than that proposed by the Plan.
i. Conclusion 31. There are changed circumstances justifying the rezone.
j. Conclusion 32. The requested rezone can be conditioned so as to promote the public welfare and protect the Swamp Creek drainage way.
k. Conclusion 33. The Hearing Examiner's determination that there is an irreconcilable conflict with the comprehensive plan is erroneous in light of the ability of the proposed development as conditioned, to protect the Swamp Creek corridor and drainage way from significant adverse impacts, and in light of changed conditions in the vicinity which have increased developed densities in all directions from the subject property.
*86Section 2. The Snohomish County Council enters its decision in the appeal of Phoenix Development, Inc./Tom Parmenter:
1. The Council reverses the decision of the Hearing Examiner to make a Determination of Significance (DS) and deny the rezone, and return the preliminary plat and Shoreline Substantial Development Permit to the applicant for modification.
2. The Council remands the case to the Planning Division for compliance with the provisions of Shoreline Management Substantial Development process, and for compliance with the provisions of the State Environmental Policy Act (SEPA) in accordance with the above-referenced findings and conclusions, and to make a recommendation to the Hearing Examiner on the rezone request in accordance with the above-referenced findings and conclusions.
Dated this 20th day of September, 1989.
In accordance with this directive, Snohomish County Code 2.48.070 demands all county council resolutions be adopted at meetings open to the public.
Mead Sch. Dist. 354 v. Mead Educ. Ass'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975); Port Townsend Pub'g Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).
35 Wn. App. 250, 666 P.2d 916 (1983).
It should also be noted that while the Martel court cites North St. Ass'n v. Olympia, 96 Wn.2d 359, 369-70, 635 P.2d 721 (1981) as precedent, this issue was not discussed in North Street. There the court stated that where an oral decision was made, but was subject to additional conditions, it would be unfair to require a writ of appeal before the full scope of the decision was apparent. In other words, the decision was not final until all the conditions were known. Apparently the Martel court read this as approving a rule that written findings may vary from oral decisions. In fact, the case could equally support a converse argument that a nonspecific oral decision should not be considered final if it is substantially altered by a formal written decision.
See majority, at 70 & nn. 2, 3.
Victoria Towers Partnership v. Seattle, 59 Wn. App. 592, 800 P.2d 380 (1990).
There is considerable difference between a document that "reflects” an oral decision and one that is merely "consistent" with the issues contained in a discussion.
The OPMA is intended to open council deliberations to the public, but this rule would likely chill discussion because the council will only make statements it is willing to be considered as findings of fact.