Davidson v. Kitsap County
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 38055-9-I
Title of Case: Millard Davidson, Respondent
v.
Kitsap County, Appellant
File Date: 06/09/97
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 95-2-21328-6
Judgment or order under review
Date filed: 12/27/95
Judge signing: Hon. Charles V. Johnson
JUDGES
------
Authored by Ronald E. Cox
Concurring: Faye C. Kennedy
Pro Tem Judge
COUNSEL OF RECORD
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Counsel for Appellant(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
Counsel for Respondent(s)
Gerald A. Kearney
Attorney At Law
PO Box 1314
Kingston, WA 98346
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MILLARD DAVIDSON, )
) NO. 38055-9-I
Respondent, )
) DIVISION ONE
v. )
)
KITSAP COUNTY, a political )
subdivision of Washington State, ) PUBLISHED OPINION
)
Appellant. ) FILED
COX, J. -- Kitsap County appeals an order reversing the denial of an
application to provide access to a proposed subdivision from a county road
known as Carriage Drive. The County contends that the doctrine of res
judicata barred the application and that substantial evidence supports the
decision. We agree and reverse the trial court decision.
Mick Davidson owns an undeveloped 46-acre parcel of land in north
Kitsap County. In April 1990, he applied to the Kitsap County Board of
Commissioners to plat the parcel under the name High Haven. Davidson's
application proposed 18 single-family lots. He initially contemplated
providing access to the development from State Route 104, which borders the
parcel on the south. Davidson subsequently revised his design to provide
access from Carriage Drive, a county road that approaches the proposed plat
from the northwest. Carriage Drive bisects Daparwood, a neighboring
subdivision, and is separated from Davidson's parcel by a 10-foot-by-60-
foot "street plug." The drive connects with Hansville Road, which
intersects SR 104 to the south.
At the time of Davidson's application, the residents of Daparwood
vigorously opposed the request to use Carriage Drive for access to High
Haven. They maintained that the increased traffic would destroy the rural
setting of the neighborhood, would be unsafe due to the steep grade of
portions of the road, and would require the removal of many old growth
trees. Several residents also stated that they had purchased lots in
Daparwood after receiving assurances that Carriage Drive would never
service adjoining communities. The Daparwood residents also presented
evidence that the 1971 Planning commission approved the preliminary plat
subject to a number of conditions. One of them was:
4. That a temporary cul de sac be installed at the east end of the
northerly {Carriage Drive} roadway; and that a 10 foot street plug be
dedicated to the County to assure that no access from the adjacent
properties will take place inasmuch as these roads are not to be
brought up to minimum standards on the east end of the northerly road
{Carriage Drive.}{1}
In support of his application, Davidson raised a public safety
concern. He testified that the stretch of SR 104 on the south side of High
Haven has a higher accident rate than any other section of highway in the
state. Thus, providing access to the plat from that point was a safety
problem. He further presented evidence that the Washington State
Department of Transportation (DOT) had adopted a general policy of
directing access to the county road system to improve public safety. Based
on this policy, DOT supported providing access to High Haven through
Carriage Drive.
In November 1990, the Board of Commissioners approved the proposed
plat, subject to the condition that access not be provided by way of
Carriage Drive. It also entered its findings of fact and conclusions of
law, the relevant portions of which are set forth below. The Board found:
l4. The proposed plat and PUD contemplates {sic} access through
Carriage Drive, a gravel road serving the plat of Daparwood.
This road is maintained by the residents of Daparwood and
incorporates a ten foot "street plug" where it adjoins the
northwest corner of the subject property.
15. The Plat of Daparwood, incorporating the street plug, was
recorded November 30, 1972. Removal of a street plug requires formal
action of {sic} by the Board of County Commissioners pursuant to
a public hearing.
16. The street plug was required to limit traffic through Daparwood
and gravel-surfaced Carriage Drive that is maintained by the
Daparwood owners. Residents and owners of lots in Daparwood have
expressed opposition to removal of that street plug.
The Board concluded:
10. . . . that it would be inappropriate to remove the street plug at
the west {sic} end of Carriage Drive, due to the intent of its
incorporation into the plat of Daparwood and the opposition
to the removal by residents/owners in that plat.
11. The Board concludes that approval of the subject plat/PUD with
access via Carriage Lane is not necessary for the preservation and
enjoyment of the substantial property right of the petitioner and
will be materially detrimental to the public welfare and to the
property of other persons located in the vicinity.
Davidson did not appeal this decision.
Four years later, Davidson submitted a revised plat application for
High Haven. The 1994 revised plat increased density from 18 to 25 lots.
But it again contemplated access from Carriage Drive. A letter from DOT
stated that it had denied a request to construct a permanent road approach
from High Haven to SR 104. Quoting RCW 47.50 and WAC 468-52, DOT noted
that Washington law requires that:
"private direct access to the state highway system be permitted only
when the property has no other reasonable access to the general
system". This parcel has reasonable access to NE Carriage Drive and
the Hansville Road as shown on the plat map. Therefore, the
Department is unable to grant direct access to SR 104 at this
location.
Both DOT and the Kitsap County Department of Public Works (DPW) testified
that they strongly recommended using Carriage Drive to provide access
because of the safety concerns surrounding private access to SR 104. DOT
admitted that it would be required to allow access if there was no other
option available.
As expected, the Daparwood residents again vigorously opposed
Davidson's application. In addition to repeating the arguments they had
made in 1990, they argued that Davidson's application had been denied in
1990. One resident who had purchased his Daparwood property in 1992 stated
that he had made the purchase only after research revealed that access to
adjoining parcels could not be obtained through Carriage Drive.
The hearing examiner who considered the application recommended
approval. But he concluded that the use of Carriage Drive to provide
access to the development would have to be determined by the Board of
Commissioners. His recommendation included the following condition:
1. In the event that the project ultimately makes use of Carriage
Drive for access, the project should be limited to 18 lots as
previously approved and in accordance with the zoning and density
established for the plat and compatible with the adjacent and impacted
Daparwood subdivision. If the Applicant otherwise is successful in
providing access to the south, the density request contained in the
Application {25 lots} is appropriate and should be granted.
Thereafter, Davidson filed an application to remove the street plug
blocking access to Carriage Drive. Shortly thereafter, he also filed an
objection to the hearing examiner's recommendation limiting density to 18
lots in the event access was granted by way of Carriage Drive.
The Board of Commissioners held a public hearing on Davidson's
application to remove the street plug. DOT again recommended that access
to High Haven be provided by way of Carriage Drive rather than SR 104. It
cited the safety concern of creating another conflict point on an already
accident-ridden section of highway. It also referred to the 1991
legislation that encourages new access through existing county roadways.
Counsel for the Daparwood residents argued that if a given parcel has
no access to a county road, the State must grant access to a property owner
whose property abuts a state highway. He further argued that Davidson had
no access to a county road because of the 1971 dedication of the street
plug at the end of Carriage Drive.
The Board approved Davidson's application, but denied access from
Carriage Drive. The Board did not enter written findings of fact and
conclusions of law for this decision.
Davidson sought a writ of certiorari in the King County Superior
Court.2 The court reversed the decision of the Board of Commissioners and
required Kitsap County to grant Davidson access to High Haven by way of
Carriage Drive. Kitsap County appeals.
I
Standard of Review
Appellate review of a board of commissioners' decision under a writ of
certiorari is governed by RCW 7.16.120.3 Under RCW 7.16.120, this court
reviews issues of law de novo to determine whether the decision below was
contrary to law.4 We review factual findings to determine whether they are
supported by competent and substantial evidence.5 This review is
deferential and requires the court to view
the evidence and reasonable inferences therefrom in the light
most favorable to the party who prevailed in the highest forum
that exercised fact-finding authority, a process that necessarily
entails acceptance of the factfinder's views regarding the
credibility of witnesses and the weight to be given reasonable
but competing inferences.{6}
II
Res Judicata
Kitsap County contends that the doctrine of res judicata bars
Davidson's 1994 application for access through Carriage Drive. The County
argues that he never appealed the denial of his 1990 application and he
fails to show a substantial change in circumstances relevant to his 1994
application. We agree.
Davidson contends that we should refuse to consider the issue of res
judicata because Kitsap County failed to raise it before the trial court.
We reject this argument. When we consider on appeal a writ of certiorari,
we review the decision of the body that makes the findings and conclusions
relevant to the decision. Here, that is the Board of Commissioners. Any
failure to raise the issue before the trial court thus does not preclude
appellate review.7
The doctrine of res judicata bars the resurrection of the same claim
in a subsequent action.8 The doctrine applies in a quasi-judicial
administrative context and stands for the general proposition that "a
controversy should be resolved once, not more than once.'"9 Res judicata
will bar a claim when a prior final resolution has a concurrence of
identity in four respects with a subsequent proceeding: "There must be
identity of (1) subject matter; (2) cause of action; (3) persons and
parties; and (4) the quality of the persons for or against whom the claim
is made."10
Here, the only one of the four criteria that is in dispute is the
identity of subject matter between Davidson's 1990 and 1994 applications.
Our Supreme Court has stated the "elementary proposition" that subject
matters are not identical if they differ substantially.11 Thus, a second
application is not barred by res judicata if "there is a substantial change
in circumstances or conditions relevant to the application or a substantial
change in the application itself."12
Davidson contends here that his 1994 application was not barred by res
judicata because there was a substantial change in both the circumstances
relevant to the application and in the application itself. We disagree.
There was no substantial change in the portion of the application
relevant to this dispute. Davidson correctly points out that his 1994
application reflected various changes from his 1990 application. These
included an increase in density from 18 to 25 lots, an increase in the
number of detention ponds, and an addition of a one-half mile of bioswales.
There was also an increase in open space area, a decrease in the minimum
lot size as well as the average lot size, and a transfer to Public Utility
District water. But only one of these changes -- the increase in density -
- is relevant to Davidson's application to obtain access to High Haven from
Carriage Drive. Moreover, the increase in density does not ameliorate the
problem that led to the denial of Davidson's 1990 application. Rather, it
exacerbates it. This case is thus distinguishable from Hilltop Terrace,
which held that an owner's second application was not barred by res
judicata when it contained a design that mitigated many of the adverse
impacts that induced the Board of Commissioners to deny the first
application.13 We conclude that there was not a substantial change in
Davidson's 1994 application.
We likewise conclude that there was no substantial change in the
circumstances relevant to the application. Davidson argues that the 1991
enactment of RCW 47.50.010 constituted a substantial change of
circumstances. That statute states in pertinent part:
(3) It is the policy of the legislature that:
. . . .
(b) Every owner of property which abuts a state highway has a
right to reasonable access to that highway, unless such access has
been acquired pursuant to chapter 47.52 RCW, but may not have the
right of a particular means of access. The right of access to the
state highway may be restricted if, pursuant to local regulation,
reasonable access can be provided to another public road which abuts
the property.{14}
First, the record indicates that the legislative policy set forth in
the statute had already been adopted by DOT prior to the enactment of the
statute. This policy was expressly argued to the Board of Commissioners at
the time of Davidson's first application in 1990. Although we recognize
that the Legislature, rather than DOT, expressed the 1991 policy through
the enactment of the statute, this fact does not constitute a substantial
change. The policy remained the same.
Second, even if RCW 47.50 reflected a new policy never before argued
to the Board, Davidson's parcel does not abut on Carriage Drive. Webster's
Third New Int'l Dictionary defines "abut" as "to touch at one end, border
on."15 Our review of the plat shows clearly that the street plug separates
Carriage Drive from the proposed plat of High Haven. Thus, the proposed
plat does not abut Carriage Drive. The statute is therefore inapplicable.
Our conclusion is consistent with the policies that the doctrine of
res judicata seeks to protect:
The most purely public purpose served by res judicata lies
in preserving the acceptability of judicial dispute resolution
against the corrosive disrespect that would follow if the same
matter were twice litigated to inconsistent results.
. . .
A second largely public purpose has been found in preserving
courts against the burdens of repetitious litigation. . . .
The judicial interest in avoiding the public burdens of
repetitious litigation is allied with the interest of former
litigants in avoiding the parallel private burdens. For the most
part, attention is focused on the need to protect a victorious
party against oppression by a wealthy . . . adversary. . . .
The deepest interests underlying the conclusive effect of
prior adjudication draw from the purpose to provide a means of
finally ending private disputes. The central role of adversary
litigation in our society is to provide binding answers. We want
to free people from the uncertain prospect of litigation, with
all its costs to emotional peace and the ordering of future
affairs. Repose is the most important product of res
judicata.{16}
We hold that Davidson's 1994 application was barred by the doctrine of
res judicata.
III
Violation of Rule of Law
Davidson also contends that the Board's decision violates a rule of
law to his prejudice.17 Specifically, he contends his right of access to
Carriage Drive as an "abutting" property owner was violated by the
decision.
In general, the right of access of an abutting property owner to a
public street is an enforceable property right.18 Property abuts on a
public street when there is no intervening land between it and the street.19
"When property abuts, the lot line and street line are in common."20
The face of the Daparwood plat defeats Davidson's argument. The plat
indicates that "Parcel B" (the street plug) is at the east end of Carriage
Drive. It is a 10-foot-wide strip of land dedicated to Kitsap County. It
is not a part of Carriage Drive. Because of the existence of Parcel "B,"
Davidson's lot line and the street line are not in common. Rather, they
are separated by 10 feet. Given the intervening strip of land between
Davidson's parcel and Carriage Drive, we conclude that Davidson's parcel
does not abut on Carriage Drive. He thus had no right of access that was
defeated by the Board's decision.
Citing the testimony of James Roda, an agent of the County's
Department of Public Works, Davidson argues that Kitsap County nonetheless
admitted that Carriage Drive extends through Daparwood to the west line of
his property. Mr. Roda testified before the Board of Commissioners that
the street plug is part of the county road system because "the entire right-
of-way length of Carriage Drive goes from the eastern right-of-way line of
the Hansville Road to {the} east line of the plat. The street plug is
{the} east 10 feet of the roadway, which is 10 feet in length."
Notwithstanding this testimony, it contradicts the face of the Daparwood
plat. The plat explicitly designates the street plug as a parcel separate
and distinct from Carriage Drive. The Board was free to reject the
testimony of Roda and accept the plat evidence.
Citing the administrative record, Davidson asserts that "{a}ll streets
are dedicated for public use on the face of the Daparwood plat including
the street plug." Contrary to Davidson's assertion, however, neither the
portion of the record he cites nor the Daparwood plat states that the
street plug was dedicated for public use.
Davidson also asserts, without citation to authority, that Kitsap
County could not deprive him of access to a county road based on a plat
approval in 1971 to which neither he nor his predecessors in interest were
parties. But a county "may exercise its police power to restrict the flow
of traffic in residential areas and included in this power is the power to
restrict the use of certain streets with permanent barricades."21 We reject
Davidson's contention to the contrary.
We also reject Davidson's contention that Kitsap County failed to
require a waiver of his right of access under RCW 58.17.165. Even if that
statute did apply here, an assertion on which we express no opinion, the
waiver language is permissive, not mandatory. There was no necessity to
obtain a waiver from Davidson.
Finally, citing RCW 36.75.140, Davidson asserts that the creation of
the street plug was in conflict with state law. However, because RCW
36.75.140 applies only to "abutting property," and Davidson's parcel does
not abut on Carriage Drive, the creation of the street plug did not
conflict with state law.
IV
Substantial Evidence
Davidson next contends that the Board's decision to deny access
through Carriage Drive is not supported by substantial evidence. He argues
that it was made in direct contravention of the recommendation of its own
public works department as well as the recommendation of DOT. But that was
not the only evidence before the Board of Commissioners. In addition to
the recommendations of public works and DOT, the Board considered the
intent of the county planners and the Daparwood grantors regarding the use
of Carriage Drive. It also considered the expectations of the Daparwood
residents regarding the preservation of the character of their
neighborhood.
According to the testimony of one witness, the county planners
intended Daparwood to be a stand alone development whose roads would not
access neighboring communities:
The word "plug" was used to show the intent that the road end would be
closed off forever and therefore would not be opened in the future for
anyone.
. . . .
5. Had there been an intent that the road might be opened in the
future, that would have been specifically noted in the Minutes of the
Planning Commission, the strip of land would not have been described
as a "plug" and a proviso allowing opening of the road would have been
noted on the plat.
Moreover, a letter from one of the Daparwood developers explained that
they were required by the county planners to deed a "plug" to the County
for the specific purpose of preventing future developments from using the
streets of Daparwood as a thoroughfare. Finally, the Daparwood residents
presented evidence that the increased traffic would destroy the rural
setting of their neighborhood, would be unsafe, and would require the
removal of many old growth trees.
Viewing this evidence and the record as a whole in the light most
favorable to Kitsap County, we conclude that substantial evidence supported
the Board's decision. Although the safety issue raised by DPW and DOT was
certainly of no small significance, it was but one factor among many
presented to the Board. There was a sufficient quantity of evidence in the
record to persuade a fair-minded, rational person that the county planners
and the Daparwood grantors intended that the Carriage Drive street plug
would permanently bar access from neighboring developments.
Although Davidson challenges the Board's failure in 1995 to enter a
specific finding that the street plug would permanently bar access, the
Board did enter such a finding in 1990. Davidson fails to present any
authority why a new finding in 1995 was necessary where the facts remained
unchanged. The entry of such a finding would be of no use to us in review
of the record.22 It is perfectly clear that no new facts regarding the
intent to keep the street plug arose between the 1990 and 1995 hearings.
We hold that the trial court erred in substituting its own judgment
for that of the Board of Commissioners.
We reverse the trial court's decision and reinstate the decision of
the Kitsap County Board of Commissioners.
WE CONCUR:
1 (Italics ours.)
2 RCW 36.01.050 ("All actions against any county may be commenced in
the superior court of such county, or of the adjoining county, and all
actions by any county shall be commenced in the superior court of the
county in which the defendant resides, or in the county adjoining the
county by which such action is commenced.") (italics ours).
3 Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782,
788, 903 P.2d 986 (1995); Freeburg v. City of Seattle, 71 Wn. App. 367,
370, 859 P.2d 610 (1993).
4 Sunderland Servs., 127 Wn.2d at 788; Freeburg, 71 Wn. App. at 371;
RCW 7.16.120(3).
5 Sunderland Servs., 127 Wn.2d at 788; Freeburg, 71 Wn. App. at 371;
RCW 7.16.120(4)-(5).
6 Freeburg, 71 Wn. App. at 371-72 (quoting State ex rel. Lige & Wm. B.
Dickson Co. v. County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217, review
denied, 120 Wn.2d 1008 (1992)).
7 Snohomish County v. Hinds, 61 Wn. App. 371, 375, 810 P.2d 84
(1991).
8 Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22,
31, 891 P.2d 29 (1995).
9 Hilltop Terrace, 126 Wn.2d at 30 (quoting 4 Kenneth C. Davis,
Administrative Law Treatise 21:9, at 78 (2d ed. 1983)).
10 Hilltop Terrace, 126 Wn.2d at 32 (quoting Rains v. State, 100 Wn.2d
660, 663, 674 P.2d 165 (1983)).
11 Hilltop Terrace, 126 Wn.2d at 32.
12 Hilltop Terrace, 126 Wn.2d at 33.
13 Hilltop Terrace, 126 Wn.2d at 28-29.
14 RCW 47.50.010(3)(b).
15 Webster's Third New Int'l Dictionary 8 (1971).
16 Hilltop Terrace, 126 Wn.2d at 30-31 (quoting 18 Charles A. Wright,
et al., Federal Practice and Procedure 4403, at 12-15 (1981)).
17 RCW 7.16.120(3) ("The questions involving the merits to be
determined by the court upon the hearing are: . . . (3) Whether, in making
the determination, any rule of law affecting the rights of the parties
thereto has been violated to the prejudice of the relator.").
18 Keiffer v. King County, 89 Wn.2d 369, 372, 572 P.2d 408 (1977).
19 London v. City of Seattle, 93 Wn.2d 657, 661, 611 P.2d 781 (1980);
Kemp v. City of Seattle, 149 Wash. 197, 201, 270 P. 431 (1928), cert.
denied, 279 U.S. 825 (1929). See also 10A Eugene McQuillin, Municipal
Corporations 30.55 (3d ed. rev. 1990).
20 Kemp, 149 Wash. at 201.
21 10A Eugene McQuillin, Municipal Corporations 30.63, at 382 (3d ed.
rev.1990).
22 See Gary Merlino Constr. Co. v. City of Seattle, 108 Wn.2d 597, 603-
04, 741 P.2d 34 (1987).