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Moore v. Steve's Outboard Serv.

Supreme Court of Washington, En Banc

December 11, 2014

Hal Moore et al., Respondents ,
Steve's Outboard Service et al., Petitioners

Argued October 23, 2014.

Appeal from Mason County Superior Court 06-2-00563-9 Honorable Toni A. Sheldon.

Bruce J. Finlay, for petitioners.

Dennis D. Reynolds (of Dennis D. Reynolds Law Office ), for respondents.

AUTHOR: Justice Steven C. González. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.


Page 170

González, J.

¶ 1 This case asks us to examine the nature of a nuisance per se claim. Generally, those alleging that their neighbors' activities are a nuisance must prove that the activities are, on balance, unreasonable and cause some inconvenience, discomfort, or interference. When, however, an activity is a nuisance per se, plaintiffs need not show that the activity is also unreasonable. Here, the plaintiffs sued their neighbors, arguing, among other things, that the noise, smoke, fumes, and traffic associated with a small motor repair shop was in effect a nuisance in fact and that their neighbors are subject to nuisance per se liability because the business lacked required permits. The trial judge entered detailed findings of fact on the plaintiffs' nuisance in fact claims; found that the alleged noise, smoke, fumes, and traffic related to the business did not injure the plaintiffs' property, unreasonably detract from the plaintiffs' enjoyment of their property, or cause cognizable damages; and dismissed the case. The Court of Appeals reversed in part, concluding the trial court erred by not deciding whether the business was required to obtain any more permits. Finding that the plaintiffs did not establish that the business is a nuisance per se, we reinstate the trial court's judgment.

[182 Wn.2d 153]Facts

¶ 2 This case started as a conflict among neighbors living near Hood Canal off of State Route 106 near Belfair. One of the neighbors, Steven Love, lives on the upland side of the highway. He has been repairing boat motors on his property, at least occasionally, since he moved there around 1986. In 1994, Love left his old employer and established his own outboard motor maintenance and repair operation, called Steve's Outboard Service (SOS), out of his home and several outbuildings on his property. That same year, he filed a Shoreline Management Act of 1971 (SMA), ch. 90.58 RCW, permit application proposing to build a 30' by 45' metal building on his property for his business. After some of his neighbors expressed concerns, he withdrew the application and instead successfully applied for a building permit to replace his carport with an attached garage.

¶ 3 On the Hood Canal side of the highway, and on the other side of the case, are Hal and Melanie Moore and Les and Betty Krueger (collectively the Moores). It appears the Moores became unhappy with the noise, exhaust, and traffic associated with SOS [1] and, by 2003, began investigating ways to have it stopped. After many unsuccessful complaints to various government agencies, the Moores sued Steven and Mary Lou Love, SOS, and Mason County (collectively the Loves) on a variety of grounds, including nuisance. [2] During a two day bench trial, both sides presented witnesses and evidence, largely on whether SOS's work created noise, fumes, or dangerous traffic conditions. Only a small part of the evidence presented went to whether the Loves were operating without a required permit. Most relevantly, Love testified that while many government agencies

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had inspected his business in [182 Wn.2d 154] response to complaints, many that were anonymous, no government agency had ever told him he was operating in violation of the law or without a required permit. After trial, Judge Sheldon found for the defense. Among other things, the trial judge found that even if the business was " in violation of the SMA, other Mason County or Washington State regulations or permits," the plaintiffs had not proved any damages and were not entitled to relief. Clerk's Papers at 242. The trial judge did not reach whether the Loves actually violated any laws in operating their business or failing to obtain any permits. Nor did the trial judge enter a finding that the plaintiffs failed to establish that the Loves violated any laws or failed to obtain any required permits, though the scant evidence presented to the trial judge by the plaintiffs supported such a finding.

¶ 4 The Court of Appeals largely affirmed but found the trial court erred in dismissing the Moores' nuisance per se claim. Moore v. Steve's Outboard Serv., noted at 179 Wn.App. 1013, 2014 WL 312290, at *9-10. The Court of Appeals concluded that if SOS was operating without required permits, it was a nuisance per se and remanded for a new trial on that issue. 2014 WL 312290, at *12. We granted review of the Loves' petition for ...

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