¶8 The Board brings this appeal seeking reversal of the superior courts order.
ANALYSIS
¶9 The Boards appeal comes to us via the Administrative Procedure Act, chapter 34.05 RCW. In this context, we review the Boards decision, not that of the superior court. Goldsmith v. Dept of Social & Health Serv., 169 Wash. App. 573, 583-84, 280 P.3d 1173 (2012). Because the Boards decision here turns on statutory interpretation, our review is de novo. State v. Evans, 177 Wash.2d 186, 191, 298 P.3d 724 (2013). We begin with the statutes plain language, and end our analysis there if the text is unambiguous. Id. at 192, 298 P.3d 724. In addition, if a statute has been interpreted by state agencies with relevant administrative expertise, we will give that agencys legal interpretation substantial weight. Verizon Nw., Inc. v. Empt Sec. Dept, 164 Wash.2d 909, 915, 194 P.3d 255 (2008).
Marijuana licenses and the GMA
¶10 According to the County, the GMA requires the Board to deny marijuana licenses to marijuana producers, processors, and retailers whose site locations are in areas with local zoning restrictions. This argument is based on RCW 36.70A.103, which states:
State agencies required to comply with comprehensive plans.
State agencies shall comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to this chapter except as otherwise provided in RCW 71.09.250 (1) through (3), 71.09.342, and 72.09.333.
The provisions of chapter 12, Laws of 2001 2nd sp. sess.[ ] do not affect the states authority to site any other essential public facility under RCW 36.70A.200 in conformance with local comprehensive plans and development regulations adopted pursuant to chapter 36.70A RCW.
The County reasons that, because the Board is a state agency, this statute requires it to adhere to local zoning restrictions when issuing site-specific marijuana licenses.
¶11 The Board counters that RCW 36.70A.103 applies only to actions taken by a state agency acting in its proprietary capacity as the developer or operator of a public facility site. Because licensing decisions-even if site specific-do not involve a state agency acting in its proprietary capacity, it argues this statute is inapplicable.
¶12 The plain language of RCW 36.70A.103 favors the Boards approach. As worded, the statute is concerned with governmental agencies involved in siting public facilities. According to the statute, when a governmental agency is involved in siting a public facility, it must follow generally applicable zoning rules, except in certain limited circumstances.
While RCW 36.70A.103 requires governmental actors to abide by the same zoning rules as regular citizens, nothing in the statute suggests state agencies must be concerned with local zoning restrictions when engaged in purely governmental functions, such as determining the appropriateness of a state license.
¶13 Regulations promulgated by the Department of Commerce support the view that RCW 36.70A.103 is directed at governmental agencies involved in siting public facilities. Specifically, WAC 365-196-530(2) states:
The department construes RCW 36.70A.103 to require each state agency to meet local siting and building requirements when it occupies the position of an applicant proposing development, except where specific legislation explicitly dictates otherwise. This means that development of state facilities is subject to local approval procedures and substantive provisions, including zoning, density, setbacks, bulk and height restrictions.
(Emphasis added). Outside of the siting and development context, the regulations recognize the GMA imposes no strict obligations on state agencies. Instead, the GMA merely implies that governmental agencies should take into account growth management programs when engaged in discretionary decision making. WAC 365-196-530(4).
¶14 The Boards decision to issue a marijuana license is not a siting activity. Although the licenses are location-specific, they do not confer final authority to actually open a marijuana site. The Boards regulations specify a license holder must comply with local laws-including zoning requirements-before going into business. WAC 314-55-020(15).
¶15 Because a marijuana license does not authorize the siting of a marijuana business, the Board cannot fail to comply with RCW 36.70A.103 merely by conferring marijuana licenses without regard to zoning restrictions. Zoning laws remain in full force regardless of whether a license is issued. The Boards decision to license a business in a zoning-restricted area may mean the license will have little utility. But nothing in the limited nature of the Boards license changes local development plans or undermines the GMAs policy of coordinated development.
License requirements under the marijuana laws
¶16 The County claims that even if the GMA is inapplicable to the Boards licensing decisions, the states marijuana laws themselves require the Board to adhere to local zoning rules in issuing licenses. The County points to RCW 69.50.331(7), which requires the Board to notify local governments of marijuana license applications and renewals, and to allow an opportunity for input. In addition, RCW 69.50.331(10) specifies that in making a licensing decision, the Board must give substantial weight to objections from local governmental authorities based on concerns regarding chronic illegal activity.
¶17 The Countys reliance on the marijuana licensing statute is misplaced. That statute requires only communication with local governments; it does not require compliance with local zoning laws. If the legislature intended to require the Board to adhere to local zoning laws, it would have done so directly. See RCW 69.50.331(8)(e). The marijuana licensing statute sets forth numerous circumstances requiring license denial. RCW 69.50.331(1)(b), (2)(b), (8). Noncompliance with local zoning standards is not one of them.
¶18 Instead of tethering the Boards licensing decisions to local zoning standards, the legislature has explicitly recognized that the Boards licensing decisions are independent of local zoning restrictions. In 2017, the legislature amended the marijuana laws to address the plight of marijuana licensees who have been unable to open their businesses due to zoning restrictions. LAWS OF 2017, ch. 317, § 1. Normally, a licensees failure to begin operations within 24 months of licensure will result in license forfeiture. RCW 69.50.325(3)(c)(ii)(B). But under the 2017 amendment, a licensee who is unable to open a business due to zoning restrictions is protected from the forfeiture rule. RCW 69.50.325(3)(c)(v). By adopting protections for licensees who cannot begin operations because of zoning restrictions, the legislature recognized that the Boards licensing decisions are not dependent on zoning regulations. Instead, the legislatures action indicates an understanding that a licensing decision is separate and apart from zoning compliance.
¶19 While nothing in the marijuana licensing statute requires the Board to issue licenses in conformance with local zoning restrictions, there is also no prohibition on doing so. Outside a limited set of prohibitive circumstances, RCW 69.50.331(1)(b), (2)(b), and (8), the legislature granted the Board discretionary authority over licensing decisions. RCW 69.50.331(1)(a), (2)(a). In its implementing regulations, the Board has recognized it has broad discretionary authority to approve or deny a marijuana license. WAC 314-55-050. The Boards regulations set forth a list of nonexclusive factors relevant to marijuana licensing decisions. Id . In fact, the final regulatory factor is a broadly worded catchall, providing that the Board may deny a license if it determines issuance of the license will not be in the best interest of the welfare, health, or safety of the people of the state. WAC 314-55-050(17).
¶20 It is not for this court to say whether, or to what extent, the Board should consider zoning restrictions in making its discretionary licensing decisions. The Board must treat each license application individually and consider a host of different circumstances in determining whether to grant a license. WAC 314-55-020, - 050. Zoning restrictions are just one potential consideration. While there appears to be broad support for imposing zoning restrictions on the Boards licensing authority, this is a matter that must be taken up by the legislative or rule-making process. It is not a matter to be resolved by the judiciary.
CONCLUSION
¶21 We reverse the superior court and affirm the Boards determination that it is not required to deny marijuana license applications based on local zoning restrictions.
WE CONCUR:
Siddoway, J.
Fearing, J.
RCW 36.70A.103 was amended in 2001 to include exceptions from local zoning ordinances for construction of sex offender transition facilities and facilities on McNeil Island. Laws of 2001, 2d Spec. Sess., ch. 12, § 203.
State agencies are not held to the same standards as private parties with respect to siting designated correctional facilities, as set forth in RCW 71.09.250(1) through (3), RCW 71.09.342, and RCW 72.09.333.
The Department of Commerce is tasked with a limited amount of state-wide GMA rule making. See RCW 36.70A.030(6), .050, .190.
This, of course, depends on whether the license holder can obtain a variance.
The County argues the 2017 amendments favor its claim that the Board is illegally ignoring zoning restrictions in issuing marijuana licenses. According to the County, the legislature amended the marijuana statute out of recognition of the Boards ongoing illegal conduct and in order to grant reprieves to marijuana licensees who receive illegal licenses. We find this analysis unconvincing. If the legislature had thought the Board was illegally ignoring zoning restrictions when conferring licenses, it would have taken direct responsive action. Illegal activity by a governmental agency would be a serious problem. If the legislature had believed the Board was acting illegally, it would have condemned the Boards actions and added zoning restrictions to the list of prohibitions on marijuana licenses under RCW 69.50.331.