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Kitsap County v. Kitsap Rifle & Revolver Club

Court of Appeals of Washington, Division 2

October 28, 2014

Kitsap County, Respondent
v.
Kitsap Rifle and Revolver Club et al., Appellants

Oral Argument June 26, 2014

As amended by order of the Court of Appeals February 10, 2015.

Page 329

[Copyrighted Material Omitted]

Page 330

Appeal from Pierce County Superior Court. Docket No: 10-2-12913-3. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 02/09/2012.

Brian D. Chenoweth (of Chenoweth Law Group PC ) ( Brooks M. Foster, of counsel), for appellants.

Russell D. Hauge, Prosecuting Attorney for Kitsap County, and Jennine E. Christensen and Christine M. Palmer, Deputies, for respondent.

David S. Mann on behalf of CK Safe & Quiet LLC, amicus curiae.

Matthew A. Lind on behalf of Kitsap Alliance of Property Owners, amicus curiae.

C.D. Michel and Richard B. Sanders on behalf of National Rifle Association Inc., amicus curiae.

Authored by Bradley A. Maxa. Concurring: Jill M Johanson, Rich Melnick.

OPINION

[184 Wn.App. 261] Bradley A. Maxa, J.

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[¶1] The Kitsap Rifle and Revolver Club (Club) appeals from the trial court's decision following a bench trial that the Club engaged in unlawful uses of its shooting range property. Specifically, the Club challenges the trial court's determinations that the Club had engaged in an impermissible expansion of its nonconforming use; that the Club's site development activities violated land use permitting requirements; and that excessive noise, unsafe conditions, and unpermitted development work at the shooting range constituted a public nuisance. The Club also argues that even if its activities were unlawful, the language of the deed of sale transferring the property title from Kitsap County (County) to the Club prevents the County from filing suit based on these activities. Finally, the Club challenges the trial court's remedies: terminating the Club's nonconforming use status and entering a permanent injunction restricting the Club's use of the property as a

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shooting range until it obtains a conditional use permit, restricting the use of certain firearms at the Club, and limiting the Club's hours of operation to abate the nuisance.[1]

[¶2] We hold that (1) the Club's commercial use of the property and dramatically increased noise levels since 1993, but not the Club's change in its operating hours, constituted an impermissible expansion of its nonconforming use; (2) the Club's development work unlawfully violated various county land use permitting requirements; (3) the excessive noise, unsafe conditions, and unpermitted development work constituted a public nuisance; (4) the language in the property's deed of sale from the County to the Club did not preclude the County from challenging the Club's expansion of use, permit violations, and nuisance [184 Wn.App. 262] activities; and (5) the trial court did not abuse its discretion in entering an injunction restricting the use of certain firearms at the shooting range and limiting the Club's operating hours to abate the public nuisance. We affirm the trial court on these issues except for the trial court's ruling that the Club's change in operating hours constituted an impermissible expansion of its nonconforming use. We reverse on that issue.

[¶3] However, we reverse the trial court's ruling that terminating the Club's nonconforming use status as a shooting range is a proper remedy for the Club's conduct. Instead, we hold that the appropriate remedy involves specifically addressing the impermissible expansion of the Club's nonconforming use and unpermitted development activities while allowing the Club to operate as a shooting range. Accordingly, we vacate the injunction precluding the Club's use of the property as a shooting range and remand for the trial court to fashion an appropriate remedy for the Club's unlawful expansion of its nonconforming use and for the permitting violations.

FACTS

[¶4] The Club has operated a shooting range in its present location in Bremerton since it was founded for " sport and national defense" in 1926. Clerk's Papers (CP) at 4054. For decades, the Club leased a 72-acre parcel of land from the Washington Department of National Resources (DNR). The two most recent leases stated that the Club was permitted to use eight acres of the property as a shooting range, with the remaining acreage serving as a buffer and safety zone.

Confirmation of Nonconforming Use

[¶5] In 1993, the chairman of the Kitsap County Board of Commissioners (Board) notified the Club and three other shooting ranges located in Kitsap County that the County considered each to be lawfully established, nonconforming [184 Wn.App. 263] uses. This notice was prompted by the shooting ranges' concern over a proposed new ordinance limiting the location of shooting ranges (Ordinance 50-B-1993). The County concedes that as of 1993 the Club's use of the property as a shooting range constituted a lawful nonconforming use.

Property Usage Since 1993

[¶6] As of 1993, the Club operated a rifle and pistol range, and some of its members participated in shooting activities in the wooded periphery of the range. Shooting activities at the range occurred only occasionally - usually on weekends and during the fall " sight-in" season for hunting - and only during daylight hours. CP at 4059. Rapid-fire shooting, use of automatic weapons, and the use of cannons occurred infrequently in the early 1990s.

[¶7] Subsequently, the Club's property use changed. The Club allowed shooting between 7:00 am and 10:00 pm, seven days a week. The property frequently was used for regularly scheduled shooting practices and practical shooting competitions where participants used multiple shooting bays for rapid-fire shooting in multiple directions. Loud rapid-fire shooting often began as early as 7:00 am and could last as late as 10:00 pm. Fully automatic weapons were regularly used

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at the Club, and the Club also allowed use of exploding targets and cannons. Commercial use of the Club also increased, including private for-profit companies using the Club for a variety of firearms courses and small arms training exercises for military personnel. The United States Navy also hosted firearms exercises at the Club once in November 2009.

[¶8] The expanded hours, commercial use, use of explosive devices and higher caliber weaponry, and practical shooting competitions increased the noise level of the Club's activities beginning in approximately 2005 or 2006. Shooting sounds changed from " occasional and background in nature, to clearly audible in the down range neighborhoods, and frequently loud, disruptive, pervasive, and long in duration." [184 Wn.App. 264] CP at 4073. The noise from the Club disrupted neighboring residents' indoor and outdoor activities.

[¶9] The shooting range's increased use also generated safety concerns. The Club operated a " blue sky" range with no overhead baffles to stop the escape of accidentally or negligently discharged bullets. CP at 4070. There were allegations that bullets had impacted nearby residential developments.

Range Development Since 1996

[¶10] From approximately 1996 to 2010, the Club engaged in extensive shooting range development within the eight acres of historical use, including (1) extensive clearing, grading, and excavating wooded or semi-wooded areas to create " shooting bays," which were flanked by earthen berms and backstops; (2) large scale earthwork activities and tree/vegetation removal in a 2.85-acre area to create what was known as the 300-meter rifle range; [2] (3) replacing the water course that ran across the rifle range with two 475-foot culverts, which required extensive work - some of which was within an area designated as a wetland buffer; (4) extending earthen berms along the rifle range and over the newly buried culverts, which required excavating and refilling soil in excess of 150 cubic yards; and (5) cutting steep slopes higher than five feet at several locations on the property.

[¶11] The Club did not obtain conditional use permits, site development activity permits, or any of the other permits required under the Kitsap County Code for its development activities.

Club's Purchase of Property

[¶12] In early 2009, the County and DNR negotiated a land swap that included the 72 acres the Club leased. [184 Wn.App. 265] Concerned about its continued existence, the Club met with County officials to discuss the transaction's potential implications on its lease. The Club was eager to own the property to ensure its shooting range's continued existence, and the County was not interested in owning the property because of concern about potential heavy metal contamination from its long term shooting range use. In May 2009, the Board approved the sale of the 72-acre parcel to the Club.

[¶13] In June, DNR conveyed to the County several large parcels of land, including the 72 acres leased by the Club. The County then immediately conveyed the 72-acre parcel to the Club through an agreed bargain and sale deed with restrictive covenants.

[¶14] The bargain and sale deed states that the Club " shall confine its active shooting range facilities on the property consistent with its historical use of approximately eight (8) acres of active shooting ranges." CP at 4088. The deed also states 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 shooting range." CP at 4088. The deed does not identify or address any property use disputes between the Club and County.

Lawsuit and Trial

[¶15] In 2011, the County filed a complaint for an injunction, declaratory judgment, and nuisance abatement against the Club. The County alleged that the Club had impermissibly expanded its nonconforming use as a

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shooting range and had engaged in unlawful development activities because the Club lacked the required permits. The County also alleged that the Club's activities constituted a noise and safety public nuisance. The County requested termination of the Club's nonconforming use status and abatement of the nuisance.

[¶16] After a lengthy bench trial, the trial court entered extensive findings of fact and conclusions of law. The trial [184 Wn.App. 266] court concluded that the Club's shooting range operation was no longer a legal nonconforming use because (1) the Club's activities constituted an expansion rather than an intensification of the existing nonconforming use; (2) the Club's use of the property was illegal because it failed to obtain proper permits for the development work; and (3) the Club's activities constituted a nuisance per se, a statutory public nuisance, and a common law nuisance due to the noise, safety, and unpermitted land use issues. The trial court issued a permanent injunction prohibiting use of the Club's property as a shooting range until issuance of a conditional use permit, which the County could condition upon application for all after-the-fact permits required under Kitsap County Code (KCC or Code) Titles 12 and 19. The trial court also issued a permanent injunction prohibiting the use of fully automatic firearms, rifles of greater than nominal .30 caliber, and exploding targets and cannons, and the property's use as an outdoor shooting range before 9:00 am or after 7:00 pm.

[¶17] The Club appeals. We granted a stay of the trial court's injunction against all shooting range activities on the Club property until such time as it receives a conditional use permit. However, we imposed a number of conditions on the Club's shooting range operations pending our decision.

ANALYSIS

Standard of Review

[¶18] We review a trial court's decision following a bench trial by asking whether substantial evidence supports the trial court's findings of fact and whether those findings support the trial court's conclusions of law. Casterline v. Roberts, 168 Wn.App. 376, 381, 284 P.3d 743 (2012). Substantial evidence is the " quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, [184 Wn.App. 267] 73 P.3d 369 (2003). Here, the Club did not assign error to any of the trial court's findings of fact, and only challenged four findings regarding the deed in its brief.[3] Accordingly, we treat the unchallenged findings of fact as verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).

[¶19] The process of determining the applicable law and applying it to the facts is a question of law that we review de novo. Erwin v. Cotter Health Ctrs., Inc., 161 Wn.2d 676, 687, 167 P.3d 1112 (2007). We also review other questions of law de novo. Recreational Equip., Inc. v. World Wrapps Nw., Inc., 165 Wn.App. 553, 559, 266 P.3d 924 (2011).

[¶20] We apply customary principles of appellate review to an appeal of a declaratory judgment reviewing the trial court's findings of fact for substantial evidence and the trial court's conclusions of law de novo. Nw. Props. Brokers Network, Inc. v. Early Dawn Estates ...


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