COURT

alViSie II
2014 OCT 28 RH 10: 03
STtT
INTH E COURT OF APPEALSOF TH E STATE OF WASH ING
BAY"
DIVISIONII
KITSAP COUNTY, a political subdivision of
the Stateof Washington,
Respondent,
v.
KITSAP RIFLE ANDREVOLVER CLUB, a
not - for - profit corporation registered in the State
of Washington, and JOH N DOES and JANE
DOESI -XX, inclusive,
Appellants.
INTH EMATTEROF TH ENUISANCE
ANDUNPERMITTEDCONDITIONS
LOCATEDAT
One72 -acreparcel identified by Kitsap County
Tax Parcel IDNo.362501 -4- 002 -1006 with
street address 4900 Seabeck H ighway NW,
Bremerton, Washington,
Defendant.
NGTOt4
Consol.Nos. 43076 -2 -I1
43243 -9 -II
PUBLISH EDOPINION
MAXA, J.
TheKitsap Rifleand Revolver Club appeals fromthetrial court' s decision
followingabench trial that the Club engaged in unlawful uses of its shooting rangeproperty.
Specifically, theClub challenges thetrial court' s determinations that the Club had engaged in an
impermissibleexpansion of its nonconforminguse; that theClub' s sitedevelopment activities
violated land usepermittingrequirements; and that excessivenoise, unsafe conditions, and
unpermitted development work at the
shooting
range constituted apublic nuisance. TheClub
Consol.Nos.43076 -2 -II / 43243 -9 -II
also argues that even ifits activities wereunlawful, thelanguageofthe deedof sale transferring
theproperty titlefromKitsap County to the Club prevents theCounty fromfilingsuit based on
theseactivities. Finally, the Club challenges thetrial court' s remedies: terminatingthe Club' s
nonconforming usestatus and enteringapermanent injunction restrictingtheClub' s useofthe
property as ashootingrangeuntil it obtains aconditional usepermit, restrictingtheuse of certain
firearms at the Club, and limitingtheClub' s hours of operation to abatethenuisance.'
Wehold that ( 1) theClub' s commercial use oftheproperty and dramatically increased
noiselevels since 1993, but not theclub' s changein its operatinghours, constituted an
impermissibleexpansion of its
nonconforming
use; (
2) theClub' s development work unlawfully
violated various
County
land use
permitting
requirements; ( 3) theexcessivenoise, unsafe
conditions, and unpermitted development work constituted apublic nuisance; ( 4) thelanguagein
theproperty' s deed of sale fromthe County to the Club did not precludetheCounty from
challengingthe Club' s expansion of use, permit violations, and nuisanceactivities; and ( 5) the
trial court did not abuseits discretion in enteringan injunction restrictingtheuseof certain
firearms at theshootingrangeand limitingtheClub' s operatinghours to abatethepublic
nuisance. Weaffirmthetrial court on theseissues except for thetrial court' s rulingthat the
Club' s change in operating hours constituted an impermissible expansion of its nonconforming
use. Wereverseon that issue.
1 TheCounty initially filed across appeal. Welater granted the County' s motion to dismiss its
cross appeal.
2
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H owever, wereversethetrial court' s rulingthat terminatingtheClub' s nonconforming
use status as ashooting rangeis aproper remedy for the Club' s conduct. Instead, wehold that
theappropriateremedy involves specifically addressingtheimpermissibleexpansion of the
Club' s nonconforminguse and unpermitted development activities whileallowingthe Club to
operateas ashootingrange. Accordingly, wevacatetheinjunction precludingthe Club' s use of
theproperty as a shootingrangeand remand for thetrial court to fashion an appropriateremedy
for theClub' s unlawful expansion of its nonconforminguse and for thepermittingviolations.
FACTS
TheClub has operated ashootingrangein its present location in Bremerton sinceit was
founded for " sport and national defense" in 1926. Clerk' s Papers ( CP) at 4054. For decades, the
Club leased a72 -acreparcel of land fromtheWashington Department ofNational Resources
DNR) . Thetwo most recent leases stated that theClub was permitted to use eight acres ofthe
property as ashootingrange, withtheremainingacreage servingas abuffer and safety zone.
Confirmation ofNonconforming Use
In 1993, thechairman oftheKitsap County Board of Commissioners ( Board) notified the
Club and threeother shootingranges located in Kitsap County that the County considered each
to belawfully established, nonconforming uses. This noticewas prompted by theshooting
ranges' concern over aproposed newordinancelimitingthelocation of shootingranges.
Ordinance50 -B- 1993) .
TheCounty concedes that as of 1993 the Club' s use oftheproperty as a
shootingrangeconstituted alawful nonconforminguse.
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Consol.Nos.43076 -241 / 43243 -9 -II
Property Usage Since 1993
As of 1993, the Club operated arifleand pistol range, and someof its members
participated in
shooting
activities in thewooded
periphery
of therange.
Shootingactivities at the
rangeoccurred
only occasionally usually on weekends and duringthefall " sight -in" season for
hunting and only duringdaylight hours. CP at 4059. Rapid -fireshooting, useof automatic
weapons, and theuseof cannons occurred infrequently in the early 1990s.
Subsequently, the Club' s property use changed. TheClub allowed shootingbetween
7: 00 AMand 10: 00 PM, seven days aweek. Theproperty frequently was used for regularly
scheduled shootingpractices and practical shooting competitions whereparticipants used
multipleshooting bays for rapid -fireshooting in multipledirections. Loud rapid -fireshooting
often began as early as 7: 00 AMand could last as lateas 10: 00 PM. Fully automatic weapons
wereregularly used at theClub, and theClub also allowed useof explodingtargets and cannons.
Commercial use oftheClub also increased, includingprivatefor - profit companies usingthe
Club for avariety of firearms courses and small arms trainingexercises for military personnel.
TheU.S. Navy also hosted firearms exercises at the Club oncein November 2009.
Theexpanded hours, commercial use, use of explosivedevices and higher caliber
weaponry, and practical shooting competitions increased thenoiselevel of the Club' s activities
beginningin approximately 2005 or 2006. Shootingsounds changed from" occasional and
background in nature, to clearly audiblein thedown rangeneighborhoods, and frequently loud,
disruptive, pervasive, and
long
in duration." CP at 4073. Thenoisefromthe Club disrupted
neighboringresidents' indoor and outdoor activities.
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Theshootingrange' s increased use also generated safety concerns. TheClub operated a
bluesky" rangewithno overhead baffles to stop theescapeof accidentally or negligently
discharged bullets. CP at 4070. Therewereallegations that bullets had impacted nearby
residential developments.
RangeDevelopment Since 1996
Fromapproximately 1996 to 2010, theClub engaged in extensiveshootingrange
development within theeight acres ofhistorical use,
including: ( 1) extensiveclearing, grading,
and
excavating
wooded or semi - wooded areas to create"
shooting
bays,"
whichwereflanked by
earthen berms and backstops; ( 2) largescaleearthwork activities and tree/vegetation removal in
a2.85 acreareato createwhat was known as the300 meter riflerange; 2 ( 3) replacingthewater
coursethat ran across theriflerangewithtwo 475 -foot culverts, whichrequired extensivework
someofwhichwas within an areadesignated as awetland buffer; (
4) extendingearthen berms
alongtheriflerangeand over thenewly buried culverts whichrequired excavating and refilling
soil in excess of 150 cubic yards; and ( 5) cuttingsteep slopes higher than fivefeet at several
locations on theproperty.
TheClub did not obtain conditional usepermits, sitedevelopment activity permits, or any
of theother permits required under theKitsap County Codefor its development activities.
Club 's PurchaseofProperty
In early 2009, the County and DNRnegotiated aland swap that included the 72 acres the
Club leased. Concerned about its continued existence, theClub met with County officials to
2 TheClub abandoned its plans to develop theproposed 300 meter riflerangebecause County
staff advised the Club that aconditional usepermit would berequired for theproject.
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Consol.Nos.43076 -2 -II / 43243 -9 -I1
discuss thetransaction' s potential implications on its lease. The Club was eager to own the
property to ensure its shooting range' s continued existence, and theCounty was not interested in
owningtheproperty because of concern about potential heavy metal contamination fromits long
termshootingrangeuse. In May 2009, theBoard approved the sale ofthe 72 -acre parcel to the
Club.
In June, DNRconveyed to theCounty several largeparcels of land, includingthe72
acres leased by theClub. TheCounty then immediately conveyed the 72 -acreparcel to theClub
through an agreed bargain and saledeed withrestrictivecovenants.
Thebargain and sale deed states that the Club " shall confineits activeshootingrange
facilities on theproperty consistent withits historical use of approximately eight ( 8) acres of
active
shooting
ranges." CP at 4088. Thedeed also states that theClub may " upgrade or
improvetheproperty and/ or facilities within thehistorical approximately eight ( 8) acres in a
manner consistent with`modernizing' thefacilities consistent withmanagement practices for a
modern
shooting
range."
CP at 4088. Thedeed does not identify or address any property use
disputes between theClub and County.
Lawsuit and Trial
In 2011, theCounty filed acomplaint for an injunction, declaratory judgment, and
nuisance abatement against the Club. TheCounty alleged that theClub had impermissibly
expanded its nonconforminguse as ashootingrangeand had engaged in unlawful development
activities becausetheClub lacked therequired permits. TheCounty also alleged that theClub' s
activities constituted anoiseand safety public nuisance. TheCounty requested termination of
theClub' s
nonconforming
usestatus and abatement ofthenuisance.
Consol.Nos.43076 -2 -II / 43243 -9 -11
After alengthy benchtrial, thetrial court entered extensivefindings of fact and
conclusions of law. Thetrial court concluded that theClub' s shootingrangeoperation was no
longer alegal nonconformingusebecause( 1) theClub' s activities constituted an expansion
rather than an intensification ofthe
existingnonconforming
use; ( 2) the Club' s useof the
property was illegal because it failed to obtain proper permits for the development work; and ( 3)
the Club' s activities constituted anuisanceper se, astatutory public nuisance, and acommon law
nuisancedueto thenoise, safety, and unpermitted land useissues. Thetrial court issued a
permanent injunction prohibitinguseof theClub' s property as a shootingrangeuntil issuanceof
aconditional usepermit, whichthe County could condition upon application for all after - the-fact
permits required under Kitsap County Code( KCC) Title 12 and 19.Thetrial court also issued a
permanent injunction prohibitingtheuseof fully automatic firearms, rifles of greater than
nominal .30 caliber, explodingtargets and cannons, and theproperty' s useas an outdoor
shootingrangebefore9: 00 AMor after 7: 00 PM.
TheClub appeals. Wegranted astay ofthetrial court' s injunction against all shooting
rangeactivities on the Club property until such timeas it receives aconditional usepermit.
H owever, weimposed anumber of conditions on theClub' s shootingrangeoperations pending
our decision.
ANALYSIS
STANDARDOF REVIEW
Wereviewatrial court' s decision followingabenchtrial by askingwhether substantial
evidencesupports thetrial court' s findings of fact and whether thosefindings support thetrial
court' s conclusions of law. Casterlinev. Roberts, 168 Wn.App.376, 381, 284 P.3d 743 ( 2012) .
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Consol.Nos.43076 -2 -II / 43243 -9 -1I
Substantial evidenceis the" quantumof evidence sufficient to persuadearational fair - minded
person thepremiseis true."
Sunnyside Valley Irrig.Dist.v. Dickie, 149 Wn.2d 873, 879, 73 P.3d
369 ( 2003) .
H ere, theClub did not assign error to any of thetrial court' s findings of fact, and
only
challenged four findings
regarding
thedeed in its brie
3
Accordingly, wetreat the
unchallenged findings of fact as verities on appeal. In reEstate ofJones, 152 Wn.2d 1, 8, 100
P.3d 805 ( 2004) .
Theprocess of determiningtheapplicablelawand applyingit to thefacts is aquestion of
lawthat wereviewdenovo. Erwin v.Cotter H ealth Ctrs., Inc., 161 Wn.2d 676, 687, 167 P.3d
1112 ( 2007) . Wealso reviewother questions of lawdenovo. Recreational Equip., Inc.v. World
Wrapps Nw., Inc.,
165 Wn.App.553, 559, 266 P.3d 924 ( 2011) .
Weapply customary principles of appellatereviewto an appeal of adeclaratory
judgment reviewingthetrial court' s findings of fact for substantial evidenceand thetrial court' s
conclusions of lawdenovo. Nw.Props.Brokers Network, Inc.v. Early Dawn Estates
H omeowners' Ass 'n, 173 Wn.App.778, 789, 295 P.3d 314 ( 2013) .
TH E CLUB' S UNLAWFUL ACTIVITIES
TheClub argues that thetrial court erred in rulingthat theClub' s useof theproperty
since 1993 was unlawful because( 1) the Club' s activities constituted an expansion rather than an
intensification ofthe
existingnonconforming
use, ( 2) theClub failed to obtain proper permits for
3 In thebody of its brieftheClub argued that theevidencedid not support findings of fact 23, 25,
26, and 57. Thesefindings primarily involvethetrial court' s interpretation of thedeed
transferringtitlefromtheCounty to the Club. AlthoughtheClub' s challengeto thesefindings
did not
comply
withRAP 10.3(
g) ,
in our discretion wewill consider the Club' s challengeto
thesefindings.
8
Consol.Nos.43076 -2 -I1 / 43243 -9 -I1
its extensivedevelopment work, and ( 3) the Club' s activities constituted apublic nuisance. We
disagree and hold that thetrial court' s unchallenged findings of fact support these legal
conclusions.
A. EXPANSIONOF NONCONFORMING USE
TheClub argues that thetrial court erred in rulingthat theClub engaged in an
impermissibleexpansion ofthe existingnonconforminguseby ( 1) increasing its operatinghours;
2)
allowing
commercial useofthe Club .(
includingmilitary training) ; and ( 3) increasingnoise
levels by allowingexplosivedevices, higher caliber weaponry greater than .30 caliber, and
practical shooting. Wehold that increasingtheoperatinghours represented an intensification
rather than an expansion ofuse, but agreethat theother two categories of changed use
constituted expansions ofthe Club' s nonconforming use.
1. Changed Use General Principles
Alegal nonconforminguseis ausethat " lawfully existed" beforeachange in regulation
and is allowed to continuealthoughit does not comply withthecurrent regulations. King
County Dep'
t
of
Dev.&
Envtl.Servs. v. KingCounty, 177 Wn.2d 636, 643, 305 P.3d 240 ( 2013) ;
Rhod -A -Zaleav.Snohomish
County,
136 Wn.2d 1, 6, 959 P.2d 1024 ( 1998) .
Nonconforming
uses are allowed to continuebecause it would beunfair, and perhaps aviolation of dueprocess,
to requirean immediatecessation of such ause. KingCounty DDES, 177 Wn.2d at 643; Rhod-
A- Zalea, 136 Wn.2d at 7.
As our SupremeCourt noted, as timepasses anonconformingproperty usemay growin
volumeor intensity. Keller v.City ofBellingham, 92 Wn.2d 726, 731, 600 P.2d 1276 ( 1979) .
Although a property owner generally has aright to continueaprotected nonconforming use,
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Consol.Nos.43076 -2 -II / 43243 -9 -II
thereis no right to"
significantly
change, alter, extend, or enlargethe
existing
use." Rhod -A-
Zalea, 136 Wn.2d at 7. On the other hand, an " intensification" ofthenonconforminguse
generally
is permissible. Keller, 92 Wn.2d at 731." Under Washington common law,
nonconforming
uses
may
beintensified, but not expanded."
City ofUniversity Placev.
McGuire, 144 Wn.2d 640, 649, 30 P.3d 453 ( 2001) . Our SupremeCourt stated thestandard for
distinguishingbetween intensification and expansion:
When an increasein volumeor intensity of use is ofsuchmagnitudeas to effect a
fundamental change in a nonconforming use, courts may find the change to be
proscribed
by
the ordinance. Intensification is permissible, however, where the
nature and character of the use is unchanged and substantially the same facilities
are used. The test is whether the intensified use is different in kind from the
nonconforminguse in existencewhen thezoning ordinancewas adopted.
Keller, 92 Wn.2d at 731 ( internal citations omitted) .
In Keller, our Supreme Court determined that achlorinemanufacturing company' s
addition of six cells to bringits buildingto design capacity ( whichincreased its chlorine
production by 20 -25 percent) constituted an intensification rather than an expansion, and thus
was permissibleunder thecompany' s chlorinemanufacturingnonconforminguse status. 92
Wn.2d at 727 -28, 731.
Thecourt' s decision was based on theBellinghamCity Code( BCC) ,
which stated that a
nonconforming
use" ` shall not beenlarged, relocated or rearranged,' " but
did not specifically prohibit intensification. Keller, 92 Wn.2d at 728 731 ( quotingBCC
20.06.027( b) ( 2) ) . TheSupremeCourt highlighted thetrial court' s unchallenged factual findings
that the addition ofthenewcells " wrought no change in thenatureor character of the
nonconforminguse" and had no significant effect on theneighborhood or surrounding
environment. Keller, 92 Wn.2d at 731 -32.
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2.
Kitsap County CodeProvisions
Our SupremeCourt in Rhod - A -Zaleanoted that theWashington statutes are silent
regardingregulation of nonconforming uses and that thelegislature" has deferred to local
governments to seek solutions to thenonconforminguseproblemaccordingto local
circumstances." 136 Wn.2d at 7. As aresult, " local governments arefreeto preserve, limit or
terminatenonconforminguses subject only to thebroad limits of applicableenablingacts and the
constitution." Rhod -A- Zalea, 136 Wn.2d at 7. Theanalysis in Keller is consistent withthese
principles. Accordingly, wefirst determinewhether theClub' s increased activity is permissible
under theCodeprovisions that regulatenonconforminguses, interpreted within dueprocess
limits.
Title 17 of the Coderelates to zoning. KCC 17.460.020 provides:
Where a lawful useof land exists that is not allowed under current regulations, but
was allowed when theusewas initially established, that use may be continued so
longas it remains otherwiselawful, and shall bedeemed anonconforminguse.
This ordinancereflects that generally theCode" is intended to permit thesenonconformities to
continueuntil
they
areremoved or discontinued." KCC 17.460.010.
TheCodecontains two provisions that address when anonconformingusechanges.
First, KCC 17.460.020( C) prohibits thegeographic expansion or relocation of nonconforming
uses:
If an existingnonconforminguseor portion thereof, not housed or enclosed within
astructure, occupies aportion of alot or parcel of land on theeffectivedatehereof,
the areaofsuch use may not be expanded, nor shall theuseor any part thereof, be
moved to any other portion of the property not historically used or occupied for
such use.
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Consol.Nos.43076 -2 -II / 43243 -9 -II
Emphasis added) .
This ordinanceprohibits expansion of only theareaof anonconforminguse
i.e., thefootprint oftheuse.
With onepossible exception,4 theClub did not violatethis provision. Thetrial court
concluded that theClub " enjoyed alegal protected nonconforming status for historic use ofthe
existing
eight acrerange." CP at 4075. TheClub developed portions of its " historic eight acres"
by creatingshootingbays, beginningpreliminary work for relocatingits shootingrange, and
constructing culverts to convey awater courseacross therange. CP at 4060. Thereis no
allegation that any ofthis work took placeoutsidethe existing areaof theClub' s nonconforming
use. Further, all of theactivities that thetrial court found constituted an expansion ofusetook
placewithin theeight acre area.
Second, former KCC 17.455.060 ( 1998) , whichwas repealed after thetrial court rendered
its opinion,' provided:
Auseor structurenot conformingto thezonein whichit is located shall not be
altered or enlarged in any manner, unless such alteration or enlargement would
bringtheuse or structureinto greater conformity withtheuses permitted within,
or requirements of thezonein whichit is located.
4 Theonepossibleviolation of KCC 17.460.020 involved theClub' s work on theproposed 300
meter range. It is unclear whether theproposed 300 meter rangewas outsidethehistoric eight
acres. Thetrial court madeno factual findingon this issue, althoughtheparties imply that this
project went beyond theexistingarea. In any event, when theCounty objected theClub
discontinued its work in this area. Becausetheproject was abandoned, at thetimeof trial the
Club no longer was in violation of KCC 17.460.020. Apparently, the Club currently is usingthis
areafor storagebut is willingto movetheitems ifacourt determines it is outsideits historical
usearea.
5 Neither party discusses theeffect of former KCC 17.455.060 beingrepealed. Becausewe
interpret this ordinanceconsistent withthe common law, weneed not address this issue.
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Emphasis added) . Thecourt in Keller determined that theterm" enlarged" in the ordinanceat
issue did not prohibit intensification. 92 Wn.2d at 731." Alter" is defined as " to causeto
becomedifferent in someparticular characteristic ...'
without changing into somethingelse."
WEBSTER' S TH IRDNEWINTERNATIONAL DICTIONARY at 63 ( 2002) .
Arguably, theprohibition .on
alteringanonconforminguse could be interpreted as prohibiting every intensification ofthat use.
But theCounty does not arguethat former KCC 17.455.060 prohibits intensification. Further, as
in Keller, theCodedoes not expressly prohibit intensification of anonconforminguse. And
interpretingformer KCC 17.455.060 strictly to prohibit any change in usewould conflict with
therulethat zoning ordinances in derogation ofthe common lawshould bestrictly construed.
Keller, 92 Wn.2d at 730.
Based on thesefactors, weinterpret former KCC 17.455.060 as adoptingthecommon
lawand prohibiting" expansion" but not " intensification" of anonconforminguse. As aresult,
wemust analyzewhether theClub' s use since 1993 constitutes an expansion or intensification of
useunder common lawprinciples.
3. Expansion vs.Intensification
As discussed above, Keller described theconcept of "expansion" as an increasein the
volume or intensity oftheuse of such magnitudethat effects a" fundamental change" in theuse,
and theconcept of "intensification" as wherethe" natureand character" oftheuse is unchanged
and
substantially
thesamefacilities areused. 92 Wn.2d at 731.
Accordingto Keller, thetest is
whether theintensified useis " different in kind" than thenonconforminguse. 92 Wn.2d at 731.
Althoughthe case lawis somewhat unclear, wehold that theexpansion/intensification
determination is aquestion of law. See City ofMercer Islandv.Kaltenbach, 60 Wn.2d 105, 107,
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Consol.Nos.43076 -2 -II / 43243 -9 -II
371 P.2d 1009 ( 1962) ( whether ordinances allowausemust bedetermined as amatter oflaw) ;
Meridian Minerals Co.v.
KingCounty,
61 Wn.
App.
195, 209 n.14, 810 P.2d 31 ( 1991) ( whether
a zoningcodeprohibits a land use is aquestion of law) .6
Thetrial court concluded that threeactivities " significantly changed, altered, extended
and enlarged the
existing
use" and thereforeconstituted an expansion of use: "( 1) expanded
hours; ( 2) commercial, for - profit use(
includingmilitary training) ; [
and](
3) increasingthenoise
levels
by allowing
explosivedevises [ sic],
highcaliber weaponry greater than 30 caliber and
practical
shooting."
CP at 4075 -76. Wehold that the Club' s increased hours did not constitute
an expansion of its nonconforming use. H owever, wehold that the other two activities did
constitutean impermissibleexpansion ofuse.
First, thetrial court found that theClub currently allowed shootingbetween 7: 00 AMand
10: 00 PM, seven days aweek. But thetrial court found that in 1993 shootingoccurred during
daylight hours only, sounds ofshootingcould beheard primarily on theweekends and early
mornings in September ( hunter sight -in season) ,
and hours of activeshootingwere considerably
fewer than today. Wehold that theincreased hours of shootingrangeactivities heredo not effect
a" fundamental change" in theuseand do not involveause" different in kind" than the
nonconforming
use. Keller, 92 Wn.2d at 731. Instead, thenatureand character oftheuse has
remained unchanged despitetheexpanded hours. By definition, this represents an intensification
6 But seeKeller, 92 Wn.2d at 732, in which our SupremeCourt discusses thetrial court' sfinding
offact that " intensification wrought no changein thenatureor character ofthenonconforming
use."
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Consol.Nos.43076 -2 -II / 43243 -9 -II
of userather than an expansion. Wehold that thetrial court' s findings do not support alegal
conclusion that theincreased hours of shooting constituted an expansion ofthe Club' s use.
Second, thetrial court madeunchallenged findings that from2002 through 2010 three
for - profit companies regularly provided avariety offirearms courses at theClub' s property,
many for activeduty Navy personnel. Thetrial court found that onecompany provided training
for approximately 20 peopleat atimeover threeconsecutiveweekdays as often as threeweeks
per monthfrom2004 through2010. Beforethis time, therewas no evidence of for - profit firearm
trainingat theproperty. Becausethetrainingcourses involved the operation of firearms, that use
on onelevel was not different than use oftheproperty as agun club' s shootingrange. H owever,
usingtheproperty to operate a commercial business primarily servingmilitary personnel
represented afundamental changein use and was completely different in kind than usingthe
property as a shootingrangefor Club members and the general public.
Wehold that thetrial court' s findings support thelegal conclusion that the commercial
and military use ofthe shootingrangeconstituted an expansion oftheClub' s nonconforming
use.
Third, thetrial court madeunchallenged findings that thenoisegenerated at the Club' s
property changed significantly between 1993 and thepresent. Thetrial court found:
Shootingsounds fromtheProperty havechanged fromoccasional and background
in nature, to clearly audiblein thedown rangeneighborhoods, and frequently loud,
disruptive, pervasive, and
long
in duration.
Rapid fire shooting sounds fromthe
Property have become common, and the rapid- firingoften goes on for hours at a
time.
CP at 4073. Thetrial court further found that "[
u]se offully automatic weapons, and constant
firingof semi - automatic weapons led several witnesses to describetheir everyday lives as being
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Consol.Nos. 43076 -2 -II / 43243 -9 -II
exposed to the` sounds of war.' " CP at 4073.
Similarly, theuseof cannons and exploding
targets caused loud booming sounds. By contrast, thetrial court found that rapid -fireshooting,
use of automatic weapons, and theuseof cannons and explosives at theproperty occurred
infrequently in theearly 1990s.
Thetypes of weapons and shootingpatterns used currently do not necessarily involvea
different character ofusethan in 1993, when similar weapons and shootingpatterns wereused
infrequently. H owever, wehold that thefrequent and drastically increased noiselevels found to
exist at theClub constituted afundamental change in theuse oftheproperty and that this change
represented ausedifferent in kind than theClub' s 1993 property use.
Wehold that thetrial court' s findings support a conclusion that theextensivecommercial
and military use and dramatically increased noiselevels constituted expansions of the Club' s
nonconforminguse, whichis unlawful under thecommon lawand former KCC 17.455.060.
B. VIOLATIONSOF LANDUSEPERMITTING REQUIREMENTS
Thetrial court concluded that beginningin 1996, theClub violated various Code
provisions by failingto obtain sitedevelopment activity permits for extensiveproperty
development work
includinggrading, excavating,
and
filling and failingto comply withthe
critical areas ordinance, KCC Title 19. The Club does not deny that it violated certain Code
provisions for unpermitted work, nor does it claimthat it ordinarily would not besubject to the
permitting
requirements. And it is settled that nonconforminguses are subject to subsequently
7 TheClub argues that theprovisions of thedeed transferringtheproperty fromtheCounty
relieved theClub fromcompliancewithdevelopment permittingrequirements within its
historical eight acres. This argument is discussed below.
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Consol.Nos.43076 -2 -II / 43243 -9 -II
enacted reasonablepolicepower regulations unless theregulation would immediately terminate
thenonconforming.use. Rhod -A- Zalea, 136 Wn.2d at 9, 12 ( holdingthat nonconforminguse of
land for peat
miningfacility
is subject to subsequent
grading
permit requirement) .KCC
17.530.030 states that any use in violation of Codeprovisions is unlawful. Accordingly, thereis
no disputethat the Club' s unpermitted development work on theproperty constituted unlawful
uses.
C. PUBLICNUISANCE
TheClub argues that thetrial court erred in rulingboththat its shootingrangeactivities
constituted anuisance and that it was a" public" nuisance. Wedisagree.
Thetrial court concluded that theClub' s activities on theproperty constituted a public
nuisancein threeways: "( 1)
ongoing
noisecaused
by shooting
activities, ( 2) use of explosives at
theProperty, and ( 3) theProperty' s ongoingoperation without adequatephysical facilities to
confinebullets to the
Property."
CP at 4075. Thetrial court also concluded that the Club' s
expansion of its nonconforminguse and unpermitted development activities constituted apublic
nuisance. Morespecifically, thetrial court concluded that theseactivities constituted apublic
nuisanceper se, a
statutory
public nuisancein violation of RCW7.48.010, .120, .130, .140( 1) ,
and .140( 2) and KCC 17.455.110, .530.030, and .110.515, and acommon lawnuisancebased on
noiseand safety issues. Wehold that thetrial court' s unchallenged factual findings support its
conclusion that the Club' s activities constituted apublic nuisance.
1. General Principles
Anuisanceis asubstantial and unreasonableinterferencewiththeuse and enjoyment of
another person' s property. Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 ( 2005) .
17
Consol.Nos.43076 -2 -II / 43243 -9 -II
Washington' s nuisancelawis codified in chapter 7.48 RCW. RCW7.48.010 defines an
actionablenuisance as " whatever is injurious to health... or offensiveto thesenses, ... so as to
essentially
interferewiththecomfortableenjoyment ofthelifeand
property."
RCW7.48.120
also defines nuisanceas an " act or omission [that] either annoys, injures or endangers the
comfort, repose, health or
safety
of others ...
or in any way renders other persons insecurein
life, or in theuse of property."
TheCodecontains several nuisanceprovisions. KCC 9.56.020( 10) defines nuisance
similar to RCW7.48.120. KCC 17.455.110 prohibits land uses that " producenoise, smoke, dirt,
dust, odor, vibration, heat, glare, toxic gas or radiation whichis materially deleterious to
surrounding
people, properties or uses." KCC 17.530.030 provides that "[ a]
ny
use... in
violation of this titleis unlawful, and apublic nuisance."
Finally, KCC 17.110.515 states that
any violation ofthis title[zoning] shall constituteanuisanceper se."
Ifparticular conduct interferes withthecomfort and enjoyment of others, nuisance
liability
exists
only
when theconduct is unreasonable.
Lakey
v.Puget Sound
Energy,
Inc., 176
Wn.2d 909, 923, 296 P.3d 860 ( 2013) ." Wedeterminethereasonableness of adefendant' s
conduct by weighingtheharmto theaggrieved party against the social utility of theactivity."
Lakey,
176 Wn.2d at 923; see also 17 WILLIAMB.STOEBUCK& JOH NW.WEAVER,
WASH INGTONPRACTICE: REAL ESTATE: PROPERTY LAW 10.3, at 656 -57 ( 2d,ed. 2004) ( whether
agiven activity is anuisanceinvolves balancingtherights of enjoyment and freeuseof land
between possessors of land based on theattendant circumstances) ." ` Afair test as to whether a
business lawful in itself, or aparticular useof property, constitutes a nuisance is the
reasonableness or unreasonableness of conductingthebusiness or makingtheuseof theproperty
18
Consol.Nos.43076 -2 -II / 43243 -9 -II
complained of in theparticular locality and in themanner and under thecircumstances of the
case.' " Shields v.SpokaneSch.Dist.No.81, 31 Wn.2d 247, 257, 196 P.2d 352, 358 ( 1948)
quoting
46 C.J. 655, NUISANCES, 20) .
Whether anuisanceexists generally is aquestion of
fact. Lakey, 176 Wn.2d at 924; Tiegs v. Watts, 135 Wn.2d 1, 15, 954 P.2d 877 ( 1998) .
Anuisanceper se is an activity that is not permissibleunder any circumstances, such as
an
activity
forbidden
by
statuteor ordinance. 17 STOEBUCK& WEAVER, 10.3, at 656; see also
Tiegs, 135 Wn.2d at 13. H owever, alawful
activity
also can be anuisance.
Grundy, 155 Wn.2d
at 7 n.5."[
A] lawful business is never anuisanceper se, but may become anuisanceby reason
of extraneous circumstances such as being located in an inappropriateplace, or conducted or
kept in an improper manner." H ardin v. Olympic Portland Cement Co., 89 Wash.320, 325, 154
P. 450, 451 ( 1916) .
2. ExcessiveNoise
TheClub argues that thetrial court erred in rulingthat noisegenerated fromtheshooting
range' s activities constituted anuisance. Wedisagree.
a. Unchallenged Findings ofFact
TheClub does not assign error to any of thetrial court' s findings of fact regardingnoise,
but it challenges thetrial court' s " conclusion" that theconditions constituted anuisance. But the
trial court' s determination that theconditions constituted anuisance actually is afactual finding.
Lakey,
176 Wn.2d at 924; Tiegs, 135 Wn.2d at 15. Therefore, our reviewis limited to
determiningwhether therecord contains substantial evidenceto support thetrial court' s finding
that thenoisegenerated fromtheClub' s activities was a substantial and unreasonable
19
Consol.Nos.43076 -2 -II / 43243 -9 -II
interferencewithneighbors' useand enjoyment of their property. Casterline, 168 Wn.App.at
381.
Thetrial court madeunchallenged findings that ( 1) loud rapid fireshootingoccurred 7: 00
AMto 10: 00 PM, seven days .aweek; (
2) theshootingsounds were" clearly audiblein the down
rangeneighborhoods, and
frequently
loud, disruptive, pervasive, and
long
in duration," CP at
4073; (
3) at times, theuse of fully automatic weapons or theconstant firingof semi - automatic
weapons maderesidents feel exposed to the" sounds ofwar," CP at 4073; ( 4) theClub allowed .
theuse of explodingtargets, includingTanneriteand cannons, which caused loud " booming"
sounds in residential neighborhoods within two miles oftheClub property and caused houses to
shake, CP at 4074; (
5) thenoisefromtherangeinterfered withthecomfort and reposeofnearby
residents, interfered withtheir useand enjoyment of their property, and had increased in thepast
fiveto six years; ( 6) theinterferencewas common, occurred at unacceptablehours, and was
disruptiveofboth indoor and outdoor activities; and ( 7) thedescription ofnoiseinterferencewas
representativeofthe experienceof asignificant number of homeowners within twomiles of the
Club property.
Based on thesefindings of fact, thetrial court found that theongoingnoisecaused by the
shooting
range
specifically theClub' s hours of operation, caliber ofweapons allowed to be
used, useof
exploding
targets and cannons, hours and
frequency
of "practical
shooting,"
and
automatic weapons use was substantial and unreasonable, and therefore constituted common
lawpublic nuisance and statutory public nuisanceconditions under RCW7.48.120, KCC
17.530.030, and KCC 17.110.515. CP at 4078. Theundisputed facts weresufficient to support
this finding.
20
Consol.Nos.43076 -2 -II / 43243 -9 -II
Thetrial court heard testimony, considered the evidence, and found that thenoisewas
significant, frequent, and disruptive, and that it interfered withthesurroundingproperty' s use
and enjoyment. Therecord contains substantial evidenceto support thesefindings.
Accordingly, wehold that thetrial court did not err in findingthat excessivenoisefromthe
Club' s activities constituted anuisance.
b. NoiseOrdinances
TheClub argues that despitethetrial court' s factual findings, noisefromits activities
cannot constitute anuisancebecausetheCounty failed to present evidencethat it violated state
and County noiseordinances and provided no objectivemeasurement of noise. Wedisagree.
AlthoughWAC 173 -60 -040 provides maximumnoiselevels, related regulations
generally
defer to local governments to regulatenoise. See WAC 173 -60 -060, - 110. Chapter
10.28 KCCprovides maximumpermissibleenvironmental noiselevels for thevarious land use
zones. KCC 10.28.030 -.040. But a violation may occur without noisemeasurements being
made. KCC 10.28.010( b) , .130. KCC 10.28.145 also prohibits a" public disturbance" noise.
TheClub cites no Washington authority,for theproposition that noisecannot constitute a
nuisanceunless it violates applicablenoiseregulations and Codeprovisions. Noneof the
nuisancestatutes or Codeprovisions requirethat a nuisancearisefromastatutory or regulatory
violation. Anuisanceexists iftherehas been asubstantial and unreasonableinterferencewith
theuseand enjoyment ofproperty. Grundy, 155 Wn.2d at 6. Thetrial court' s unchallenged
findings of fact support a determination that noisethe Club generates constitutes anuisance
regardless of whether thenoiselevel exceeds thespecified decibel level.
21
Consol.Nos.43076 -241 / 43243 -941
c. NoiseExemption for ShootingRanges
TheClub argues that noisefromthe shootingrangecannot constituteanuisanceas a
matter oflawbecausenoiseregulations exempt shootingranges. Becausethis argument presents
alegal issue, wereviewit denovo.
Recreational
Equip., 165 Wn.App.at 559. Wedisagree
with theClub.
Sounds created by firearmdischarges on authorized shootingranges areexempt from
KCC 10.28.040 ( maximumpermissibleenvironmental noiselevels) and KCC 10.28.145 ( public
disturbancenoises) between thehours of 7: 00 AMand 10: 00 PM. KCC 10.28.050. The
Washington Department ofEcology also exempts sounds created by firearms discharged on
authorized shootingranges fromits maximumnoiselevel regulations. RCW70.107.080; WAC
173- 60- 050( 1) ( b) .
TheCodebroadly defines " firearm" as " any weapon or deviceby whatever
nameknown whichwill or is designed to expel aprojectileby theaction of an explosion,"
includingrifles, pistols, shotguns, and machineguns. KCC 10.24.080. As aresult, thenoise
fromtheweapons beingfired at the Club' s rangefalls within thenoiseexemption provisions of
KCC 10.28.050, and thus is exempt fromthemaximumpermissibleenvironmental noiselevels
and public disturbancenoiserestrictions.8
But onceagain, theClub cites no authority for theproposition that an exemption from
noiseordinances affects thedetermination of whether noiseconstitutes anuisance. Becausea
nuisancecan befound even ifthereis no violation ofnoiseordinances, theexemption fromsuch
ordinances is immaterial.
8 H owever, thenoisefromtheuse of explodingtargets, includingTanneritetargets, is not noise
fromthedischargeof firearms and thereforeis not exempt fromthenoiseordinances.
22
Consol.Nos.43076 -2 -II / 43243 -9 -II
TheClub also argues that theexemption of shootingrangenoisefromthestateand local
noiseordinances should be considered an express authority tomakethat noise. This argument is
based on RCW7.48.160, whichprovides that nothingdoneor maintained under theexpress
authority of astatutecan bedeemed anuisance.
Our Supreme Court addressed asimilar issuein Grundy. In that case, aprivateperson
brought apublic nuisanceclaimagainst Thurston County and aprivatenuisanceclaimagainst
her neighborr for raisinghis seawall whichleft her property vulnerableto flooding. Grundy, 155
Wn.2d at 4 -5.
Thepublic nuisance claimwas based on assertions that Thurston County had
wrongfully and illegally allowed theproject by deciding that the seawall qualified for an
administrativeexemption fromsubstantial
permitting
requirements.
Grundy, 155 Wn.2d at 4 -5.
Rather than challengeThurston County' s administrativedecision, the objectingneighbor sought
to abatetheseawall as anuisance. Grundy, 155 Wn.2d at 4 -5. AlthoughtheSupreme Court did
not reachthepublic nuisanceissue, it disagreed withtheCourt of Appeals' suggestion that the
public nuisancewas foreclosed based on therulethat nothingwhichis doneor maintained under
the express authority of astatutecan.bedeemed anuisance. Grundy, 155 Wn.2d at 7 n.5. The
SupremeCourt stated that alawful action may still beanuisancebased on theunreasonableness
ofthelocality, manner ofuse, and circumstances of thecase. Grundy, 155 Wn.2d at 7 n.5.
Weinterpret RCW7.48.160 as requiringa direct authorization of action to escapethe
possibility
of nuisance. SeeJudd v. Bernard, 49 Wn.2d 619, 621, 304 P.2d 1046 ( 1956) ( State' s
eradication of fishin lakeis not anuisancebecauseastatuteauthorizes thefish and wildlife
department to removeor kill fishfor gamemanagement purposes) . Thereis no such direct
23
Consol.Nos.43076 -2 -II / 43243 -9 -II
authorization here. Wehold that thenoiseexemption and RCW7.48.160 do not foreclosethe
County' s nuisanceclaimbased on noise.
Finally, theClub argues that even ifthenoiseexemption does not automatically
determinewhether anuisance exists, thenoise statutes and ordinances, (includingtheshooting
rangeexemption) portray thecommunity standards. TheClub claims that theexemption reflects
thecommunity' s decision that authorized shooting rangesounds duringdesignated hours are not
unreasonable. Regulations affectingland usemay berelevant in " determiningwhether one
property owner has areasonableexpectation to be freeof aparticular interferenceresulting from
useof
neighboringproperty."
16 DAVIDK.DEWOLF &KELLERW.ALLEN, WASH INGTON
PRACTICE: TORT LAWANDPRACTICE 3. 13, at 150 ( 4th ed. 2013) .
But the shootingrange
exemption is merely one factor to consider in determiningthereasonableness of the Club' s
activities. Theexemption does not underminethetrial court' s findings that theClub' s activities
constituted anuisance.
Wehold that thetrial court' s unchallenged factual findings supported its determination
that thenoisegenerated fromtheClub' s activities constituted astatutory and common law
nuisance.
3.
Safety Issues
TheClub argues that thetrial court erred in rulingthat safety issues associated withthe
shooting range' s activities constituted anuisance. Wedisagreebecausethetrial court' s
unchallenged factual findings support its ruling.
24
Consol.Nos.43076 -241 / 43243 -9 -II
a. Unchallenged Findings of Fact
TheClub did not assign error to any of thetrial court' s findings of fact regardingsafety,
but it challenges thetrial court' s " conclusion" that theconditions constituted anuisance.
H owever, as discussed aboveregardingnoise, thetrial court' s determination that theunsafe
conditions constituted anuisanceactually is afactual finding. Lakey, 176 Wn.2d at 924; Tiegs,
135 Wn.2d at 15.
Therefore, onceagain our reviewis limited to determiningwhether therecord
contains substantial evidenceto support thetrial court' s findingthat safety issues arisingfrom
theClub' s activities were asubstantial and unreasonableinterferencewithneighbors' useand
enjoyment oftheir property. Casterline, 168 Wn.App.at 381.
Thetrial court madeunchallenged findings that ( 1) theClub' s property was a" blue sky"
range, withno overhead baffles to stop accidently or negligently discharged bullets, CP at 4070;
2) morelikely than not, bullets haveescaped and will escapetheClub' s shootingareas and
possibly will strikepersons or property in thefuturebased on thefirearms used at therange,
vulnerabilities of neighboringresidential property, allegations of bullet impacts in nearby
residential developments, evidenceof bullets lodged in trees aboveberms, and the opinions of
testifyingexperts; and ( 3) theClub' s rangefacilities, includingsafety protocols, wereinadequate
to prevent bullets fromleavingtheproperty.
Based on thesefindings offact, thetrial court determined that the ongoingoperation of
therangewithout adequatephysical facilities to confinebullets to theproperty creates an
ongoingrisk of bullets escapingtheproperty to injurepersons and property and constitutes a
public nuisanceunder RCW7.48.120, KCC 17.530.030, and KCC 17.110.515. Theundisputed
facts weresufficient to support afindingthat thesafety issues arisingfromtheClub' s activities
25
Consol.Nos.43076 -2 -II / 43243 -9 -II
wereunreasonableand constituted a" substantial and unreasonableinterference" withthe
surroundingproperty' s useand enjoyment. Grundy, 155 Wn.2d at 6.
Thetrial court heard testimony, considered the evidence, and found that the safety issues
weresignificant and interfered withthe surroundingproperty' s useand enjoyment. Accordingly,
wehold that theevidencewas sufficient to support thetrial court' s determination that safety
issues fromtheClub' s activities created anuisance.
b.
Probability of H arm
TheClub also argues that thetrial court' s findings do not support its conclusion that the
rangeis asafety nuisancebecause thetrial court did not find that any bullet fromtheClub had
ever struck aperson or nearby property. Similarly, the Club points out that thetrial court found
only that it was possible, not probable, that bullets could strikepersons or property, and argues
that themerepossibility ofharmcannot constitutea safety nuisance. Wedisagree.
TheClub provides no authority that afindingof actual harmis necessary to support a
determination that an activity constitutes asafety nuisance. And contrary to the Club' s
argument, nuisancecan bebased on areasonablefear of harm." Whereadefendant' s conduct
causes areasonablefear of usingproperty, this constitutes an injury takingtheformof an
interferencewith
property." Lakey,
176 Wn.2d at 923."[
T]his fear need not bescientifically
founded, so
long
as it is not unreasonable."
Lakey, 176 Wn.2d at 923.
In Everett v.Paschall, our Supreme Court enjoined as anuisance atuberculosis
sanitariummaintained in aresidential section ofthecity wherethereasonablefear and dread of
the diseasewas suchthat it depreciated thevalueof theadjacent property, disturbed theminds of
residents, and interfered withtheresidents' comfortableenjoyment oftheir property despitethat
26
Consol.Nos.43076 -2 -II / 43243 -9 -II
thesanitariumimposed no real danger. 61 Wash.47, 50 -53, 111 P. 879 ( 1910) .
And in Ferry v.
City ofSeattle, the SupremeCourt affirmed thetrial court' s decision to enjoin as anuisancethe
erection of awater storagereservoir in acity park dueto residents' very real and present
apprehension that it may collapseand flood theneighborhood damagingproperty and imperiling
residents. 116 Wash.648, 662 -63, 666, 203 P. 40 ( 1922) . Thecourt held that " thequestion of
thereasonableness of theapprehension turns again, not only on theprobablebreaking of the
reservoir, but therealization of theextent oftheinjury whichwould certainly ensue; that is to say
thecourt will look to consequences in determiningwhether thefear existingis reasonable."
Ferry, 116 Wash.at 662.
In any event, whether an activity causes actual or threatened harmor areasonable fear is
not thedispositiveissue. Thecrucial question for nuisanceliability is whether thechallenged
activities are reasonablewhen weighingtheharmto the aggrieved party against the social utility
ofthe
activity. Lakey,
176 Wn.2d at 923.
For instance, in Lakey, neighbors ofPuget Sound
Energy ( PSE) alleged that theelectromagnetic fields (EMFs) emanatingfromits substation
constituted aprivateand public nuisance. 176 Wn.2d at 914. Our Supreme Court concluded that
even though theneighbors had demonstrated reasonablefear fromEMF exposure, as amatter of
lawPSE' s operation ofthesubstation was reasonablebased on weighingtheharmagainst the
social utility. Lakey, 176 Wn.2d at 923 -25.
H ere, thetrial court found after weighingextensive evidencethat theClub' s range
facilities and safety protocols wereinadequateto prevent bullets fromleavingtheproperty and
that morelikely than not bullets will escapetheClub' s shooting areas. Thetrial court also found
that the Club' s property was closeto" numerous residential properties and civilian populations."
27
Consol.Nos.43076 -2 -II / 43243 -9 -11
CP at 4078. Theseundisputed facts support thetrial court' s determination that the Club' s
shooting activities created arisk ofproperty damageand personal injury to neighboring
residents, and thereforewereunreasonableunder the circumstances.
Thetrial court' s unchallenged factual findings support its implicit conclusion that the
Club' s activities wereunreasonablewithrespect to safety issues. Wehold that thetrial court' s
factual findings supported its determination that the safety issues arisingfromtheClub' s
activities constituted astatutory and common lawnuisance.
4. Expansion ofUse/Unpermitted Development
TheClub does not directly challengethetrial court' s rulingthat theClub' s unlawful
expansion of its nonconforminguse and violation ofvarious Codeprovisions represented a
public nuisance. KCC 17.110.515 provides that " any violation ofthis titleshall constitutea
nuisance, per se." KCC 17.530.030 provides that "
any
use... in violation ofthis titleis
unlawful, and apublic nuisance." Weheld abovethat theClub' s expansion of its
nonconforminguseviolated former KCC 17.455.060. Similarly, theClub' s unpermitted
development work violated Codeprovisions. See, e.g., KCC 12.10.030 ( activities requiring site
development
activity
permits) .
Accordingly, it is undisputed that the Club' s useexpansion and
unpermitted development work at theproperty constituted anuisanceas amatter of law.
5. Existenceof aPublic Nuisance
The County brought this action against theClub on behalf ofthepublic. As aresult, in
order to prevail the County must shownot only that theClub' s activities constitute anuisance,
but that they constituteapublic nuisance. TheClub argues that thetrial court erred in
determiningthat the Club' s activities constituted apublic nuisance. Wedisagree.
28
Consol.Nos.43076 -2 -II / 43243 -9 -I1
RCW7.48.130 provides that apublic nuisanceis onethat " affects equally therights of an
entire
community
or neighborhood, althoughthe extent of thedamage
may
be unequal." An
exampleof apublic nuisancewas presented in Miotkev. City ofSpokane, wherethe city of
Spokanedischarged rawsewageinto the SpokaneRiver. 101 Wn.2d 307, 309, 678 P.2d 803
1984) . Theplaintiffs weretheowners of lakefront properties belowadamon theriver. Miotke,
101 Wn.2d at 310. Thecourt held that therelease constituted apublic nuisancebecauseit
affected therights of all members of thecommunity livingalongthelakeshore. Miotke, 101
Wn.2dat331.
a. ExcessiveNoise
Thetrial court madeno express rulingthat theexcessivenoisefromtheClub' s activities
affected equally therights of an entire community. But thetrial court madeafindingaccepting
as persuasivethetestimony of current and former neighbors who described noise conditions that
interfere[ d] withthecomfort and repose of residents and their use and enjoyment of their real
properties" and who " describe[ ed] their everyday lives as beingexposed to the` sounds ofwar.' "
CP at 4073. Thetrial court also found that "[
t]hetestimony of County witnesses who are current
or former neighbors and down rangeresidents is representative ofthe experience of asignificant
number ofhome owners within two miles ofthe[ Club' s]
Property."
CP at 4073.
This finding
implicitly identifies therelevant " community" as theareawithin two miles oftheClub. Finally,
thetrial court cited to RCW7.48.130 ( and other nuisancestatutes) in enteringaconclusion of
lawstatingthat theClub' s property " has become and remains aplaceviolatingthecomfort,
repose, health and
safety of
the entire
community
or neighborhood." CP at 4078.( Emphasis
added.)
Consol.Nos.43076 -2 -II / 43243 -9 -II
TheClub argues that thenoiseconditions arenot apublic nuisancebecausethe evidence
shows that noisefromthe Club does not affect therights of all members of thecommunity
equally. TheClub points to testimony fromwitnesses that stated that thenoisefromthe Club did
not disturb them. H owever, every neighbor testifyingdiscussed thenoise caused by theClub,
whichthetrial court found affected all property within atwo mileradius oftheClub. In this
respect, thefacts here are similar to thosein Miotke, wherethepollutants affected every
lakefront property owner. Thefact that someresidents werenot much bothered by thenoise
does not defeat thepublic nuisanceclaimbecauseit relates to theextent of damagecaused by the
condition, whichneed not beequal.
Wehold that thetrial court' s unchallenged factual findings support its determination that
noisefromthe Club constituted a public nuisance.
b.
Safety Issues
Regarding safety, thetrial court entered findings referencingthetestimony ofrange
safety experts and findingthat " morelikely than not, bullets will escapetheProperty' s shooting
areas and will
possibly
strikepersons or damageprivate
property
in thefuture." CP at 4070.
Thetrial court also found that the Club' s facilities wereinadequateto contain bullets insidethe
property. H owever, once again thetrial court madeno factual findings regardingsafety that
specifically addressed thepublic nuisancequestion.
TheClub argues that fear ofbullets leavingtheClub' s property does not equally affect all
members ofthecommunity. As withthenoise, theClub argues that somewitnesses testified that
they werenot afraid oftheClub. H owever, thetrial court cited to RCW7.48.130 in statingthat
theClub' s
property "
has becomeand remains a place
violating
the...
safety oftheentire
30
Consol.Nos.43076 -2 -I1 / 43243 -9 -I1
community
or neighborhood." CP at 4078 ( Emphasis added.)
And thetrial court' s findingthat
it was likely that bullets would escapetheshootingareas and possibly causeinjury or damage
supports aconclusion that therisk of injury or damageis equal in all areas wherebullets might
escape. Althoughthetrial court did not address theexact parameters oftheaffected area, the
failureto identify theapplicablecommunity does not precludeapublic nuisancefinding.
Wehold that thetrial court' s unchallenged factual findings support its determination that
safety issues constituted apublic nuisance.
c. Expansion ofUse/Unpermitted Development
As noted above, KCC 17.530.030 provides that any usein violation of thezoning
ordinances is apublic nuisance, and KCC 12.32.010 provides that violation of certain permitting
requirements is apublic nuisance. This is consistent withtheprinciplethat onetypeofpublic
nuisanceinvolves an
activity
that is forbidden
by
statuteor ordinance. 17 STOEBUCK&
WEAVER, 10.3, at 663. As aresult, thetrial court ruled that theClub' s unpermitted
development work constituted apublic nuisance.
TheClub does not directly challengethetrial court' s findingof apublic nuisanceon this
basis. Becausethe Club' s expansion ofuse and unpermitted development work violated various
Codeprovisions, it is undisputed that the Club' s unpermitted development work constituted a
public nuisance.
D. EFFECT OF DEEDOF SALE
TheClub argues that even if its activities wereunlawful as discussed above, thelanguage
ofthedeed of saletransferringtheproperty titlefromtheCounty to theClub prevents the
County fromchallenging any part oftheClub' s status or operation as it existed in 2009,
31
Consol.Nos.43076 -2 -II / 43243 -9 -II
includingexpansion of its nonconforminguse status, permittingviolations, and nuisance
activities. Accordingto theClub, the deed represented a settlement of any potential disputes
regardingtheClub' s nonconforminguse, includingany Codeviolations, and was an affirmation
that the Club may operateas it then existed and improveits facilities within thehistorical eight
acres. TheClub argues that this settlement is enforceableas an accord and satisfaction
affirmativedefenseor abreach of contract counterclaim.The Club also argues that thedeed
provisions and extrinsic evidenceestop theCounty fromattemptingto terminatetheClub' s
nonconforminguseor denyingthat the Club' s then - existing facilities and operations werenot in
violation of theCodeor apublic nuisance.
Thetrial court ruled that thedeed did not prevent or estop theCounty fromchallenging
theClub' s unlawful uses of its property. Weagreewiththetrial court.
1. Standard of Review
Interpretation of adeed is amixed question of fact and law. AffiliatedFMIns.Co. v.
LTK
Consulting
Servs., Inc., 170 Wn.2d 442, 459 n.7, 243 P.3d 521 ( 2010) . Our goal is to
discover and giveeffect to theparties' intent as expressed inthedeed. H arris v.Ski Park Farms,
Inc., 120 Wn.2d 727, 745, 844 P.2d 1006 ( 1993) . Theparties' intent is aquestion offact and the
legal consequenceofthat intent is aquestion of law. Affiliated FMIns., 170 Wn.2d at 459 n.7.
Wedefer to thetrial court' s factual findings ifthey aresupported by substantial evidence and
reviewquestions of lawand conclusions of lawdenovo. Newport Yacht Basin Ass 'n ofCondo.
Owners v. SupremeNw.Inc., 168 Wn.
App.
56, 64, 277 P.3d 18 ( 2012) ; Casterline, 168 Wn.
App.at 381.
32
Consol.Nos.43076 -2 -I1 / 43243 -9 -II
2. Accord and Satisfaction Defense/Breach of Contract Counterclaim
TheClub argues that thetrial court erred in failingto interpret the deed as incorporatinga
covenant by the County to allowtheClub to continuetheshootingrangeas it then existed,
enforceableunder contract law, or as asettlement ofpotential land use disputes under principles
of accord and satisfaction.9 TheClub relies on ( 1) deed clauses providingfor improvement and
expansion ofthe
shooting
range, (
2) aclaimed implied duty to allowtheClub to performthe
deed' s public access clause, (
3) a claimed implied duty not to frustratethepurposeofthedeed
for the Club to continueoperatingtheshootingrange, and ( 4) extrinsic evidencethat allegedly
confirms the Club' s interpretation oftheparties' intent. Wedisagreewiththe Club.
a. Improvement and Expansion Clauses
Thedeed addresses improvement and expansion of theshootingrange. The Club refers to
the" improvement clause," whichprovides:
The Club]
shall confine its active shooting range facilities on the property
consistent withits historical useofapproximately eight ( 8) acres of activeshooting
ranges with the balance of theproperty serving as safety and noise buffer zones;
provided that [ the Club] may upgrade or improve the property and/ or facilities
within the historical
approximately
eight ( 8) acres in a manner consistent with
modernizing" the facilities consistent with management practices for a modern
shootingrange.
CP at 4088. Thedeed also contains an " expansion clause," which states that "[
theClub] may
also apply to Kitsap County for expansion beyond thehistorical eight ( 8) acres, for `supporting'
facilities for the shootingranges or additional recreational or shootingfacilities, provided that
9 TheClub also argues that the deed guaranteed its right to continueoperatingas a
nonconforming shootingrange as it existed at thetimeof thedeed. Becausewehold belowthat
theClub' s unlawful property use does not terminateits nonconformingusestatus, weneed not
address this issue.
33
Consol.Nos.43076 -2 -II / 43243 -9 -II
said expansion is consistent withpublic safety, and conforms withtheterms and conditions [ in
this deed]...
and therules and regulations of Kitsap County for development ofprivateland."
CPat4088.
TheClub argues that thejuxtaposition oftheimprovement clauseand theexpansion
clause( whichrequires an application and compliancewithrules and regulations) means that
improvements within thehistorical eight acres are allowed uses and do not need to comply with
county development regulations. Wedisagree.
First, theimprovement clausemakes no referenceto theClub' s existinguse, except to
limit theClub' s useto eight acres. Specifically, theclausesays nothingabout the lawfulness of
theClub' s existinguse, theCounty' s position regardingthat use, or thesettlement of any
potential land usedisputes.
Second, thelanguageregardingimprovements refers only to.futuremodernization. The
clausedoes not ratify unpermitted development activitiesthat occurred in thepast. Even ifthe
two clauses could beinterpreted as waivingany Coderequirements for futurework, thedeed by
its clear language does not apply to past work. And most of thedevelopment work thetrial court
referenced in its decision took placebeforethe deed' s execution.
Third, thedeed states that theconveyance of land is madesubject to certain covenants
and conditions, " thebenefits ofwhich shall inureto thebenefit ofthepublic and theburdens of
which shall bind the[ Club]." CP at 4087. Theimprovement clauseis one such restrictive
covenant: it restricts the Club' s property use to its activeshootingrangefacilities consistent with
its eight acres ofhistorical use and then makes an exception for certain improvements within the
eight acres and further expansion by application. It would beunreasonableto viewarestrictive
34
Consol.Nos.43076 -2 -II / 43243 -9 -II
covenant in thedeed as an affirmativeratification of past development and awaiver of future
development permittingviolations. Accordingly, wereject the Chub ' s argument that the
improvement and expansion clauses precludetheCounty fromchallengingtheClub' s shooting
rangeactivities.
b. Public Access Clause
Thedeed provides that access by thepublic to theClub' s property must beoffered at
reasonableprices and on anondiscriminatory basis. TheClub argues that thetrial court erred in
failingto giveeffect to theCounty' s implied duty to allowthe Club to performthepublic
access provision in the[ d]eed." Br.of Appellant at 43.
TheClub states that it was dependingon
the County' s approval of its then - existingfacilities and operations when it agreed to provide
public access. TheClub also claims that the County' s attempt to shut down theshootingrange
would prevent theClub fromperformingits sideofthecontract. Wedisagree.
Thelanguagein thepublic access clausedoes not restrict theCounty fromenforcing
zoningregulations or seekingto abatenuisanceconditions on the conveyed property. And the
Club has cited no authority for theproposition that its agreement to providepublic access
somehowprevents theCounty fromtaking actions that would limit Club activities. Accordingly,
wereject theClub' s argument that thepublic access clauseprecludes theCounty from
challengingthe Club' s shooting rangeactivities.10
10 Becausewehold belowthat terminatingthe Club' s nonconforminguse is not an appropriate
remedy for theClub' s unlawful activities, weneed not address whether thepublic access clause
would prevent theCounty fromshuttingdown theClub.
35
Consol.Nos.43076 -2 -I1 / 43243 -9 -11
c.
Implied Duty RegardingFrustration of Purpose
TheClub contends that thetrial court erred in " failingto giveeffect to the County' s
implied duty not to frustratethe[ d]eed' s purpose of allowingtheClub to continueoperatingits
nonconformingshooting
rangeas it existed within thehistorical eight acres of activeuse." Br.of
Appellant at 45.
TheClub argues that the deed expressed theunderstandingthat theClub was
purchasingtheproperty for that purposeand that as thegrantor /seller, the County implied that
what was sold was suitablefor that purpose and boretherisk ifit was not. Wedisagree.
Under theCode, theClub didhavetheright to continueits nonconforminguse. KCC
17.460.020. But the County' s lawsuit alleged that theClub had expanded outsideits
nonconforminguseright, developed theland without proper permits, and operated therangein a
manner that constituted anuisance. Thosealleged conditions areall within theClub' s control.
TheCounty' s saleoftheland even for thepurpose of facilitatingthe Club' s continued existence
does not prevent theCounty frominsistingthat it beoperated in amanner consistent withthe
law. Wereject the Club' s argument.
d. Extrinsic Evidence
TheClub argues that extrinsic evidencedemonstrated that theCounty intended to resolve
all land use issues at the Club' s property by theterms of thedeed. TheClub claims that ( 1) the
County' s statements in conjunction withthedeed werean expression of its intent to approveand
ratify any potentially actionableexistingconditions on theproperty, and ( 2) theCounty' s
knowledgeofpotential issues involvingtheClub shows that the County intended to settleor
waivethoseissues withthedeed. Wehold that therecord supports thetrial court' s factual
findings.
36
Consol.Nos.43076 -2 -II / 43243- 9- 11
TheClubrelies on four pieces of extrinsic evidence. First, theminutes and recordings of
theBoard' s meetingincludestatements by acounty official and two county commissioners in
support oftheland sale so that its existinguse as ashootingrangemay continue. Second, a
Board resolution supported the Club' s continued shootingrangeoperation and stated that it is " in
thebest economic interest of theCounty to providethat [theClub] continueto operatewithfull
control over the
property
on whichit is located." CP at 858. Third, aletter fromoneof the
county commissioners entered into thepublic record stated that theBoard earlier had assured a
state
agency (
that was
consideringproviding
grant funds to the Club) , that the"[ Club] and its
improvements werenot at odds withthe
County'
s
long-
terminterest in the
property."
CP at
3793. Fourth, the evidenceshows that at thetimethe deed was executed theCounty was aware
of possible existingpermitting violations, unlawful expansion, and complaints fromneighbors
about theClub.
H owever, thetrial court' s findings showthat it considered this evidenceand concluded
that theevidencedid not support theClub' s arguments. TheClub argues that thetrial court
erroneously
found that "[
t]he only evidenceproduced at trial to discern theCounty' s intent at the
timeof the2009 Bargain and SaleDeed was thedeed itself," CP 4058, becausetheClub
produced substantial evidence bearing on theCounty' s intent and thetrial court failed to consider
it. But weinterpret thecourt' s factual findingto mean that thetrial court considered the deed as
the only credibleevidenceoftheCounty' s intent. Thefindingcannot be read to mean that the
deed was theonly evidenceproduced because it is clear that thetrial court did consider other
evidencebearingon theparties' intent.
37
Consol.Nos.43076 -2 -1I / 43243 -9 -II
After consideringtheextrinsic evidence, thetrial court found that ( 1) theBoard' s minutes
and recordings do not reveal an intent to settledisputed claims or land use decisions or land use
status at theproperty, and ( 2) theparties did not negotiatefor theresolution of potential civil
violations of theCodeat theproperty or to resolvetheproperty' s land usestatus.11 Thetrial
court also madean unchallenged factual findingthat the deed does not identify or address any
then - existingdisputes between theClub and County. TheClub disagrees withthesefindings, but
theweight given to certain evidenceis within thetrial court' s discretion.
In essence, the Club is askingus to substituteour viewof theevidencefor thetrial court' s
findings. That is not our role.
W]hereatrial court finds that evidenceis insufficient topersuadeit that something
occurred, an appellate court is simply not permitted to reweigh the evidence and
cometo acontrary finding. It invades theprovinceofthetrial court for an appellate
court to find compellingthat whichthetrial court found unpersuasive. Yet, that is
what appellant wants this court to do.
Therewas conflicting evidencein this case.
Thetrial judgeweighed that conflicting evidenceand chosewhich of it to believe.
That is theend ofthe story.
Balev.Allison, 173 Wn.
App.
435, 458, 294 P.3d 789 ( 2013) (
quotingQuinn v. Cherry Lane
Auto Plaza, Inc., 153 Wn.
App.
710, 717, 225 P.3d 266 ( 2009) ) ( emphasis omitted) .
Accordingly, wereject theClub' s argument that extrinsic evidencesupports its interpretation of
the deed language.
11 The County argues that thesefindings of fact should betreated as verities becausetheClub did
not assign error to themin its initial brief and fails to assign error to thetrial court' s failureto
adopt
any
of its proposed findings. RAP 10.3(
g) , 10.4. H owever, the County acknowledges and
responds to thefindings of fact that the Club disputes in the
body
of its brief findings 23, 35,
26, and 57. AlthoughtheClub violated.RAP 10.3(
g) ,
weexerciseour discretion to waivethe
Club' s failureto strictly comply withtheprocedural rules. SeeIn reDisciplinary Proceedings
Against Conteh, 175 Wn.2d 134, 144, 284 P.3d 724 ( 2012) .
38
Consol.Nos.43076 -2 -II / 43243 -9 -II
3. Estoppel Defense
TheClub assigns error to thetrial court' s denial of its equitableestoppel defense.
Apparently the Club contends that theCounty is estopped fromasserting all of its claims. We
need not decidewhether theCounty should be estopped fromseeking termination oftheClub' s
nonconforming use becausewehold belowthat termination is not an appropriateremedy for the
Club' s allegedly prohibited activities. But wedisagreethat estoppel applies to the County' s
other claims.
Equitableestoppel against agovernmental entity requires aparty to provefiveelements
by clear and convincing evidence:
1) a statement, admission, or act by theparty to beestopped, whichis inconsistent
withits later claims; (
2) theasserting party acted in relianceupon thestatement or
action; (
3) injury would result to theassertingparty iftheother party were allowed
to repudiate its prior statement or action; (
4) estoppel is ` necessary to prevent a
manifest injustice'; and ( 5) estoppel will not impair governmental functions.
Silverstreak, Inc.
v.
Dep'
t
of
Labor &Indus., 159 Wn.2d 868, 887, 154 P.3d 891 ( 2007) (
quoting
Kramarevcky
v.
Dep'
t
of
Soc.& H ealthServs., 122 Wn.2d 738, 743, 863 P.2d 535 ( 1993) ) .
Whether equitablerelief is appropriateis a question of law. Niemann v. Vaughn Cmty. Church,
154 Wn.2d 365, 374, 113 P.3d 463 ( 2005) .
TheClub' s estoppel defenseis not viablebecausetheCounty' s enforcement of its Code
and nuisancelawis not inconsistent withits earlier position. TheCounty' s general support for
theshootingrange' s continued existence is not inconsistent withits current insistencethat the
range conformto development permittingrequirements and operate in amanner not constituting
anuisance. Moreover, theCounty' s enforcement of its zoningcode and nuisancelawis a
government function. See City ofMercer Island v. Steinmann, 9 Wn.App.479, 482, 513 P.2d
39
Consol.Nos.43076 -2 -II / 43243 -9 -II
80 ( 1973) .
Ifthe County was estopped fromenforcingthose laws, it would certainly impair
governmental functions. Finally, estoppel is not required to prevent manifest injusticehere,
especially because theClub' s allegation ofthe County' s inconsistency is tenuous.
TheClub has failed to provetheessential elements of estoppel. Wehold that thetrial
court did not err in rejectingtheClub' s estoppel defense.
REMEDY FOR TH E CLUB' S UNLAWFUL USE
A. TERMINATIONOF NONCONFORMING USE
TheClub argues that thetrial court erred in concludingthat an unlawful expansion of the
Club' s nonconforminguse, unpermitted development activities, and public nuisanceactivities
terminated the Club' s legal nonconforming use of theproperty as ashootingrange. As aresult,
theClub argues that thetrial court erred in issuingapermanent injunction shutting down the
shootingrangeuntil the Club obtains aconditional usepermit. Weagree, and hold that the
termination of the Club' s nonconforming use is not theappropriateremedy for its unlawful uses.
1. Standard ofReview
Injunctiverelief is an equitableremedy, and wereviewatrial court' s decision to grant an
injunction and theterms of that injunction for an abuse of discretion. Early Dawn Estates, 173
Wn.App.at 789. H owever, whether termination of aproperty' s nonconforminguse is an
appropriateremedy for unlawful uses ofthat property is aquestion of law, whichwereviewde
novo. SeeKingCounty DDES, 177 Wn.2d at 643 ( reiteratingthat legal questions " are reviewed
denovo.") .
Iftermination of thenonconforminguse is an appropriate remedy as amatter of law,
weapply the abuse of discretion standard in reviewingthetrial court' s decision to select that
remedy.
40
Consol.Nos.43076 -2 -II / 43243 -9 -II
2.
Kitsap County Code
TheKCC chapter on nonconforminguses, KCC 17.460.010, allows nonconforminguses
to continueuntil they areremoved or discontinued. KCC 17.460.020 further states that a
nonconforming
use
may
becontinued as
long
as it is " otherwiselawful."
TheCounty argues that
this ordinance allows termination ofthe Club' s operation as a shootingrangebecausethe Club' s
unlawful expansion, permittingviolations, and /or nuisanceprevents thenonconforminguse from
being"
otherwiselawful."
WedisagreewiththeCounty' s interpretation oftheCode.
First, based on theplain language oftheCodeit is thenonconforming usethat must
remain lawful. KCC 17.460.020. A "use" of land means " thenatureof occupancy, typeof
activity
or character and formof improvements to which land is devoted." KCC 17.110.730.
The Club' s use oftheproperty is as ashootingrange. Therefore, thequestion under KCC
17.460.020 is whether ashootingrangeis alawful useofthe Club' s property ( other than thefact
it does not conformto
zoning
regulations) , not whether specific activities at therangeare
unlawful. For instance, termination oftheClub' s nonconformingusemay bean appropriate
remedy under KCC 17.460.020 ifthat usewould not beallowed to continueunder any
circumstances, such as iftheCounty or theStatepassed alawprohibitingall shootingranges.
But heretheuseof theClub' s property as ashootingrangeremains lawful, and therefore any
unlawful expansion ofuse, permittingviolations, or nuisanceactivities cannot trigger
termination oftheotherwiselawful nonconforminguse.
Second, thepenalty and enforcement provisions oftheCodedo not support atermination
remedy. KCC 17.530.020, whichis asection entitled " penalties" in theenforcement chapter of
thezoningtitle, provides that violation of any provision of thezoningtitleconstitutes a civil
41
Consol.Nos.43076 -2 -II / 43243 -9 -II
infraction and that the County may seek civil penalties. There is no mention of forced
termination of an existingnonconformingusebased on aCodeviolation. And theCode
expressly provides for aless drastic remedy. KCC 17.530.050, which also is within the
enforcement chapter, provides that " thedirector may accept awritten assuranceof
discontinuanceof any act in violation ofthis titlefromany person who has engaged in such act."
In support of this position, wenotethat theCounty' s chief buildingofficial Jeffrey Rowe
testified that theCode allows alandowner to get back into conformity by retracingaprohibited
expansion, enlargement, or changeofuse.
Specifically regardingnuisance, KCC 17.530.030 provides that any person may bringan
action to abateanuisance. But thereis no authority supporting aproposition that an activity on
property that constitutes a nuisanceoperates to terminatethat property' s nonconforminguse
status.
Third, theCounty' s interpretation allowingany expansion of use, permittingviolation, or
nuisance activity to terminateanonconformingusewould evisceratethevalueand protection
provided by alegal nonconforminguse. Nonconforminguse status would havelittlevalueif an
expansion ofthat usewould prevent theowner fromcontinuingthelawful use in placebeforethe
expansion. And this would be contrary to the Code' s stated purposein KCC 17.460.010: to
permit nonconforminguses to continue.
Wehold that theCode does not providefor atermination remedy for Codeviolations or
unlawful expansion of nonconforminguses.
42
Consol.Nos.43076 -2 -II / 43243 -9 -1I
2. Common Law
Thecommon lawalso does not support thetrial court' s remedy. Wehavefound no
Washington caseholdingthat an unlawful expansion of anonconforminguse, permitting
violations, or nuisanceactivities terminates anonconforminguse. Further, no Washington case
has even suggested such aremedy. In Keller, theplaintiffs challenged as unlawful the
enlargement of achlorinemanufacturingfacility that was anonconforminguse. 92 Wn.2d at
728 -29. Althoughthe SupremeCourt did not specifically address theremedy for an unlawful
expansion, it gaveno indication that theentirefacility could be shut down iftheenlargement
constituted an unlawful expansion.
Courts in other jurisdictions have concluded that in theabsence of statutory authority, an
unlawful expansion of anonconforminguse does not operateto terminatethat use. Dierbergv.
Bd.
ofZoning
Adjustment
of
St.Charles
County,
869 S.W.2d 865, 870 ( Mo.
App.
1994) ; Garcia
v.H olze, 94 A.D.2d 759, 462 N.Y.S.2d 700, 703 ( 1983) .
Instead, theremedy is to discontinue
theactivities that exceed thelawful nonconforming use. See Dierberg, 869 S.W.2d at 870.
Similarly, no Washington court has held that permittingviolations associated witha
nonconforminguseterminates that use. In Rhod -A- Zalea, the SupremeCourt held that theowner
of apeat mineoperated as anonconformingusehad violated permittingrequirements for grading
activities.
136 Wn.2d at 19 -20. Again thecourt did not specifically address theremedy for this
violation, but did not even suggest that thefailureto obtain required permits would allow
termination oftheminingoperation.
And no Washington court has held that nuisance activities associated with a
nonconforming useterminatethat use. H istorically, public nuisances wereprosecuted only
43
Consol.Nos.43076 -2 -II / 43243 -9 -II
criminally (
fineor jail time) , but in moremodern times legislators haveenacted measures
emphasizing
abatement ofthenuisanceover
assessing
criminal penalties. 8 TH OMPSONONREAL
PROPERTY, SECONDTH OMASEDITION 73.08( d) , at 479 -80 ( David A.Thomas ed. 2013) . See
also RCW7.48.200 (
providing
that "[ t]heremedies against apublic nuisance are: Indictment or
information, a civil action, or abatement ") .
3.
AppropriateRemedy
Wehold that termination of the Club' s nonconforminguse status is not theproper
remedy even thoughthe Club did expand its use, engage in unpermitted development activities,
and engagein activities that constitute anuisance. Neither the Codenor Washington authority
supports this remedy, and such aremedy would impermissibly interferewithlegal
nonconforminguses.
In order to implement its conclusion that theClub' s nonconformingusehad terminated,
thetrial court issued an injunction enjoiningtheClub fromoperating a shootingrange on its
property until it obtained aconditional usepermit for aprivaterecreational facility or someother
authorized use. Wevacatethis injunction becauseit is based on an incorrect conclusion that the
nonconformingusewas terminated.
Theappropriateremedy for the Club' s expansion of its nonconforminguse must reflect
thefact that some change in use "intensification"
is allowed and only " expansion" is
unlawful. For thepermittingviolations, the Codeprovides the appropriateremedies for the
Club' s
permitting
violations. See KCC 12.32.010, .040, .050; KCC 19.100.165. Weaddress the
appropriateremedy for public nuisancein thesection below.
44
Consol.Nos.43076 -2 -II / 43243 -9 -II
Weremand to thetrial court to determinetheappropriateremedies for theClub' s
expansion of its nonconforminguse and the Club' s permittingviolations.
B. REMEDY FORPUBLICNUISANCE
Thetrial court issued asecond permanent injunction designed to abatethepublic
nuisanceconditions at theClub' s property, whichprohibited theuseof fully automatic firearms,
rifles of greater than nominal .30 caliber, explodingtargets and cannons, and useoftheproperty
as an outdoor shootingrangebefore9: 00 AMor after 7: 00 PM. TheClub argues that thecourt
erred in enteringtheinjunction becausetheactivities enjoined do not necessarily constitute a
nuisance, and thereforetheinjunction represents thetrial court' s arbitrary opinions regarding
howashootingrange should be operated. Wedisagree.
Thetrial court had thelegal authority to enter an injunction designed to abate apublic
nuisanceunder both RCW7.48.200 and KCC 17.530.030. Therefore, theonly issueis whether
theterms oftheinjunction wereappropriate. Injunctiverelief is an equitableremedy, and we
reviewatrial court' s decision to grant an injunction and theterms ofthat injunction for an abuse
of discretion. Early Dawn Estates, 173 Wn.App.at 789. An abuseof discretion occurs when
thetrial court' s decision is manifestly unreasonable or is exercised on untenable grounds or for
untenablereasons. Recreational
Equip., 165 Wn.App.at 559. Wewill not reweigh thetrial
court' s equitableconsiderations. Recreational
Equip., 165 Wn.App.at 565.
H ere, thetrial court' s findings aresupported by substantial evidence and thosefindings support
its discretionary determination that it should grant equitablerelief. Therefore, wehold that the
trial court did not abuseits discretion in issuingthis injunction as aremedy for theClub' s
45
Consol.Nos.43076 -2 -II / 43243 -9 -II
nuisanceactivities. Thelimitation of theactivities is reasonably related to thenoise- related
nuisanceand possibly to thesafety - related nuisance.
Thetrial court also issued awarrant of abatement, withterms to bedetermined at alater
hearing. TheClub argues that this warrant of abatement was issued in error because it fails to set
forththe conditions of abatement. H owever, thetrial court had statutory authority to issuethe
warrant of abatement, and under thecircumstances it was not inappropriateto defer entry of
specific details.
ISSUESRAISEDONLY BYAMICUSBRIEFS
Two amicus briefs raiseadditional arguments against terminatingtheClub' s
nonconforminguseright. TheKitsap County Allianceof Property Owners argues that
substantive dueprocess rights prevents the Codefrombeinginterpreted to terminatetheClub' s
nonconforminguseright. And theNational RifleAssociation argues that such aremedy violates
the Second Amendment. Neither ofthese issues was raised at thetrial court or in theparties'
appellatebriefs.
Wedo not need to consider thearguments raised solely by amici. See, e.g., Statev.
H irschfelder, 170 Wn.2d 536, 552, 242 P.3d 876 ( 2010) ( courts " need not address issues raised
only by
amici ") ; Statev.Jorden, 160 Wn.2d 121, 128 n.5, 156 P.3d 893 ( 2007) ( court is " not
bound to consider argument raised
only by
amici ") . Moreover, becausewehold that termination
of theClub' s nonconformingright was error, thereis no need to consider these constitutional
arguments. Werefrain fromdeciding constitutional issues ifthe case can bedecided on non-
constitutional grounds. IslaVerdeInt' l.H oldings, Inc., v. City ofCamas, 146 Wn.2d 740, 752,
49 P.3d 867 ( 2002) .
46
Consol.Nos.43076 -2 -II / 43243 -9 -II
CONCLUSION
Weaffirmthetrial court' s rulings that ( 1) the Club' s commercial useoftheproperty and
dramatically increased noiselevels constitutean impermissibleexpansion of its nonconforming
use; (
2) the Club' s development work unlawfully violated various County land usepermitting
requirements; and ( 3) theexcessivenoise, unsafe conditions, and unpermitted development work
constituted apublic nuisance. Wereversethetrial court' s rulingthat increased hours of
operation constitutean expansion of its nonconforminguse.
Regardingtheremedy for the Club' s unlawful activities, wereversethetrial court' s
rulingthat termination ofthe Club' s nonconformingusestatus as ashooting rangeis aproper
remedy. Wevacatethetrial court' s injunction enjoiningtheproperty' s useas a shootingrange.
But weaffirmthetrial court' s injunction limitingcertain activities at theClub in order to abate
the Club' s nuisance activities. Weremand for thetrial court to determinetheappropriateremedy
for theClub' s expansion of its nonconforminguse and permittingviolations.
Weconcur:
47