Lejeune v. Clallam County

• Decision Date: 10 February 1992
• Docket Number: No. 13125-1-II,13125-1-II
• Citation: 64 Wn.App. 257,823 P.2d 1144
• Court: Washington Court of Appeals
• Parties: Florence LEJEUNE and Vern Wright, Appellants, v. CLALLAM COUNTY, the Clallam County Board of Commissioners, and Herbert Sahar and Jane Doe Sahar, husband and wife, Respondents.

Page 257

64 Wn.App. 257

823 P.2d 1144

Florence LEJEUNE and Vern Wright, Appellants, v. CLALLAM COUNTY, the Clallam County Board of Commissioners, and Herbert Sahar and Jane Doe Sahar, husband and wife, Respondents.

No. 13125-1-II.

Court of Appeals of Washington,

Division 2.

Feb. 10, 1992.

Review Denied May 5, 1992.

Kenneth Day Williams, Johnson & Williams, Port Angeles, for appellants.

Christopher Melly, Deputy Pros. Atty., Port Angeles, for Clallam County.

Stephen E. Oliver, Platt Irwin Colley Oliver & Wood, Port Angeles, for Sahar.

MORGAN, Judge.

Neighbors Florence Lejeune and Vern Wright appeal approval of a preliminary plat application submitted by Herbert Sahar. We reverse.

The subject property is owned by Sahar and located in Clallam County. It is comprised of about 60 acres. Lejeune and Wright own adjacent property. ¹ For convenience, we will hereafter refer to Lejeune and Wright as the neighbors.

Until 1984, the property was zoned "agricultural/residential," a categorization that did not involve zoning restrictions. On December 18, 1984, the Board of Commissioners for Clallam County approved a new ordinance that zoned the property "RRI"--rural residential with a minimum lot size of one acre. The Board provided that the new ordinance would take effect 10 days later, on December 28, 1984.

On December 27, 1984, Sahar applied for approval of a preliminary plat of the property. ² 2] The plat proposed to divide the 60 acres into 100 lots.

The neighbors opposed the plat during hearings before the planning commission and, later, before the Board of Commissioners. At a hearing held on July 16, 1985, the Board applied the zoning laws last in effect on December 27, 1984 ³ and disapproved the plat. The vote was 2 to 1, with Commissioners Jones and Duncan voting to disapprove and Commissioner Gaydeski voting to approve.

On August 14, 1985, Sahar appealed by petitioning the Clallam County Superior Court for a writ of review. See RCW 58.17.180. He joined the county as a party, but not the neighbors. The requested writ, hereinafter called the 1985 writ, was issued but never heard on the merits. It languished for nearly three years, during which Commissioner Jones was replaced on the Board by Commissioner Cameron.

On April 19, 1988, Sahar and the Board stipulated ⁴ that the superior court should remand the matter back to the Board "for further consideration of the original preliminary plat ... or any revised version thereof which the applicant may present ... or the Commissioners may suggest...." The neighbors did not participate in the stipulation.

On April 20, 1988, the superior court entered an order based on the stipulation. The order was agreed to by the county and Sahar. The neighbors were not notified of its presentation to the court, and they did not agree to it. The order did not find that the Board had committed prejudicial error when it made its 1985 decision.

After the matter had been returned to the Board pursuant to the agreed order, Sahar asked the Board to reconsider his December 27, 1984 plat application, as amended in minor respects not pertinent here. A hearing was scheduled for July 12, 1988. The neighbors were given notice, they appeared, and they objected to reconsideration. The Board's minutes state:

John Pickensheets ... [p]resented the Board with petition signed by himself and 31 others almost all directly surrounding the proposed development. This is in objection to reconsideration by the Board.... Mrs. LeJune [sic ] asked him to speak for her....

The neighbors' objection was overruled. Although the superior court's agreed order of remand had its genesis in the stipulation between Sahar and the County, the presiding commissioner said:

I noticed one of the petitions I have got here is an objection to the reconsideration. This is something the Commissioners didn't initiate. We couldn't initiate it. It was done by mandate of the Superior Court Judge. This [apparently the agreed order of April 20, 1988] says we remand this to the Board of Commissioners for reconsideration. However, there is no statement from the Judge on what particular areas that should be reconsidered on the thing; just the basic, flat statement to review the--reconsider the whole thing.

On July 19, 1988, the Board, again applying the zoning laws last in effect on December 27, 1984, approved the plat. ⁵ Commissioner Duncan again voted to disapprove and Commissioner Gaydeski again voted to approve. The new commissioner, Commissioner Cameron, voted to approve.

On August 15, 1988, the neighbors appealed by petitioning the Clallam County Superior Court for another writ of review. The requested writ, hereinafter called the 1988 writ, was issued and heard on the merits. On August 18, 1989, the superior court upheld the Board's 1988 decision, and on the same date the neighbors filed their first notice of appeal.

On September 21, 1988, after the 1988 writ had been issued but before it was heard in the superior court, Sahar moved to dismiss the 1985 writ proceeding with prejudice. By this time the neighbors were aware of the 1985 proceeding, and they moved to intervene. On October 14, 1988, the superior court denied the motion to intervene and granted the motion to dismiss. The neighbors then filed a second notice of appeal to this court. However, on December 15, 1988, they, Sahar and the Board stipulated that the second notice of appeal should be dismissed with prejudice. On December 29, 1988, this court issued its mandate to that effect.

The appeal now before us arises from the neighbors' first notice of appeal. Thus, we are reviewing the 1988 writ proceeding as opposed to the 1985 one. The 1985 writ proceeding was terminated by the stipulation and mandateentered by this court in December, 1988, and it is presently material only to the extent that it affects the 1988 writ proceeding.

Within the 1988 writ proceeding, we review the Board's 1988 decision, as opposed to the superior court's judgment affirming that decision. Grader v. Lynnwood, 45 Wash.App. 876, 880, 728 P.2d 1057 (1986). In other words, we review de novo. Anderson v. Island Cy., 81 Wash.2d 312, 316, 501 P.2d 594 (1972); Bay Indus., Inc. v. Jefferson Cy., 33 Wash.App. 239, 241, 653 P.2d 1355 (1982). On issues of fact, we determine whether the Board's findings were supported by substantial evidence, RCW 7.16.120(4), (5) (standard for superior court review), Bay Industry, Inc., 33 Wash.App. at 241, 653 P.2d 1355 (this court conducts same review), Andrew v. King County, 21 Wash.App. 566, 575, 586 P.2d 509 (1978), review denied, 91 Wash.2d 1023 (1979), the cognizable evidence being that contained in the record made before the Board. Grader v. Lynnwood, 45 Wash.App. at 879, 728 P.2d 1057; see Clark v. Horse Racing Comm'n, 106 Wash.2d 84, 88, 720 P.2d 831 (1986) (APA case). On issues of law, we determine whether the Board acted contrary to law. RCW 7.16.120(3) (standard for superior court review); Bay Industry, Inc., 33 Wash.App. at 241, 653 P.2d 1355 (this court conducts same review); see Clark v. Horse Racing Comm'n, 106 Wash.2d 84, 88, 720 P.2d 831 (1986) (APA case).

The Board was reopening and reconsidering its 1985 decision when it made its 1988 one. This was acknowledged orally by the presiding commissioner and also in the Board's minutes. ⁶ Moreover, logic compels the same result. In both 1985 and 1988, the Board applied zoning laws last in effect on December 27, 1984. Sahar only submitted one plat application on or before that date. Necessarily, then, both of the Board's decisions related to that application, and the Board had to reopen and reconsider its first decision before it could render a second, contrary one.

Citing State ex rel. Worsham v. Brown, 126 Wash. 175, 218 P. 9 (1923), the neighbors argue that the Board lacked power to reopen and reconsider its 1985 decision in 1988. However, the appellant in Worsham was objecting to reconsideration of a previous final quasi-judicial decision, or in legal terms, to reconsideration of a previous res judicata decision. ⁷ Thus, we cannot determine Worsham's effect on this case without first determining whether the Board's 1985 decision was res judicata at the time of the 1988 Board hearing.

The following discussion, then addresses two questions. (1) At the 1988 Board hearing, was the Board's 1985 decision res judicata as to the neighbors? (2) At the 1988 Board hearing, did the Board have power to reconsider and reverse a res judicata decision made in 1985?

I.

Res judicata, modernly called claim preclusion, P. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805 (1985), applies to quasi-judicial decisions by administrative tribunals as well as to judicial decisions by courts. State v. Dupard, 93 Wash.2d 268, 274, 609 P.2d 961 (1980); Miller v. St. Regis Paper Co., 60 Wash.2d 484, 485, 374 P.2d 675 (1962); see McCarthy v. Department of Social and Health Servs., 110 Wash.2d 812, 823, 759 P.2d 351 (1988) (collateral estoppel); Malland v. Department of Retirement Sys., 103 Wash.2d 484, 490, 694 P.2d 16 (1985) (same). The Board's 1985 decision was quasi-judicial because it denied a proposed plat, and an administrative decision denying a proposed plat is quasi-judicial. Miller v. Port Angeles, 38 Wash.App. 904, 908, 691 P.2d 229 (1984), review denied, 103 Wash.2d 1024 (1985); Lechelt v. Seattle, 32 Wash.App. 831, 835, 650 P.2d 240 (1982), review denied, 99 Wash.2d 1005 (1983); see RCW 58.17.100 (findings of fact required); RCW 58.17.180 (review is by writ of review). Therefore, the Board's 1985 decision was subject to res judicata at such time as it became final. Columbia Rentals, Inc. v. State, 89 Wash.2d 819, 821, 576 P.2d 62 (1978) (final judgment is res judicata); Pinkney v. Ayers, 77 Wash.2d 795, 796, 466 P.2d 853 (1970) (interlocutory order is not res judicata).

No later than August, 1985, the Board's 1985 decision became final as to all proceedings...