Rory Higham v. Pierce County
47836-6
| Wash. Ct. App. | Nov 8, 2016Background
- Rory Higham owned a 3.56-acre parcel with on‑site and adjacent off‑site wetlands; Pierce County wetland regulations established buffers depending on wetland category.
- In 2003 County approved a mitigation agreement (2003 Wetland Approval) reducing the on‑site pond buffer to 37.5 feet to resolve a permit violation; that approval applied only to the on‑site wetland, existing structures, and expired if conditions weren’t completed within three years.
- In 2004 Higham obtained a boundary line adjustment adding a 30' ‘‘pipe stem’’ to his parcel; the approval warned future permits were not guaranteed; Higham later built a gravel driveway along the pipe stem without permits, some of which lay in the buffer of an off‑site Category II wetland.
- In 2011 Higham applied for variances to reduce required 75‑foot buffers (for a moderate‑intensity use) to accommodate a new single‑family residence and to legitimize the unpermitted pipe‑stem driveway; county staff recommended denial and the hearing examiner denied the variance.
- Higham argued collateral estoppel barred enforcement of the 75‑foot buffer (relying on the 2003 approval) and that the boundary line adjustment authorized the driveway; the superior court and Court of Appeals affirmed denial and held collateral estoppel did not apply.
- The Court of Appeals affirmed the hearing examiner’s findings (substantial evidence supported findings that alternatives existed, no mitigation was proposed, and the 2003/2004 documents did not authorize the new uses) and awarded County appellate fees under RCW 4.84.370.
Issues
| Issue | Higham's Argument | Pierce County's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel prevents County from enforcing a 75‑ft buffer | 2003 Wetland Approval fixed buffer at 37.5 ft and precludes relitigation | 2003 approval applied only to on‑site wetland/existing structures and expired; did not decide later uses | Collateral estoppel does not apply; issues were not identical and approval was limited/expired |
| Whether 2003 Wetland Approval or 2004 boundary adjustment established buffer rights for 2011 proposal | 2003 approval and 2004 adjustment authorized reduced buffer and driveway | 2003 approval limited to on‑site pond/existing structures and required new review for new development; 2004 adjustment did not guarantee future permits | Court rejects Higham’s reliance; approvals did not establish rights to later development or off‑site buffer reduction |
| Whether hearing examiner properly denied wetland variance under PCC 18E.20.060(D)(3)(a) (four criteria) | Met all four criteria; limited alternatives because of septic and site constraints; prior work minimized impacts | Applicant failed to avoid impacts, offered no mitigation, and alternatives existed outside buffers | Denial affirmed: substantial evidence supports findings that no special circumstances, no mitigation, not necessary to preserve substantial right, and grant would undermine regulations |
| Whether County engaged in unlawful procedure by relying on staff report | Staff report evidence was inadmissible and decision thus unlawful | Report was incorporated into findings; Higham offered only passing argument insufficient under RAP 10.3 | Procedure challenge waived/inadequately briefed; no reversible error found |
Key Cases Cited
- World Wide Video of Wash., Inc. v. City of Spokane, 125 Wn. App. 289 (2005) (elements for collateral estoppel/issue preclusion)
- Olympic Tug & Barge, Inc. v. Wash. State Dep’t of Revenue, 163 Wn. App. 298 (2011) (collateral estoppel requires identical issues litigated previously)
- Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299 (2004) (collateral estoppel framework)
- Habitat Watch v. Skagit County, 155 Wn.2d 397 (2005) (deference to local land‑use expertise under LUPA)
- Cingular Wireless, L.L.C. v. Thurston County, 131 Wn. App. 756 (2006) (standards of review under LUPA)
- Yakima County v. E. Wash. Growth Mgmt. Hr’gs Bd., 168 Wn. App. 680 (2012) (purpose and function of wetland buffers)
- Freeburg v. City of Seattle, 71 Wn. App. 367 (1993) (deference to factfinder on credibility and weight of evidence)
- Brownfield v. City of Yakima, 178 Wn. App. 850 (2013) (RAP 10.3 requirement that issues be argued with authority and record citations)
- Tacoma Northpark, L.L.C. v. NW, L.L.C., 123 Wn. App. 73 (2004) (prevailing party may recover appellate attorney fees where authorized)