(dissenting) — The Shorelines Hearings Board’s findings, in my view, accurately summarize the testimony and other evidence presented in three days of hearings on Overlake’s hotel proposal. The Board’s imposition of a condition that the hotel not intrude into the wetland was a reasonable exercise of the Board’s authority, supported by the evidence and the policies of the Shoreline Management Act.16 Because I believe the majority has improperly substituted its judgment for the Board’s, I respectfully dissent.
The Shoreline Management Act is to be liberally construed “to give full effect to the objectives and purposes for which it was enacted.”17 The essential purpose of the Act is to protect shorelines. Shorelines are not, as the majority suggests, simply one among many competing concerns that local governments have to balance; if that were so, there would have been no reason to pass the Act. Shorelines of *765the state, because they are “among the most valuable and fragile of its natural resources,”18 have priority. When the people of the state approved the Shoreline Management Act in 1971, they directed that “the interest of all the people shall be paramount in the management of shorelines of state-wide significance.”19 And they approved the creation of the Shorelines Hearings Board to ensure the enforcement of that paramount interest.
In reviewing Bellevue’s substantial development permit allowing Overlake to build part of its hotel on pilings in the wetland, the Board could not allow the development to proceed unless the Board found it to be “consistent with the policy of [the Shoreline Management Act of 1971] and . . . the applicable guidelines, rules, or master program.”20
The Board hears a petition for review concerning a substantial development permit de novo. This means the Board is not required to accord any particular deference to the decision of the local government.21 The Board is recognized as having “specialized skills in hearing shoreline cases,”22 and this court is obligated to give due deference to *766the Board’s “specialized knowledge and expertise.”23
This court reviews the present order of the Shorelines Hearings Board against a number of challenges. Primarily the appellants contend the Board’s order is arbitrary and capricious; not supported by evidence that is substantial when viewed in light of the whole record; and that the Board has erroneously interpreted or applied the law.24 With respect to the first two grounds for challenge, a court may not substitute its judgment for that of the Board; it may reverse only if the Board’s order is a willful, unreasoning action, in disregard of facts and circumstances, or if firmly convinced that a mistake has been committed in light of the policy of the Act.25 With respect to interpretation of the law, a reviewing court may substitute its judgment for the Board’s when “necessary to ensure that a proposed project complies with the SMA,”26 but should ordinarily give substantial weight to the Board’s interpretation of the law within its area of expertise.27
The majority suggests that a court need not give substantial weight to the Board’s interpretation of law when the Board is applying “the law of another jurisdiction.”28 To the extent the majority implies that the Board was not acting within its expertise in applying Bellevue’s Master Shoreline Program, I disagree. Shoreline master programs, though initially developed by local governments, are adopted as state regulations only after the State has approved them as consistent with the Shoreline Management *767Act.29 The Board regularly applies and interprets them as state regulations when deciding whether or not to approve a substantial development permit. The Board’s interpretation of Bellevue’s Shoreline Master Program, not Bellevue’s, is the interpretation to which due weight should be given by this court.
The majority erroneously declares the shoreline in question to be “urban.”30 The Bellevue Shoreline Master Program does not use the classifications of natural, conservancy, rural and urban, a system of classification that is recommended by the Department of Ecology but not required.31 Instead, Bellevue specifies the shorelines to which each of its policies applies. The Majority concedes that Bellevue has not adopted Ecology’s suggested classifications, yet concludes that if Bellevue had done so, it would have classified the project’s environment as “urban.”32 This court cannot, by fiat, classify the project acreage as urban and therefore suitable for high-intensity land use when Bellevue’s own shoreline plan designates Lake Washington wetlands within the city as subject to the highest degree of conservation. The land use designation of the property for office and limited business use is irrelevant because the regulations of the Shoreline Overlay District prevail over any conflicting land use district regulation.33 The Bellevue City Council Ordinance approving the substantial development permit identified the following policies of Bellevue’s Shoreline Master Program as relevant to the project in question:
Uses and activities in unique or fragile areas should be *768discouraged unless measures can be satisfactorily undertaken to mitigate all related adverse impacts.[34]
Existing natural resources should be conserved.
b. Wildlife habitat should be protected, improved and, if feasible, increased.
c. Unique and fragile areas should be so designated and maintained. Access and use should be restricted if necessary for the conservation of these areas.[35]
Wetlands
a. Economic uses and activities should minimize and cluster that water-dependent portion of their development along the wetland shoreline and place inland all facilities which do not require a water’s edge location.
e. Economic development should be designed to preserve the aesthetics and natural amenities of the wetland area and to be compatible with appropriate existing developments in the same vicinity.[36]
All of the above policies are specifically applied to wetlands by the Bellevue Shoreline Master Program Policy Element.37 In addition to the Master Program policies, the Act itself provides that local governments, in their planning for such shorelines, are to give preference to uses which “[preserve the natural character of the shoreline” and “[pjrotect the resources and ecology of the shoreline.”38
The proposed hotel and parking structure is not a facility *769that requires a water’s edge location.39 The adjacent wetland, as an associated wetland of Lake Washington, is a shoreline of statewide significance.40 And the adjacent wetland is functionally related to “a natural feature of the first importance,”41 the Mercer Slough. Yet the City Council of Bellevue interpreted the pertinent policies as permitting the hotel to cover portions of the wetland. The Board, on the other hand, reasonably concluded that the proposed substantial development, to the extent it intruded into the wetland, was inconsistent with Bellevue’s own shoreline policies, as well as the policy of the Act itself. The Board reached this conclusion after finding that the adverse impacts of the project on the wetland would not be mitigated by enhancement projects, uncertain of success, on wetlands some distance away.
THE BOARD’S FINDINGS
Findings IV and XIII. The majority allows there was substantial evidence to support the Board’s finding that the wetland on the site is in a natural state, with function and value similar to Mercer Slough.42 This was all that was necessary to show that the project, which degrades close to an acre of the wetland, was at odds with the policies calling for conservation of existing natural resources. The majority then goes on to say, however, that the appellants did not introduce evidence that the project would degrade the Mercer Slough system as a whole.43
When a developer proposes to locate a substantial project on a particular stretch of shoreline, the Act does not require an opponent to prove the proposed development will degrade the larger system of which the particular shoreline *770is a part. Such a rule would render the Shoreline Act much less effective because often a single development will degrade an entire system either minimally or not at all. The Act as written contemplates restrictions that will forestall the continuing cumulative effects of development on shorelines.44
The material issue here was whether Overlake’s proposal to cover a portion of a significant wetland was consistent with relevant shoreline policies. Consequently, the Board did not make, and did not need to make, a finding that the project would degrade the Mercer Slough system as a whole. The Board’s decision cannot be reversed for a lack of substantial evidence to support a finding it did not make or need to make. Findings IV and XIII faithfully reflect testimony heard by the Board, and should be affirmed.
Finding XI. The Board found neither the City nor Over-lake designed the project to minimize wetland intrusion. The Board specifically mentioned the dry land devoted to a central courtyard, and the City’s required setbacks, which forced the structure further into the wetland “for aesthetic reasons.” The majority dismisses the courtyard factor as de minimis because it involves only 9,000 square feet.45 But the project as designed covers over 35,000 square feet of wetland. If one quarter of this amount can be spared, in my view the result is not de minimis, particularly when combined with the dry land lost to the setbacks.
As to the setbacks, the majority asserts they were necessary for safety concerns, not aesthetic reasons.46 But the record reflects no reason other than street aesthetics for the 20-foot setback along S.E. 6th, the project’s northern *771boundary.47 The only other concern I can locate in the hearing examiner’s findings pertains to 114th Street S.E., the project’s eastern boundary, where there was an identified potential future need for a rapid transit stop.48 The Board’s unchallenged finding of fact VII addresses the northern setback along S.E. 6th as follows:
In order to reduce the intrusion of the hotel into the wetlands, City staff had recommended little or no setback from the street line on the S.E. 6th side. The City Council, apparently weighing street esthetics more heavily, required a 20 foot setback from the street, at the cost of greater intrusion into the wetland.
This finding supports challenged finding XI. Finding XI should be affirmed.
The majority also holds the Board erred legally with respect to the setback along S.E. 6th because it failed to identify a specific regulation in Bellevue’s Master Program giving shorelines priority over setbacks.49 In light of the previously quoted policies of the Act and the Bellevue Shoreline Master Program, I would hold no specific regulation is needed to establish that shorelines of statewide significance have priority over street setbacks. If Bellevue was unprepared to sacrifice its interest in the aesthetic appearance of S.E. 6th, its alternative was to deny the project, not to sacrifice the wetlands.
The majority contends the setback issue was conclusively resolved earlier by the City’s decision to grant a conditional use permit, and therefore was not before the Board and was inadequately documented in the record.50 I disagree. The shoreline substantial development permit incorporated *772the conditions of approval provided by the conditional use permit, and therefore an appeal of the substantial development permit put at issue the conditions of the conditional use permit that impact the shoreline.51 The presiding member of the Board specifically referred to lot coverage issues at the beginning of the first day of proceedings,52 and the record contains voluminous staff reports and other evidence detailing the evolution of the setback requirement.
FINDING IX. Overlake developed a mitigation plan after consultation with the Department of Ecology. The Board summarized the evidence concerning this plan in its Finding IX:
As a result of the City’s and Ecology’s required mitigation of wetland impacts, some trees would be planted near the hotel, and other enhancements, mostly in the form of vegetation, would be made, not to the wetland adjacent to the hotel, but to the main portion of the Mercer Slough wetland many blocks to the south.
The Board concluded as a matter of law that “the wetland mitigation plan proposed fails to fully mitigate the impacts on the wetland of the development, and most particularly fails to mitigate impacts on the Sturdevant Creek portion of the wetland system,”53 and “the wetland mitigation proposed fails to compensate for the adverse effects of the project.”54 The majority opinion does not address the mitigation issue, but Overlake vigorously challenges these conclusions of law.
As framed by Bellevue’s Master Program policies, the material issue was whether “measures can be satisfactorily *773undertaken to mitigate all related adverse impacts.”55 Finding XI, unchallenged by Overlake in its appeal, establishes that the proposed mitigation fails to compensate on-site for the project’s adverse impacts.56 Further, evidence in the record depicted the proposed off-site mitigation as uncertain in success.57 And Overlake’s evidence introduced to demonstrate the wetland’s insignificance as a habitat for wildlife was far from overwhelming, in that the inventory was not thorough.58 The Board’s expertise is particularly adapted to evaluating such evidence. From the entire rec*774ord, an unprejudiced, thinking mind could conclude that measures could not be “satisfactorily undertaken to mitigate all related adverse impacts”59 and that there would be a net loss of wetland functions. I would therefore hold the Board did not err in concluding the mitigation plan was inadequate.
I also observe that the first of Bidwell’s issues identified in the prehearing order states, “Does the permittee’s proposed wetland mitigation plan adequately compensate for the project’s adverse impacts on shoreline wetlands at the site?”60 Bidwell did introduce considerable evidence on this topic, and Overlake’s witnesses supplied more evidence in response to questions from the Board. I therefore believe the majority is inaccurate in its assertion that Bidwell focused only on the height issue and failed to develop an adequate record for the findings pertaining to the substantial development permit.
“REASONABLE USE” DICTA
The majority is convinced that the Board’s stated reasons for altering the permit are but a smokescreen for its “real reason”61 or “true attitude”62&emdash;a belief that the proposed hotel was not a reasonable use for the small sliver of dry land on the subject parcel. The majority uses the Board’s comment on reasonable use as a basis to conclude the Board allowed “its ability to look objectively at the evidence”63 to be affected.
This is certainly a mischaracterization of the Board’s decision-making process. First, the Board’s comment questioning reasonable use was straightforward dicta, unnecessary to its decision but useful in showing what its decision on the height variance was not based on. When the *775Board used dicta about reasonable use to similar purpose in the decision upheld in Buechel, the Supreme Court did not fault the Board for doing so.64 This court occasionally expresses its thoughts on issues that do not expressly constitute the basis of decision.65 We should be very reluctant to infer that the similar use of dicta by a hearing board reveals a hidden and improper motive.
Second, the Board’s statement about reasonable use is most fairly understood as illuminating its decision to grant the height variance—a decision not at issue in this appeal— not its decision to condition the substantial development permit. Only with respect to the height variance was “reasonable use” a specific criterion for decision. That is, Bid-well could have blocked the height variance if he had shown the project did not meet the five defined variance criteria, including “[t]hat the strict application of the . . . standards set forth in the applicable master program precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by the master program.”66 But since Bidwell did not carry his burden of proof on any of the variance criteria, the Board—despite its reservations about reasonable use—affirmed the height variance.67
In short, the real reason the Board conditioned the substantial development permit is exactly as set forth in its decision—the development “violates the Shorelines Management Act and the Bellevue Shoreline Master Program in its extensive and unwarranted coverage of this wetland, and that the wetland mitigation proposed fails to compen*776sate for the adverse effects of the project.”68 In speculating that the Board’s remark about reasonable use betrays a lack of objectivity, the majority unnecessarily casts doubt on the Board’s professionalism and thereby undermines the Board’s authority.
Overlake and Bellevue raise a number of procedural issues with the Board’s decision. Essentially, they argue they lacked fair notice of the issues decided by the Board. This argument is contradicted by the broad scope of the prehearing order, and by Bellevue’s opening statement: “I think it’s fair to characterize our debate over the substantial development permit ... as a debate over the wetland impacts and the impacts to Mercer Slough that this project could pose.”69 1 see no merit to the procedural issues.
In summary, the Board acted within the law and its own expertise in ordering that Overlake’s hotel project should proceed only if redesigned so as not to intrude into the wetland. The Board’s decision is well supported in the record. I would affirm the judgment of the superior court.
RCW 90.58.
RCW 90.58.900.
RCW 90.58.020.
Id.
RCW 90.58.140.
Buechel v. Department of Ecology, 125 Wn.2d 196, 202-03, 884 P.2d 910 (1994). During his opening remarks, the presiding member of the Shorelines Hearings Board emphasized this point:
I want to remind everyone that this is not an appeal on the question of whether the city made a mistake. This is a de novo determination of whether this permit and this variance meet requirements of the law on the issues specified in the prehearing order, and so testimony as to the diligence with which the city pursued its decision is not relevant; I don’t want to hear it.
Testimony with regard to whether particular individuals in city government or Department of Ecology felt the project met particular criteria in the law is not relevant and calls for legal conclusions that are exactly the [province] of this board’s decision.
Transcript of Proceedings, at 40, Day One.
Buechel, 125 Wn.2d at 204 (footnote omitted).
Buechel, 125 Wn.2d at 203.
See RCW 90.58.180(3) (incorporating review standards of Administrative Procedure Act, RCW 34.05.570, for appeals from decisions of the Shorelines Hearings Board).
See Hayes v. Yount, 87 Wn.2d 280, 286, 552 P.2d 1038 (1976).
Jefferson County v. Seattle Yacht Club, 73 Wn. App. 576, 588, 870 P.2d 987 (1994). See also Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975).
Jefferson County, 73 Wn. App. at 588.
Majority, at 754-55.
RCW 90.58.090(3), (4); Buechel, 125 Wn.2d at 203-04.
Majority, at 763.
See WAC 173-16-040.
Majority, at 763.
Bellevue City Code 20.25E.030.
Bellevue Shoreline Master Program (BSMP) Policy 21.U.056.
BSMP Policy 21.U.102.
BSMP Policy 21.U.308.
BSMP Policies 21.U.056, .102, .308; Ex. A-30.
RCW 90.58.020. See also Conclusion of Law VI (citing RCW 90.58.020).
Transcript of Proceedings, at 542, Day Three (project proponent concedes this point); see also Conclusion of Law IV (unchallenged).
Conclusion of Law III (unchallenged).
Finding of Fact IV
Majority, at 756.
Majority, at 757.
See Hayes v. Yount, 87 Wn.2d at 287-88. The Board heard testimony that Lake Washington has lost over 90 percent of its wetlands since the locks were built at the beginning of this century. Tr. of Proceedings, at 154, Day One.
Majority, at 758.
Majority, at 759.
See Tr. of Proceedings, at 341, Day Two, testimony of project architect Boh Wells: “They [Bellevue City Council] were balancing esthetics from the street with wetland coverage and balanced all kinds of things and that’s just the way that one came out.”
Ex. 8 (Hr’g Examiner’s finding of fact 29).
Majority, at 759-60.
Majority, at 758.
See Br. of Resp’t Shorelines Hr’gs Bd., at 11.
“Design issues are on the table because this board has power to condition permits ... so please, if you have information that you feel the board should know which would advise against conditioning a permit on the height and lot coverage issues, please make sure you present it[J” Tr. of Proceedings, at 41, Day One.
Conclusion of Law X.
Conclusion of Law XIII.
BSMP Policy 21.U.056.
The Board’s finding is supported by the opinion testimony of Erik Stockdale and the related Exhibit A-27, a letter which reads in part: “The additional fragmentation of this wetland cannot be mitigated, period. The fact that there are no restoration/creation options available in the project area is an indication of the cumulative impacts that have already occurred to the wetlands in this reach of the watershed.”
Overlake describes Stockdale’s opinion as “supplanted” by the Department of Ecology’s acceptance of Overlake’s Mitigation Plan, but provides no authority for disregarding Stockdale’s opinion. Appellant Overlake’s Opening Br., at A-40. Notwithstanding Ecology’s official approval of the mitigation plan, the Board was entitled to accept Stockdale’s professional opinion that the project “will result in a net loss of wetland functions”. Ex. A-27. And see Tr. of Proceedings, at 120-21, Day One.
Despite the applicant’s depiction of the wetland as one “most of us wouldn’t mind losing” because it is uselessly devoted to canary grass, see Tr. of Proceedings, at 411, Day Three, other evidence includes a letter from the Department of Ecology pointing out that the wetland is part of Mercer Slough’s “very high quality peat wetland system” in which canary grass is not typical. Ex. R-2, at 1. See also Tr. of Proceedings, at 477, Day Three (testimony of project proponent Boule, agreeing that in the long run the loss of canary grass means a loss of other forms of vegetation that would become established in the long term).
See, e.g., Ex. A-27. The letter exhibit states in part:
The flood storage function of the wetland is proposed to be mitigated on site. The water quality improvement function of the wetland, however, will not be properly mitigated. The mitigation plan proposes to plant several ditches in an old blueberry farm with plant species that attenuate pollutants, totaling 0.08 acres. There is no indication that this will adequately replace the water quality function that the 0.82 acres portion presently provides.
See also Ex. R-2; Tr. of Proceedings, at 374-75, Day Two (Bellevue administrator Matthew Terry testifying that the mitigation plan proposes to add vegetation to a pond not yet in existence).
See Tr. of Proceedings, at 512, Day Three (testimony of wildlife ecologist Rector).
BSMP Policy 21.U.056.
Prehearing Order, SHB No. 93-87, at 1.
Majority, at 760.
Majority, at 761.
Id.
Buechel, 125 Wn.2d at 208.
See, e.g., Jefferson County, 73 Wn. App. at 593 (Court of Appeals writes that although it has rejected Shorelines Hearing Board’s decision because of errors of law in considering other factors, “there is certainly some merit” to the contention that “this project simply does not fit the area into which it would be inserted.”).
WAC 173-14-150(2)(a) (1995).
Conclusion of Law XVII.
Conclusion of Law XIII.
Tr. of Proceedings, at 28, Day One.