(dissenting) — The majority has misinterpreted the holding in Maranatha Mining, Inc. v. Pierce Cy., 59 Wn. App. 795, 801 P.2d 985 (1990) and seeks to apply its version of that holding to an issue different from that in Maranatha. Therefore, I dissent.16
In Maranatha, the court was concerned with the authority of the Pierce County Council under section 18.10.680 of the county code to review an examiner's decision to issue or deny an unclassified use permit. That section sets forth the procedure to be followed when applications are made for zone *626changes of nonareawide applicability, unclassified use permits, planned development districts and potential zones. PCC 18.10.680(A). In the case under review, we are not concerned with reviews of the examiner's role in considering applications for such zone changes or permits. We are here reviewing a decision of the Pierce County Planning Department as to whether a nonconforming use has been abandoned and the examiner's review of that decision. The procedures followed in these matters are governed by PCC 18.10.630(I).17 The role of the examiner in each of these two situations varies substantially.
In the grant or denial of an application for a zone change or permit, the examiner makes the initial decision or determination. PCC 18.10.680(D)(8), (9). The examiner's findings which support the examiner's decision or determination are *627required specifically. PCC 18.10.680(D)(9). On appeal from the examiner's decision or determination, the County Council may request additional information of the appellant or examiner and may adopt, amend and adopt, reject, revise, amend and revise the findings, conclusions and decisions of the examiner. PCC 18.10.680(E)(2)(d). If the examiner's decision is to be amended or reversed, the Council prepares a written decision giving its findings of fact and conclusions insofar as they may differ from those of the examiner. PCC 18.10.680(E)(2)(e).
Contrasted with the procedure governing applications for a zone change or permit described above is the procedure governing the examiner's review of administrative decisions, the case now before us. Section 18.10.630(1) of the Pierce County Code governs that process. Under this process, the examiner is not the original decisionmaker as he is in the grant or denial of a permit. He is, rather, the first reviewing authority of the Planning Department. The examiner is provided all of the records of the administrative officer pertaining to the determination under appeal together with such additional written report as may be pertinent. PCC 18.10.630(I)(2)(b). While the examiner may reverse, affirm or modify the determination, there is no requirement or provision for findings by the examiner.
It is true, as noted by the majority, that the examiner's decision of an appeal of the administrative decision may be appealed to the Council as are appeals of zone changes and permits. PCC 18.10.630(1X3). This in turn, within the confines of PCC 18.10.630, refers to PCC 18.10.630(H).
This latter section simply provides that appeals to the Council must be made within 10 days of the examiner's decision and that the Council's procedures "as to meeting notice and review shall be the same as set forth in Section 18.10.680 of this Code." PCC 18.10.630(H)(2). This is scant authority to elevate the examiner's findings reviewing an administrative decision to the exalted position in which the majority places them when they were neither provided for nor required by the code.
*628Since the county code makes no provision for findings or conclusions by the examiner in his review of administrative decisions by the Planning Department, I would focus on the decision made here by the Council. In my view, the Council's decision cannot be classified as arbitrary or capricious.
If my analysis of the differing roles of the examiner in reviewing administrative decisions and in the approval or rejection of zone changes is a distinction without a difference, there is yet another compelling reason why I dissent. We have here a classic example of the process by which dictum in an earlier ruling is elevated to the lofty status of judicial precedent without any supporting analysis.
The majority at page 619 states that Maranatha determined that RCW 36.70.970 does not authorize the County's legislative body to combine a system that allows it to substitute its judgment for the examiner with a system that limits its role on factual issues to determine only if the examiner's findings are supported by substantial evidence. According to the majority, the County's choice of systems stripped the Council of any authority to alter the examiner's factual determinations.18 Having determined that the Council in essence lacks fact-finding authority, the majority focuses on the examiner's findings since in the majority's view the examiner was the "highest forum that exercised fact-finding authority." Majority, at 618. In light of the appellate court's deference given to the factfinder's views on credibility and the weight given competing inferences by him, the majority comes to the predictable result of affirming the examiner's findings.
The majority is in error. Maranatha did point out that the statute's two choices outlined in RCW 36.70.970 were to confine the examiner's authority to making recommendations with the decision reserved solely to the legislative body or *629whether the examiner will be the decisionmaker with the legislative body acting in an appellate role. The statute does not place limits on the legislative body's ability to make factual determinations insofar as such determinations differ from the examiner's. While the majority there implied that a combination of features may be inappropriate, it was careful to note that the Pierce County Code provided that if the Council decides to amend or reverse the examiner, it must prepare a decision with findings and conclusions insofar as. they may differ from the examiner's. Maranatha, 59 Wn. App. at 802. It did not strike down the Council's authority to make its own findings and conclusions so long as they may differ. It did not limit the Council's authority solely to that of determining whether or not the examiner's findings were supported by substantial evidence. The majority in Maranatha wisely refrained from making such a broad pronouncement. The essence of the majority's holding in Maranatha is contained in the following:
It follows, under the general law coupled with the specifics of the Pierce County Code, that the Council was not required to make findings unless it disagreed with the examiner's. It also follows that because the Council did not make findings it did not disagree with the examiner's findings and is, therefore, bound by them.
Maranatha, 59 Wn. App. at 802.
Implicit in Maranatha's holding is the proposition that if the Council disagreed and entered findings, the Council's decision would be the final administrative decision. Such would appear to be consistent with the intent of the Legislature in enacting RCW 36.70.970.19
*630In the event the county legislative authority elects to adopt the hearing examiner system in land use matters, two options are available. In one, the examiner's decision is merely a recommendation and the decision is reserved to the county council. In the other, the County allows the examiner's decision to stand unless the decision is appealed within the specified time limits. In the event of an appeal, the County's legislative body may approve, reject, amend or alter the examiner's decision. There is nothing to suggest that the statute limits the County's legislative body's authority in the latter option. As a matter of fact, such an interpretation is in keeping with the State Legislature's concept of administrative review of an administrative law judge's decision in at least one state agency.20
Finally, in my view, the Council did enter a critical finding of fact, contrary to the examiner's finding, which deprives Lige & William B. Dickson Company's status as a lawful nonconforming user of the premises. The examiner in a finding, but stated as a conclusion in conclusion of law 6, determined,
6. The evidence, although not conclusive, is sufficient by a preponderance to establish that since June 1977, Lige Dickson Company has not discontinued nor intended to abandon, such use for a period of one year.
The Council in resolution R 86-172 determined, contrary to the examiner, the following:
Whereas, the Pierce County Council found that the Hearing Examiner erred in Finding Number 5[21] and Conclusion Num*631ber 6 in finding and concluding that Lige Dickson Company had proved by a preponderance of the evidence that the site had been used as a contractor's storage yard continuously since 1976.
Although not in the form of a finding that is commonly rendered by a trial court, it is obvious that the Council found on conflicting evidence that Lige & Wilham B. Dickson Company did not use the site as a contractor storage yard continuously since 1976 and by inference has discontinued use of the site for a 1-year period. Since, as the majority has observed, the evidence was conflicting in this critical factual issue the Council's finding is supported by substantial evidence. I would reverse the Superior Court's ruling and affirm the ruling by the Pierce County Council.
After modification, further-reconsideration denied June 17, 1992.
Review denied at 120 Wn.2d 1008 (1992).
I dissented in Maranatha and I continue to adhere to my views expressed therein. My dissent here acknowledges that Maranatha is controlling authority in Division Two.
PCC 18.10.630(1).
"I. The Examiner Shall Hear and Decide Appeals of Administrative Decisions. The Examiner shall have the authority to hear and decide Appeals from any order, requirement, permit, decision, or determination made by an administrative official in the administration or enforcement of this Code.
"1. Appeals - Time Limit. Appeals may be taken to the Examiner by any person aggrieved, or by any officer, department, board, or bureau of the County affected by any decision of an administrative official in the administration or enforcement of this Code. . . .
"2. Appeal - Notice of Time and Place. Upon the filing of an Appeal with the Planning Department, the matter shall be set for consideration, and notice given . . .
"b. Upon receiving notice of the Appeal, the officer from whom the Appeal is being taken shall forthwith transmit to the Examiner all of the records pertaining to the decision being appealed from, together with such additional written report as deemed pertinent.
"c. Scope of Authority on Appeal. The Examiner may, in conformity with this Code, reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as should be made and, to that end, shall have all the powers of the officer from whom the Appeal is taken, insofar as the decision on the particular issue is concerned, and in making its determination the Examiner may hear any pertinent facts bearing on the case.
"3. Appeals to the Council. The decision of the Examiner on an Appeal of an administrative decision may be further appealed to the Council in the same manner as are Appeals of zone changes and permits."
This will come as. some surprise to the Pierce County Council since the ■county ordinance expressly allows the Council to "adopt, amend and adopt, reject, reverse, amend and reverse the findings'... of the Examiner." PCC 18.10.680(E)(2)(d). It will no doubt come as a surprise to many legislative bodies of counties and municipalities that have adopted similar ordinances or resolutions. See Tacoma Municipal Code 1.23.130; Thurston County Code 2.06.080; Kitsap County Code 2.60.050.
When Senate Bill 2421, which was ultimately codified into RCW 36.70.970, in its early stages was considered by the Senate, Senator Goltz, in response to Senator Francis’s concerns about the broad authority of the hearing examiner, stated, in part:
It is my impression that the legislative body however, and this may not be an answer to your question, it may have been the question I was anticipating. The legislative body does retain final jurisdiction of the matter and it does set the specific conditions under which the hearing examiner is to operate.
Senate Journal Register, 1st Ex. Sess. (1977).
Because these comments were to an early version of the bill, which was ultimately revised by virtue of the free conference, they may be of little help in *630detenniniag the issue. Nevertheless, there was obvious concern in the Legislature that ultimate authority in such matters be lodged with the county legislative body.
The Commissioner of Employment Security is authorized to affirm, modify or set aside a decision by an administrative law judge on a disputed claim for benefits and make findings in support of the Commissioner's decision. RCW 50.32.080, .097.
21 The examiner's finding 5 recited that the Planning Department determined that Lige & William B. Dickson Company has nonconforming rights to use its gravel pit as a contractor storage yard.