JONES v. CITY OF TACOMA,, 29657-8-II (Wash.App. 7-29-2003)

No. 29657-8-IIThe Court of Appeals of Washington, Division Two.
Filed: July 29, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 02-2-04146-4 Judgment or order under review Date filed: 10/28/2002

Counsel for Appellant(s), Kyle Joseph Crews, Attorney at Law, Tacoma Municipal Bldg, 747 Market St. Rm 1120, Tacoma, WA 98402-3701.

Counsel for Respondent(s), Kristopher Ian Tefft, The Building Industry Assoc of Wa, 111 W 21st Ave, P.O. Box 1909, Olympia, WA 98507-1909.

HUNT, C.J.

The City of Tacoma appeals the Pierce County Superior Court’s reversal of the Tacoma Land Use Hearing Examiner’s denial of a wetlands development permit to Marlene Jones under an `extraordinary hardship’ exemption in the City’s ordinances. The City argues that the Hearing Examiner properly denied the permit because (1) Jones’s predecessor in interest `segregated’ the land when he sold Jones two lots and, thus, created the hardship himself; and (2) res judicata and collateral estoppel preclude Jones’s permit because her predecessor in interest had already been given an extraordinary hardship permit when he had applied to build on two other lots in the same plat, which the same wetland crossed.

We hold that the superior court ruled correctly that (1) Jones’s predecessor did not create the hardship in selling Jones two of the previously platted six lots, and (2) Jones was entitled to the hardship exemption. Accordingly, we affirm the superior court’s reversal of the hearing examiner’s denial of Jones’s application for a wetlands development permit.

FACTS I. Background
Marlene Jones owns Lots 1 and 2, Block 16, of Samuel Osborne’s First Addition, a six-lot subdivision platted in 1909. A 20-to 30-foot wide Type III Wetlands (under the City’s Critical Area Preservation Ordinance (CAPO)) drains through a ravine across all six lots. Such wetlands normally require a 50-foot buffer; thus, lots 5 and 6 could not be developed without a special permit granting an exception to this buffer requirement. Taking Jones’s two lots together, the resultant parcel is 50-feet wide and 120-feet deep.

The 1909 subdivision plat appears as follows:

View Map

Administrative Record (AR) at 122.

II. Westlands Prior Permit
In 1997, West Land R.E., LLC owned all six lots in the subdivision. West Land applied to the City for a permit to build a house on lots 5 and 6. The City Land Use Administrator (LUA) found that [b]ecause of the size of the wetland on the site, the applicant is unable to develop any portion without entering the 50 foot buffer. AR at 431. The City approved West Lands permit h conditions, at 424, which do not expressly prohibit developing lots 1 through 4.[1] The record does not specify that these conditions run to lots 1 through 4, and no wetland-dependent conditions restricting lots 1 through 4 were recorded on their titles.

After building a house on lots 5 and 6, West Land conveyed those lots; it also conveyed lots 3 and 4 to another party, and lots 1 and 2 to Jones, the mother of West Lander.[2]

III. DENIAL OF JONES WETLANDS DEVELOPMENT PERMIT
In 2000, Jones, through her son as agent, applied for a wetlands development permit under the City’s ordinary hardship exemption. She proposed (1) building a two-story, 1,200-square-foot, single family home; and (2) mitigating the impact on the wetlands and buffer by removing non-native vegetation and planting native vegetation that would enhance the nature and function of the wetland are

a. The City agreed that this is the maximum mitigation practicable.

Nonetheless, the City Land Use Administrator denied Jones application on grounds that (1) the wetland mitigations were inadequate; and (2) Jones did not qualify for the ordinary hardship exemption under the City ordinance, reasoning that West Landale of lots 1 and 2 was an action gating the property. The City Hearing Examiner affirmed denial of the permit on both grounds.

IV. LUPA APPEAL
Jones filed a Petition for Review under the Land Use Petition Act (LUPA), Chapter 36.70C RCW, and a Complaint for Damages. She claimed that denial of a permit to build a house on her land was an unconstitutional taking, a state substantive due process violation, a civil rights violation under 42 U.S.C. § 1 1983, and an arbitrary and capricious government action. The superior court bifurcated the LUPA appeal from the damages claims and accepted jurisdiction on only the LUPA appeal.

The court ruled that (1) in denying Jones the permit, the Hearing Examiner had erroneously interpreted the law; and (2) the sale of lots 5 and 6 to Jones was not a segregation division of the property under the City ordinance so as to defeat eligibility for a wetlands buffer exemption. The City appeals.

ANALYSIS I. STANDARD OF REVIEW
The Land Use Petition Act provides the exclusive means of judicial review of land use decisions.RCW 36.70C.030(1). A court may grant relief only if the party seeking relief has carried the burden of establishing that The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; . . . . (d) The land use decision is a clearly erroneous application of the law to the facts; . . . . (f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130.

We apply these standards to the record before the Hearing Examiner, standing the shoes of the superior court. HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 468, 61 P.3d 1141 (2003) (quoting Citizens to Preserve Pioneer Park v. City of Mercer Island, 106 Wn. App. 461, 470, 24 P.3d 1079 (2001)).

II. ERRONEOUS INTERPRETATION OF ECONOMIC HARDSHIP EXEMPTION
The Tacoma Municipal Code allows wetlands development if an applicant can demon strate that strict application of the wetlands buffer requirement will deny all reasonable economic use of the property. But, [t]he inability to derive reasonable economic use is not the result of actions by the applicant in segregating or dividing the property in a way that makes the property unable to be developed after the effective date of the ordinance codified in this chapter.

TMC 13.11.250(E); Clerkapers (CP) at 23. The City argues that this sale was a segregation disqualifying the property from the wetlands buffer exemption.

We disagree.

The property was subdivided into six lots in 1909. West Land’s of two existing lots to Jones clearly did not result making the property unable to be developed. 1 and 2 had been unable to be developed even when West Land applied for the 1997 permit. Tacomad Use Administrator (LUA) had found that the wetlands affects all of lots 1 through 6 and, [b]ecause of the size of the wetland on the site, the applicant is unable to develop any portion without entering the 50 foot buffer. AR at 431 (emphasis added).[3] Accordingly, we hold that the current Hearing Examiner erroneously interpreted the ordinance to deny Jonesmit when it reasoned to the contrary.

II. RES JUDICATA AND COLLATERAL ESTOPPEL NOT APPLICABLE
The City also asserts, for the first time on appeal, that the doctrines of res judicata and collateral estoppel preclude Jones from receiving an extraordinary hardship permit because her predecessor in interest had already obtained such a permit, essentially contending that Jones and her predecessor cannot ask for the same exemption twice.[4]

Assuming that this argument is timely, it finds no support in the law and ignores that (1) Jones is seeking a permit for different lots, not those for which West Land received a permit; and (2) West Land’s permit was given under the public interest test, not the traordinary hardship testJones now asserts. Because Jones permit thus involves a different subject matter and different, issues, the doctrines of res judicata and collateral estoppel do not apply. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995); Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983).

III. CONSTITUTIONAL PROPERTY RIGHTS ? REGULATORY TAKING
Because we hold that the Hearing Examiner erroneously denied Joneseconomic hardship wetlands development permit, there was no taking of her land without just compensation. Therefore, we do not address Jonesederal and state constitutional property rights issues, even assuming, without agreeing, that these issues are before us as part of the LUPA appeal.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON and SEINFELD, JJ., concur.