                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          November 8, 2016

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 RORY HIGHAM,                                                         No. 47836-6-II

                        Appellant,

         v.

 PIERCE COUNTY acting through its                              UNPUBLISHED OPINION
 PLANNING & LAND SERVICES
 DEPARTMENT, a municipal corporation,

                        Respondent.


       SUTTON, J. — Rory Higham appeals the superior court’s order which affirmed the Pierce

County Hearing Examiner’s denial of his application for a wetland buffer variance. We hold that

the hearing examiner correctly interpreted and applied the variance criteria, the findings of fact are

supported by substantial evidence, and the findings of fact support the conclusions of law. We

affirm the hearing examiner’s decision to deny the wetland buffer variance. We also affirm the

superior court’s order that the doctrine of collateral estoppel does not apply and award Pierce

County its reasonable attorney fees and costs on appeal.

                                              FACTS

                                 I. 2001 PROPERTY DEVELOPMENT

       In 2000, Higham purchased 3.56 acres of land on Chesney Road East in Tacoma. There

were wetlands on the property, including a natural pond. The original property had an existing 30-

foot easement on the southeast side of the property, which connected the property to Chesney Road
No. 47836-6-II


East and provided driveway and utility access to the property. The property also contained a

mobile home and two barns.

         In 2001, Higham cleared and graded the site without first obtaining a permit from Pierce

County in violation of the county’s wetland regulations.1,2 In the northeast portion of his property,

Higham excavated an area adjacent to the pond.

                        II. 2003 WETLAND BUFFER REDUCTION AGREEMENT

         In 2003, Higham entered into a mitigation agreement (2003 Wetland Approval) to resolve

his violation of the wetland regulations. The 2003 Wetland Approval permitted Higham to

enhance the area around the pond with native trees and vegetation and to fence off the area so that

the wetlands would not be disturbed. In return, the county agreed to reduce the wetland buffer for

the pond from 50 feet to 37.5 feet. The 2003 Wetland Approval stated the following,

         These conditions apply to the on-site wetland and buffer. The wetland has been
         categorized as a Category III wetland. A 37.5-foot wetland buffer is being
         allowed. This reduction has been allowed with the required restoration.
         ....
         This wetland approval is being accepted for correction of the violation and top [sic]
         document existing structures and activities on site that were either approved or were
         pre-existing. A new wetland review will be required for any change of use
         associated with any new proposed development activities or structures on the
         site. If none of the correction/restoration activities occurs on the site in three years,



1
    Chapter 18E.30 Pierce County Code.
2
  In 2001, the on-site wetland was designated as a Category III wetland and required a 50-foot
buffer. In 2011, the wetland was recategorized as a Category II wetland and required a 100-foot
buffer. However, Pierce County concedes that the proposed use for this site based on development
type is a “moderate intensity” use and that a reduced wetland buffer of 75-feet is permitted. See
Suppl. Clerk’s Papers 89 (former Pierce County Code 18E.20.060); Administrative Record (AR)
at 40.



                                                    2
No. 47836-6-II


          the wetland approval will expire and the parcel may again be subject to
          compliance/correction.
          The issuance of this wetland approval does not constitute approval of other
          proposed projects by the landowner.
          ....
          WETLAND CONDITIONS:
          1. The following activities are regulated within a wetland, stream, and/or their
          buffers unless exempted by Section 18E.20.030 or as allowed pursuant to an
          approved mitigation plan.
          ....
          e. Constructing, reconstructing, demolishing, or altering the size of any structure
          or infrastructure.

Administrative Record (AR) at 84-85.

                               III. 2004 BOUNDARY LINE ADJUSTMENT

          In September 2003, Higham acquired a 30-foot by 240-foot strip of property (pipe stem)

adjacent to the southwest corner of his property. Pierce County3 approved a boundary line

adjustment in 2004 (2004 Boundary Line Adjustment) to add the 30-foot strip to Higham’s existing

parcel.

          The 2004 Boundary Line Adjustment stated that the county’s approval was “not a

guarantee that future permits will be granted for any structure or development within [the] lot.”

AR at 88. The 2004 Boundary Line Adjustment survey map labeled the revised property line as a

“driveway.” AP at 89. Higham did not apply for the required permits or a wetland variance to

develop a driveway. Higham then constructed a gravel driveway over the pipe stem portion of his




3
  The Pierce County Department of Planning and Land Services approved the boundary line
adjustment. The hearing examiner found that the Resource Management Section did not review
or approve boundary line adjustments at that time.


                                                  3
No. 47836-6-II


property and along the west side of his property for a total distance of 690 feet. The driveway was

within the required 75-foot buffer of an off-site Category II wetland to the west of his property.

       In June 2005, the county’s health department approved a permit for Higham to construct

an irrigation well on his property. The application for the well listed a proposed residence on the

property.

                           IV. 2011 WETLAND VARIANCE APPLICATION

       In 2010, Higham applied for a permit to construct a proposed single-family residence. In

February 2011, he applied for a wetland variance (1) to approve the previously constructed pipe

stem driveway within the required buffer of the off-site wetland to the west of his property and (2)

to allow him to construct a new/additional single-family residence within the required 75-foot

wetland buffer for the on-site wetland.

       The on-site wetlands and the off-site wetlands were designated Category II wetlands, which

required a buffer of 100 feet from the edge of the wetland. Pierce County Code (PCC) 18E.30.060

establishes wetland buffers depending on the wetland category. The proposed use for this

Category II site was a “moderate intensity” use and a reduced buffer from the edge of each wetland

of 75 feet was permissible. AR at 41. Higham applied for a variance to reduce the wetland buffer

from 75 feet to 45 feet to accommodate a single-family residence and to reduce the wetland buffer

from 75 feet to 15 feet to accommodate the pipe stem driveway.

       Higham applied for a wetland variance under PCC 18E.20.060(D)(3), and stated in his

application that the variance was for the

       development of a single-family homesite within the northwestern portion of the
       project site with associated septic drain field, garage, onsite well, and access
       driveway. The existing small home within the southeastern portion of the project



                                                 4
No. 47836-6-II


       site shall be retained as an Accessory Dwelling Unit (ADU). This request shall
       require a reduction of standard wetland buffers for onsite and offsite wetland areas.

AR at 48.

       Under PCC 18E.20.060(D)(3)(a), the hearing examiner had the authority to grant a

variance if the following four criteria were met:

       1. There are special circumstances applicable to the subject property or to the
       intended use such as shape, topography, location, or surroundings that do not apply
       generally to surrounding properties or that make it impossible to redesign the
       project to preclude the need for a variance;
       2. The applicant has avoided impacts and provided mitigation to the maximum
       practical extent;
       3. The buffer reduction proposed through the variance is limited to that necessary
       for the preservation and enjoyment of a substantial property right or use possessed
       by other similarly situated property, but which because of special circumstances is
       denied to the property in question; and
       4. Granting the variance will not be materially detrimental to the public welfare or
       injurious to the property or improvement.

Suppl. Clerk’s Papers at 90 (PCC 18E.20.060(D)(3)(a)(1-4)).

       On May 4, 2011, the hearing examiner held a hearing on Higham’s wetland variance

application. The county biologist testified for the Department of Planning and Land Services based

on the county’s staff report, which findings, conclusions and recommendations the hearing

examiner adopted.4 The county biologist testified that Higham applied for a wetlands buffer

variance for a proposed single-family residence and shop. The county biologist also testified that

the site selected by Higham for the single-family residence and shop already contained a pre-


4
  The Pierce County Department of Planning and Land Services Staff Report’s findings were fully
incorporated into the hearing examiner’s finding of fact 5, which states, “The Staff Report with its
attachments adequately identifies the issues, sets out proposed findings, conclusions, and
recommendations and is hereby incorporated by reference as though fully set forth.” AR at 31.



                                                    5
No. 47836-6-II


existing mobile home, two sheds, and an unpermitted driveway in the southwest corner of the site.

The county biologist described the 2003 Wetland Approval and testified that the approval had

expired on June 10, 2006. The county biologist also testified about the 2004 Boundary Line

Adjustment and Higham’s construction of the pipe stem driveway.

       The county biologist testified that the staff reported the following key findings:

       8. The applicant proposes to permanently eliminate approximately 10,000 square
       feet of buffer, and reduce the buffer width to approximately 20 to 25 feet in two
       places between the driveway and the off-site wetland to the west, to about 15 feet
       between the driveway and the off-site wetland to the south, and to about 45 feet
       between the house and the on-site wetland.
       ....
       11. The applicant has not proposed any mitigation for any of the current or
       proposed impacts.
       12. Approximately 1.3 acres of useable area is located outside of the wetland and
       buffer areas, prior to any buffer reduction. Some of the existing, legally established
       development on the site (the existing mobile home, driveway to the mobile, and
       two sheds west of the mobile) are located partially within the buffer areas of the
       off-site wetlands. The remaining area is large enough to accommodate the
       proposed house, driveway, and shop without additional buffer reduction.

AR at 42.

       The county biologist testified that there were other alternatives to the proposed site for the

single-family residence and shop because the project could be redesigned with no buffer reductions

to avoid or minimize any impacts, but that Higham had not proposed any mitigation or addressed

any impacts.

       Higham’s biologist disagreed that other alternatives existed and testified that

       the only place – other than where the existing septic system is for the [accessory
       dwelling unit], that’s approximately the only place on the site where that septic
       system is going to fit.
       ....



                                                 6
No. 47836-6-II


              As identified by the county, there’s not going to be a direct impact to the
       wetlands or streams. We’ve avoided those impacts. We believe we’ve minimized
       those impacts by much of the prior work that was done in establishing wetland and
       buffer areas on-site, the very western portion of the site, the western property
       boundary, is going to be fenced. So that fence will isolate on-site activities from
       adjacent wetland areas to the west.
               And so that we do not really expect this homesite to result in a negative
       impact to the functions of adjacent or on-site wetlands and adjacent wetlands and
       buffers.
       ....
               And again . . . we generally disagree with county staff on the location of the
       homesite. We believe the homesite is consistent with wise utilization of the
       property. Yes, we’re going to encroach into buffers that are imposed onto the site.
       We have looked at alternatives of using the existing easement to access the
       homesite, but in doing that, we’re also crossing through buffer. So using the
       existing driveway that was created within the [boundary line adjustment] seems to
       make more sense than creating additional roadway to connect the southeast corner
       to the southwestern corner to access the new homesite.

Verbatim Report of Proceedings of Hearing before Deputy Hearing Examiner (May 4, 2011) at

24-28 (VRP).

       Higham’s biologist testified that Higham wanted to locate his single-family residence on

the northern portion of the property so that the residence could be constructed outside of the

wetlands and buffers because “[t]he site has been and continues to be managed as livestock pasture.

And we don’t want to lose that use by the addition of a homesite on this property.” VRP at 26.

Higham also testified that he believed that the county’s approval of the 2004 Boundary Line

Adjustment meant that the county also had approved construction of the new pipe stem driveway.

       On May 19, 2011, the hearing examiner entered the following relevant findings of fact:

       6. [Higham] has a possessory interest in a [rectangular] shaped 3.56 acre site in a
       Mid County Community Plan area of Pierce County. Legal access to the site is
       provided via an easement from the southeast corner of the site southward to
       Chesney Road. Approximately 1.3 acres of the site is located outside of wetland
       and buffer areas. Currently there is a 924 square foot single-family mobile home


                                                 7
No. 47836-6-II


      on site. There are also two sheds west of the mobile home and an unpermitted
      second access in the southwest corner of the site.
      7. Sometime between 2003 and 2005 [Higham] constructed a second 690-foot long
      driveway from Chesney Road, through a pipe [stem] connection and all the way
      north along the west property line to an area where he proposes to construct a new
      single family home. Approximately 560 lineal feet of the second driveway is
      located within buffers of [off-site] wetlands. In addition, within the same time
      frame, [Higham] constructed a dock type structure over the onsite wetland and
      buffer area. No permits have been applied for or issued for either the driveway or
      the dock. In 2006 [Higham] commenced grading the site without a permit, a stop
      worker order was issued on January 26, 2006. Thereafter the applicant under took
      additional clearing and grading, although majority of additional work occurred
      outside of the wetland and buffer areas.
      ...
      13. Pierce County Code 18E.20.060 contains the criteria governing variance
      requests to reduce wetland buffers below standards of PCC 18E.30.060. Pierce
      County Code 18E.20.060D3(a) provides that the hearing examiner shall have
      authority to grant a variance from the requirements of PCC 18E.30.060 and PCC
      18E.40.060 when, in the opinion of the hearing examiner, all of the listed criteria
      are met. Findings with reference to each of the listed criteria are as follows:
            1. There are no special circumstances applicable to this 3.5 acre parcel such as
               shape, topography, location of surroundings that make it impossible to
               redesign this project to preclude the need for a variance. In fact during the
               hearing, it was clearly demonstrated that proposed construction could take
               place without the need for a variance.
            2. The applicant has not avoided impacts and provided mitigation to the
               maximum extent possible. In fact, he has proposed no mitigation and as
               previously stated the site contains sufficient area to build outside of the
               wetland and wetland buffer areas.
            3. A Buffer reduction is not necessary for the applicant to construct a single
               family residence on this site.
            4. Granting variances where the applicant fails to meet the strict application of
               the law undermines the regulatory purposes and principles of soning
               ordinances and the comprehensive plan. . . . The applicant has failed to
               demonstrate this request meets any criteria for the granting of a variance.
               The burden of proof is upon the applicant to demonstrate that they meet
               each of the criteria for a variance.




                                                 8
No. 47836-6-II


AR at 31-33 (some alteration in original, citation omitted). The hearing examiner then concluded

that “[Higham’s] request for a variance from the provisions of 18E.40.060 in order to construct a

single-family residence within a wetland buffer area[] of a site located at 2501 Chesney Road East”

is denied. AR at 34.

        On June 1, 2011, Higham filed a request for reconsideration of the hearing examiner’s

decision, arguing that the county was collaterally estopped from modifying the previously reduced

wetland buffer on his property. The hearing examiner denied Higham’s request for reconsideration

because it was untimely under PCC 1.22.1305 and he no longer had jurisdiction.

                          V. APPEAL OF HEARING EXAMINER’S DECISION

        On June 9, 2011, Higham appealed the hearing examiner’s decision under the Land Use

Petition Act (LUPA).6     Higham argued that Pierce County was collaterally estopped from

modifying the previously reduced wetland buffer and that the hearing examiner erred when he

denied Higham’s application for a wetland buffer variance. After a hearing, the superior court

ruled that collateral estoppel did not apply, that Higham did not meet his burden of proof under

RCW 36.70C.130(1), and affirmed the decision by the hearing examiner.

        Higham appeals.




5
  An aggrieved party affected by the decision of the hearing examiner may file a request for
reconsideration within seven working days of the date of the hearing examiner’s written decision.
AR at 6; PCC 1.22.130.
6
    Ch. 36.70C RCW.



                                                9
No. 47836-6-II


                                            ANALYSIS

       Higham argues that (1) Pierce County is collaterally estopped from enforcing a 75-foot

wetland buffer, (2) the 2003 Wetland Approval set the wetland buffer for the on-site and off-site

wetlands at 37.5 feet, and (3) the 2004 Boundary Line Adjustment approved the construction of

his pipe stem driveway. We review the decision to apply collateral estoppel de novo. World Wide

Video of Wash., Inc. v. City of Spokane, 125 Wn. App. 289, 304, 103 P.3d 1265 (2005). And we

review the decision of the hearing examiner under RCW 36.70C.130(1). We disagree that Pierce

County is collaterally estopped or that the decision by the hearing examiner to deny the variance

is incorrect or not supported by the record.

                                     I. COLLATERAL ESTOPPEL

       Higham argues that Pierce County is collaterally estopped from imposing a 75-foot wetland

buffer as to the on-site and off-site wetlands. We disagree.

       Collateral estoppel, or issue preclusion, bars relitigation of an issue in a subsequent

proceeding involving the same parties. Olympic Tug & Barge, Inc. v. Wash. State Dep’t of

Revenue, 163 Wn. App. 298, 302, 259 P.3d 338 (2011). The collateral estoppel doctrine promotes

judicial economy. Olympic Tug, 163 Wn. App. at 302. Collateral estoppel may be applied to

preclude only those issues that have actually been litigated and necessarily and finally determined

in the earlier proceeding. Olympic Tug, 163 Wn. App. at 302-03.

       The party seeking to apply the doctrine of collateral estoppel must establish each of the

following elements:

       “(1) the issue decided in the earlier proceeding was identical to the issue presented
       in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits;
       (3) the party against whom collateral estoppel is asserted was a party to, or in privity



                                                 10
No. 47836-6-II


       with a party to, the earlier proceeding; and (4) application of collateral estoppel
       does not work an injustice on the party against whom it is applied.”

World Wide Video, 125 Wn. App. at 305 (quoting Christensen v. Grant County Hosp. Dist. No. 1,

152 Wn.2d 299, 307, 96 P.3d 957 (2004)).

       Higham argues that the 2003 Wetland Approval, which reduced the wetland buffer also

applies to the 2011 driveway access. We disagree.

       The 2003 Wetland Approval reduced the wetland buffer to 37.5 feet for only the on-site

wetland and buffer. The 2003 Wetland Approval clearly states that “[t]hese conditions apply to

the on-site wetland and buffer.” AR at 84. The county did not address a reduction of the wetland

buffer for the off-site wetland.

       Further, the 2003 Wetland Approval reduced the wetland buffer to 37.5 feet as to only the

existing structures on the site. The 2003 Wetland Approval clearly stated that “[a] new wetland

review will be required for any change of use associated with any new proposed development

activities or structures on the site” and that all construction must be completed within three years

of the June 19, 2003, date of issue. AR at 84 (boldface omitted).

       Higham’s 2011 application for a wetland variance raised different issues, including the

development of a single-family residence and the reduction of an off-site wetland buffer to

accommodate the new pipe stem driveway. The 2003 Wetland Approval did not address any issues

arising after June 19, 2006, or address any issues related to any additional structures on the

property. Thus, we hold that Higham does not meet his burden of showing that the issues

addressed in the 2003 Wetland Approval were identical to the issues before the hearing examiner

in 2011.




                                                11
No. 47836-6-II


       We hold that Higham does not meet his burden of establishing that collateral estoppel

applies because he fails to show that the issues are identical. Thus, we affirm the superior court’s

decision that collateral estoppel does not apply.

                                 II. WETLAND BUFFER VARIANCE

       Higham argues that, even if collateral estoppel does not apply, the hearing examiner erred

in denying his application for a wetland buffer variance because he met all four variance criteria.

We disagree.

A. STANDARD OF REVIEW

       1. Review of Land Use Decisions

       LUPA governs judicial review of Washington land use decisions. Schlotfeldt v. Benton

County, 172 Wn. App. 888, 892, 292 P.3d 807 (2013). When reviewing a superior court’s decision

on a land use petition, we stand in the shoes of the superior court in its appellate capacity and we

review the administrative decision on the record of the administrative tribunal, not of the superior

court. Schlotfeldt, 172 Wn. App. at 893. “Local jurisdictions with expertise in land use decisions

are afforded an appropriate level of deference in interpretations of law under LUPA.” Habitat

Watch v. Skagit County, 155 Wn.2d 397, 412, 120 P.3d 56 (2005) (citing RCW 36.70C.130).

       Under RCW 36.70C.130(a), (b), (c), and (d), Higham has the burden to establish that:

       (a) The body or officer that made the land use decision engaged in unlawful
       procedure or failed to follow a prescribed process, unless the error was harmless;
       (b) 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;
       (c) The land use decision is not supported by evidence that is substantial when
       viewed in light of the whole record before the court; or
       (d) The land use decision is a clearly erroneous application of the law to the facts;


                                                    12
No. 47836-6-II


        2. Wetland Variance Criteria

        “Wetlands” are areas “inundated or saturated by surface water or groundwater at a

frequency and duration sufficient to support . . . a prevalence of vegetation typically adapted for

life in saturated soil conditions.” RCW 36.70A.030(21). Buffers around wetlands protect mainly

the water quality and wildlife habitat functions of wetlands. Yakima County v. E. Wash. Growth

Mgmt. Hr’gs Bd., 168 Wn. App. 680, 694, 279 P.3d 434 (2012). The purpose of PCC 18E.30.0107

is to

        avoid impacts arising from land development and other activities affecting
        wetlands, and to maintain and enhance the biological and physical functions and
        values of wetlands with respect to water quality maintenance, stormwater and
        floodwater storage and conveyance, fish and wildlife habitat, primary productivity,
        recreation, education, and historic and cultural preservation.

        Under PCC 18E.20.060(D)(3)(a), the hearing examiner had the authority to grant a

variance if all four variance criteria are met:

        1. There are special circumstances applicable to the subject property or to the
        intended use such as shape, topography, location, or surroundings that do not apply
        generally to surrounding properties or that make it impossible to redesign the
        project to preclude the need for a variance;
        2. The applicant has avoided impacts and provided mitigation to the maximum
        practical extent;
        3. The buffer reduction proposed through the variance is limited to that necessary
        for the preservation and enjoyment of a substantial property right or use possessed
        by other similarly situated property, but which because of special circumstances is
        denied to the property in question; and
        4. Granting the variance will not be materially detrimental to the public welfare or
        injurious to the property or improvement.

Suppl. CP at 90.


7
  PCC 18E.30.010 can be found at: http://www.codepublishing.com/WA/PierceCounty/#!/
PierceCounty18E/PierceCounty18E30.html#18E.30.010


                                                  13
No. 47836-6-II


       Higham argues that the hearing examiner erred in denying his variance under RCW

36.70C.130(1). We disagree.

B. RELIEF UNDER LUPA

       1. Interpretation of the Law

       Higham argues that the hearing examiner misinterpreted the law when he denied Higham’s

application for a variance because the 2003 Wetland Approval and 2004 Boundary Line

Adjustment previously established a 37.5-foot wetland buffer on his property. We disagree.

       Under RCW 36.70C.130(1)(a) and (b), we review questions of law de novo. Cingular

Wireless, L.L.C. v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006).

       Although the county agreed in 2003 to reduce the wetland buffer to 37.5 feet for the pond

expansion, the 2003 Wetland Approval was done only to resolve the 2003 permit violation and it

expressly stated that “[t]he issuance of this wetland approval does not constitute approval of other

proposed projects by the landowner.” AR at 84. The 2003 Wetland Approval states that “[t]hese

conditions apply to the on-site wetland and buffer.” AR at 84. The 2003 Wetland Approval also

stated that “[a] new wetland review will be required for any change of use associated with any new

proposed development activities or structures on the site.” AR at 84 (boldface omitted). Finally,

the conditions clearly state, “All Construction Must Be Completed: within [three] years of [the

June 19, 2003] date of issue.” AR at 84.

       In addition, the on-site wetland considered by the county in 2003 included only the natural

and agricultural ponds on the northeast corner of the property. It did not include a reduction of the

wetland buffer for the off-site wetland, which is located immediately to the south of Higham’s




                                                 14
No. 47836-6-II


property and which was impacted by the pipe stem driveway which Higham constructed after the

2004 Boundary Line Adjustment.

       The 2004 Boundary Line Adjustment stated that it “is not a guarantee that future permits

will be granted for any structure or development within [the] lot.” AR at 88. Although the 2004

Boundary Line Adjustment survey map labels the revised property line as a “driveway,” Higham

did not apply for permits or a wetland variance for the off-site wetland prior to the construction of

the pipe stem driveway. AR at 89.

       Higham’s reliance on the 2003 Wetland Approval and the 2004 Boundary Line Adjustment

is misplaced. We hold that Higham fails to meet his burden of establishing that the hearing

examiner erroneously interpreted the law because the 2003 Wetland Approval and the 2004

Boundary Line Adjustment do not establish the wetland buffer for purposes of Higham’s 2011

wetland variance application and that the hearing examiner correctly interpreted PCC

18E.20.060(D)(3).

       2. Substantial Evidence

       Higham argues that the hearing examiner’s findings of fact are not supported by substantial

evidence when viewed in light of the whole record.8 Although Higham does not assign error to



8
  Higham assigns error to the hearing examiner’s findings of fact 5, 6, 7, 9, 10, 11, and 12, he fails
to provide any independent arguments on alleged errors in findings of fact 5, 9, 10, 11 or 12. RAP
10.3(a)(6) requires a party to provide “argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record.” “Passing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”
Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2013). Thus, we decline to
address the other assignments of error and only address the assignments of error for findings of
fact 6 and 7. Unchallenged findings of fact are verities on appeal. In re Marriage of Raskob, 183
Wn. App. 503, 510, 334 P.3d 30 (2014). Although Higham does not assign error to finding of fact
13, he provides sufficient argument and thus, we address this issue.


                                                 15
No. 47836-6-II


finding of fact 13, he provides argument sufficient to preserve his assignment of error on finding

of fact 13.

        Under RCW 36.70C.130(1)(c), we review the findings of fact to determine whether they

are supported by substantial evidence.       Cingular Wireless, 131 Wn. App. at 768; RCW

7.16.120(5). Substantial evidence is evidence that would persuade a fair-minded person of the

truth of the statement asserted. Cingular Wireless, 131 Wn. App. at 768. We consider all of the

evidence and reasonable inferences in the light most favorable to the party who prevailed in the

highest forum that exercised fact-finding authority. Cingular Wireless, 131 Wn. App. at 768. We

defer to the fact-finding authority regarding the credibility of witnesses and the weight of

reasonable but competing inferences. Freeburg v. City of Seattle, 71 Wn. App. 367, 371-72, 859,

P.2d 610 (1993).

        a. Access to the Site

        Higham argues that the hearing examiner’s finding of fact 6 is not supported by substantial

evidence. Finding of fact 6 states that Higham

        has a possessory interest in a [rectangular] shaped 3.56 acre site in a Mid County
        Community Plan area of Pierce County. Legal access to the site is provided via an
        easement from the southeast corner of the site southward to Chesney Road.
        Approximately 1.3 acres of the site is located outside of wetland and buffer areas.
        Currently there is a 924 square foot single-family mobile home on site. There are
        also two sheds west of the mobile home and an unpermitted second access in the
        southwest corner of the site.

AR at 32.

        The county’s staff report stated that no permits had been applied for or issued for the

driveway. Higham testified that he believed that the county’s approval of the 2004 Boundary Line

Adjustment also meant that the county had approved construction of the new driveway. But the



                                                 16
No. 47836-6-II


2004 Boundary Line Adjustment stated that it was not a guarantee that future permits will be

granted for any structure or development within the lot. Higham did not offer any evidence that

he applied for or that Pierce County approved a permit to develop the driveway along the southwest

corner of the site.

        Thus, we hold substantial evidence supports the hearing examiner’s finding of fact 6 that

Higham had legal access to the site via a 30-foot easement from the southeast corner of the site

and that he did not receive any permits to develop the driveway along the southwest corner of the

site.

        b. Driveway Construction

        Higham argues that the hearing examiner’s finding of fact 7 is not supported by substantial

evidence. Finding of fact 7 states that

        [s]ometime between 2003 and 2005 the applicant constructed a second 690-foot
        long driveway from Chesney Road, through a pipe [stem] connection and all the
        way north along the west property line to an area where he proposes to construct a
        new single family home. Approximately 560 lineal feet of the second driveway is
        located within buffers of [off-site] wetlands. In addition, within the same time
        frame, the applicant constructed a dock type structure over the onsite wetland and
        buffer area. No permits have been applied for or issued for either the driveway or
        the dock. In 2006 the applicant commenced grading the site without a permit, a
        stop worker order was issued on January 26, 2006. Thereafter the applicant under
        took additional clearing and grading, although majority of additional work occurred
        outside of the wetland and buffer areas.

AR at 32.

        As analyzed above, Higham relied only on his belief that the county’s approval of the 2004

Boundary Line Adjustment also meant that the county had approved construction of the new

driveway, despite the fact that the 2004 Boundary Line Adjustment stated that it was “not a

guarantee that future permits will be granted for any structure or development within [the] lot.”



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AR at 88. Higham did not offer any evidence that he applied for or was approved for a permit to

construct a driveway along the southwest corner of the site. The site development plan shows that

the new driveway is located within the buffers of the off-site wetlands.

       Thus, we hold that substantial evidence supports the hearing examiner’s finding of fact 7

that Higham did not receive permits to construct the new driveway along the southwest corner and

that the driveway is located within the buffers of the off-site wetlands.

       c. Wetland Variance Criteria

       Higham argues that the hearing examiner’s finding of fact 13, that Higham fails to meet all

four variance criteria, is not supported by substantial evidence. We disagree.

                i. Special Circumstances

       The special circumstances criteria addresses whether the property has any unique features.

Suppl. CP at 90 (18E.20.060(D)(3)(a)(1)). Finding of fact 13.1 states that

       [t]here are no special circumstances applicable to this 3.5 acre parcel such as shape,
       topography, location of surroundings that make it impossible to redesign this
       project to preclude the need for a variance. In fact during the hearing, it was clearly
       demonstrated that proposed construction could take place without the need for a
       variance.

AR at 33; Suppl. CP at 98.

       The site development plan shows that there is a significant amount of undeveloped land

not impacted by the wetland buffer around both the on-site and off-site wetland areas. The old

driveway in the southeast portion of the property had been used as access for years. The county’s

staff report states that the site includes approximately 1.3 acres of land outside of the wetland and

buffer areas.




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No. 47836-6-II


       Higham does not provide any evidence to dispute that approximately 1.3 acres of land is

available for the construction of a single-family residence outside of the wetland and buffer areas,

or that any special topography or location of surroundings impede his ability to select a different

location for the construction of a single-family residence.

       Thus, we hold substantial evidence supports part one of the hearing examiner’s findings of

fact 13 that special circumstances do not exist on the site.

               ii. Avoided Impacts and Provided Mitigation

       The hearing examiner next evaluated whether Higham had avoided any impacts to the

wetlands and buffers and mitigated those impacts to the maximum extent practical and found that

he did not meet this criteria under PCC 18E.20.060(D)(3)(a)(2). Finding of fact 13.2 states that

       [t]he applicant has not avoided impacts and provided mitigation to the maximum
       extent possible. In fact, he has proposed no mitigation and as previously stated the
       site contains sufficient area to build outside of the wetland and wetland buffer areas.

AR at 33; Suppl. CP at 98.

       The county biologist testified before the hearing examiner that “additional development is

in fact possible without the buffer reduction” and that “no mitigation whatsoever has been

proposed.” VRP at 6-7.

       Higham relies on the 2003 Wetland Approval to support his argument that the 37.5-foot

buffer requires no mitigation for the construction of a single-family residence. Higham states that

both the old and the new access driveways intrude into the wetland buffer areas. He claims that

the proposed 2011 wetland variance application offers the option with the least impact. The

hearing examiner found that Higham offered no supporting evidence that his 2011 wetland

variance application avoided impact and also found that Higham offered no evidence of any



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mitigation. The hearing examiner also found that the site plan shows that the 1.3 acres of land

upon which he may construct a single-family residence are outside the wetland and buffer areas.

       Higham also argues that the county’s health department’s separate approval of the

irrigation well also constituted an approval to locate a single-family residence in the northern

portion of his property within the buffer area. However, Higham did not apply for, or receive, any

permits by Pierce County to approve the construction of a single-family residence in that location,

and he provides no other support for this argument.

       As analyzed above, the hearing examiner correctly found that the 2003 Wetland Approval

did not apply to the 2011 application for a wetland buffer variance, and we hold that substantial

evidence supports part two of the hearing examiner’s findings of fact 13, that Higham has not

avoided impacts or provided mitigation.

               iii. Preservation and Enjoyment of Substantial Property Right

       The hearing examiner considered whether a wetland buffer reduction was required for

Higham to preserve and enjoy his property rights under PCC 18E.20.060(D)(3)(a)(3). Finding of

fact 13.3 stated that “[a] buffer reduction is not necessary for the applicant to construct a single-

family residence on this site.” AR at 33.

       Higham argued that there are no other alternatives to his site plan and the project could not

be redesigned in a way that does not impact the buffer areas because the only other place on the

site suitable for construction of a single-family residence is also the only place where the septic

system would fit. Higham’s biologist testified that “[a]pproximately 63 percent of this site is

covered by wetlands and buffers.” VRP at 24. The county biologist testified that alternatives to




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No. 47836-6-II


the proposed site plan did exist which required no buffer variance. We hold that substantial

evidence supports part three of the hearing examiner’s finding of fact 13.

               iv. Not Materially Detrimental

       The hearing examiner considered whether granting a variance would be detrimental to the

public welfare or injurious to property under PCC 18E.20.060(D)(3)(a)(4). Higham argued that

the county conceded that a wetland buffer reduction posed no direct hazard to the site or

surrounding properties.

       The hearing examiner stated in finding of fact 13.4 that granting a variance where the

applicant failed to meet the strict application of the law would undermine the regulatory purposes

and principles of zoning ordinances and land use comprehensive plans. We agree and we hold

that substantial evidence supports part four of the hearing examiner’s finding of fact 13.

       3. Clearly Erroneous Application of the Law to the Facts

       Higham argues that the hearing examiner erroneously applied the law to the facts when he

discounted Higham’s reliance on the 2003 Wetland Approval and the 2004 Boundary Line

Adjustment. We disagree.

       Under RCW 36.70C.130(1)(d), we review whether the decision by the hearings examiner

was clearly erroneous by applying the law to the facts. Cingular Wireless, 131 Wn. App. at 768.

Under the clearly erroneous standard, we determine whether we have a definite and firm conviction

that a mistake has been committed. Cingular Wireless, 131 Wn. App. at 768.

       As analyzed above, Pierce County was not bound by the 2003 Wetland Approval or the

2004 Boundary Line Adjustment. Thus, we hold that the hearing examiner did not erroneously

apply the law to the facts. Therefore, we affirm the hearing examiner’s decision to deny Higham’s



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No. 47836-6-II


application for a wetland buffer variance because Higham failed to meet all four of the variance

criteria.

        4. Unlawful Procedure

        Higham argues that the hearing examiner engaged in unlawful procedure when he relied

on inadmissible evidence contained in the county’s staff report. Higham does not provide more

than passing treatment and conclusory arguments to support this argument.

        RAP 10.3(a)(6) requires a party to provide argument in support of the issues presented for

review, together with citations to legal authority and references to relevant parts of the record.

“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration.” Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2013). We

do not consider conclusory arguments that are unsupported by citation to legal authority.

Brownfield, 178 Wn. App. at 876.

        The hearing examiner did not misinterpret the law; substantial evidence supports the

findings of fact; the hearing examiner did not erroneously apply the law to the facts; and, the

hearing examiner did not engage in unlawful procedure. Because Higham failed to meet all four

variance criteria, the hearing examiner correctly denied his request for a wetland buffer variance,

and we affirm.

                                III. ATTORNEY FEES AND COSTS

        Pierce County requests an award of reasonable attorney fees and costs under

RCW 4.84.370 and in accordance with RAP 18.1(a).

        A prevailing party may recover attorney fees only if provided by statute, agreement, or

equitable principles. Tacoma Northpark, L.L.C. v. NW, L.L.C., 123 Wn. App. 73, 84, 96 P.3d 454



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No. 47836-6-II


(2004); RAP 18.1(a). RCW 4.84.370 provides that reasonable attorney fees and costs shall be

awarded to the prevailing party or substantially prevailing party on appeal before the court of

appeals to issue, condition, or deny a development permit involving a variance or similar land use

approval or decision. Because RCW 4.84.370 authorizes fees and Pierce County is the prevailing

party on appeal, we award Pierce County its reasonable attorney fees and costs on appeal under

RCW 4.84.370 and under RAP 18.1(a).

                                        CONCLUSION

        We affirm the hearing examiner’s decision to deny the wetland buffer variance. We also

affirm the superior court’s decision that the doctrine of collateral estoppel does not apply and

award Pierce County its reasonable attorney fees and costs on appeal.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 MAXA, A.C.J.




 MELNICK, J.




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