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Kitsap County v. Kitsap Rifle and Revolver Club

Court of Appeals of Washington, Division 2

November 21, 2017

KITSAP COUNTY, a political subdivision of the State of Washington, Respondent,
v.
KITSAP RIFLE AND REVOLVER CLUB, a not-for-profit corporation registered in the State of Washington, Appellant. IN THE MATTER OF THE UNPERMITTED SHOOTFNG FACILITY locatedat the 72-acre parcel at Seabeck Highway NW, Bremerton, Washington, viz Kitsap County Tax Parcel ID No. 362501-4-002-1006.

          MAXA, J.

         Chapter 10.25 of the Kitsap County Code (KCC) requires all shooting facilities to obtain an operating permit. The Kitsap Rifle and Revolver Club (Club), which operates a shooting facility in Bremerton, refused to apply for a permit. The County filed a complaint against the Club, seeking a declaratory judgment that KCC 10.25[1] was a valid ordinance that was enforceable against the Club. The trial court granted summary judgment in favor of the County, ailing that KCC 10.25 was enforceable against the Club and that the Club was required to obtain an operating permit for its shooting facility.

         The Club appeals the trial court's summary judgment order, arguing that KCC 10.25 is invalid or unenforceable on various grounds. In the published portion of this opinion, we hold that (1) RCW 9.41.290, which provides that the State has preempted the entire field of "firearms regulation, " does not preempt KCC 10.25 because the challenged portion of that ordinance is not a firearms regulation; (2) KCC 10.25 falls within the exception to preemption in RCW 9.41.300(2)(a), which allows ordinances restricting the discharge of firearms where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized; and (3) KCC 10.25 does not infringe on the right to bear arms under the Second Amendment to the United States Constitution or article I, section 24 of the Washington Constitution. In the unpublished portion of the opinion, we reject the Club's additional challenges to KCC 10.25.

         Accordingly, we affirm the trial court's summary judgment order and its ruling that KCC 10.25 is enforceable against the Club.

         FACTS

         Previous Litigation

         The Club has operated a shooting facility in the same general location in Bremerton since 1926. In 2011, the County filed suit against the Club, alleging that the Club had impermissibly expanded its nonconforming use as a shooting range, engaged in unlawful development activities, and conducted activities that constituted a noise and public safety nuisance. Kitsap County v. Kitsap Rifle & Revolver Club, 184 Wn.App. 252, 265, 337 P.3d 328 (2014), review denied, 183 Wn.2d 1008 (2015).

         After a bench trial, the trial court ruled that (1) the Club's activities constituted an unlawful expansion of the existing nonconforming use, (2) the Club's use of the property was illegal because it had failed to obtain required permits for the development work, and (3) the Club's activities constituted a nuisance because of noise, safety, and unpermitted land use problems. Id. at 266. The trial court issued a permanent injunction prohibiting use of the Club's property as a shooting range until the County issued a conditional use permit. Id.

         The Club appealed to this court. Id. at 266. This court affirmed the trial court on almost all issues, including the finding of a public nuisance based on excessive noise and unsafe conditions. Id. at 303. However, the court reversed the trial court's ruling that the remedy for the Club's conduct was termination of its nonconforming use status and remanded for the trial court to determine the appropriate remedy. Id. at 262, 303-04. This court issued its opinion on October 28, 2014. Id. at 252.

         Adoption of KCC 10.25

         In September 2014, the County adopted Ordinance No. 515-2014. The ordinance added a new chapter to the KCC entitled "Firearms Discharge, " which was codified as chapter 10.25 KCC. The effective date was December 22, 2014.

         KCC 10.25 required all existing and proposed shooting facilities to obtain an operating permit and provided that the failure to obtain a permit would result in closure of the facility. KCC 10.25.090(1)-(2). In addition, the ordinance required shooting facilities to meet detailed standards. KCC 10.25.090(4).

         KCC 10.25.090(2) required all existing shooting facilities to apply for an operating permit within 90 days after the December 22 effective date. The Club did not submit an application for an operating permit by the deadline and informed the County that it did not intend to apply for a permit. The Club asserted the position that KCC 10.25 was a zoning/land use ordinance that did not apply to its existing shooting facility, which had vested nonconforming use rights.

         Current Litigation

         On March 31, 2015, the County filed a complaint for declaratory and injunctive relief against the Club to enforce KCC 10.25. The County sought a declaration that the Club was in violation of KCC 10.25 and an injunction to prevent the Club from operating its shooting facility until it received an operating permit. The trial court issued a preliminary injunction enjoining the Club from operating its shooting facility until it submitted a complete application for an operating permit in compliance with KCC 10.25.

         On March 16, 2016, the Club filed, under protest, an application for an operating permit under KCC 10.25. The next day, the Club filed a motion to dissolve the preliminary injunction. The trial court granted the motion and dissolved the preliminary injunction on April 7.

         The trial court subsequently granted summary judgment in favor of the County. The court ruled that RCW 9.41.290 did not preempt KCC 10.25 because the ordinance was not a firearms regulation and because the preemption exclusion of RCW 9.41.300(2)(a) applied. In a footnote, the court summarily rejected the Club's argument that KCC 10.25 violated the right to bear arms. The court concluded that KCC 10.25 was enforceable against the Club's shooting facility and that operation of the facility without an operating permit was a violation of KCC 10.25.

         The Club appeals the trial court's summary judgment order.

         ANALYSIS

         A. Standard of Review

         We review a trial court's order granting summary judgment de novo. Lyons v. U.S. Bank Nat'lAss 'n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

         The interpretation and application of a statute is a matter of law that we also review de novo. Blue DiamondGrp., Inc. v. KB Seattle 1, Inc., 163 Wn.App. 449, 453-54, 266 P.3d 881 (2011).

         B. Provisions of KCC 10.25

         Chapter 10.25 KCC, which is titled "Firearms Discharge, " contains two articles. Article 1 is titled "No-Shooting Areas." The provisions in that article prohibit the discharge of firearms in certain areas, but they also provide an exception for the discharge of firearms on a shooting range complying with Article 2. KCC 10.25.020, 030. Article 2 is titled "Shooting Ranges, " and requires that all existing and proposed shooting facilities obtain an operating permit and provides that the failure to obtain a permit would result in closure of the facility. KCC 10.25.090(1)-(2). The Club challenges only the provisions of Article 2, which encompasses KCC 10.25.060 -10.25.140.

         KCC 10.25.060 provides that the purpose of KCC 10.25 "is to provide for and promote the safety of the general public by establishing a permitting procedure and rules for the development and operation of shooting range facilities" and that the adopted standards "are intended to protect and safeguard participants, spectators, neighboring properties and the public."

         KCC 10.25.090(1) states that shooting facilities must be authorized and operated in accordance with a County-issued operating permit. Under the permitting scheme, no existing or proposed shooting facility is allowed to operate without an operating permit issued pursuant to KCC 10.25. KCC 10.25.090(1). The owner or operator of a shooting facility must apply for and obtain an operating permit. KCC 10.25.090(2). Failure to obtain a permit will result in closure of the facility until a permit is issued. KCC 10.25.090(1).

         To receive an operating permit, shooting facilities are required to submit an application that includes (1) the facility's safety plan, (2) the shooting facility layout and design, and (3) an expert evaluation of the safety plan and facility design performed either by a National Rifle Association (NRA) shooting range advisor or an engineer with expertise in the design of shooting ranges. KCC 10.25.090(5). In reviewing a permit application, the County is guided by the NRA's "Range Source Book." KCC 10.25.090(3).

         KCC 10.25.090(4) outlines the specific standards for shooting facilities, which are meant to ensure containment of projectiles and to minimize noise disturbances. The standards include general requirements for containment structures. They also include requirements that shooting facilities have a safety officer present when open to the public, but at times when the facility is not open to the public, a staff member trained in the range's safety plan is sufficient. KCC 10.25.090(4)(d). Finally, KCC 10.25 provides time and frequency limits for certain uses and activities. KCC 10.25.090(4)(f), (g), (1).

         C. Applicability of State Law Preemption

         The Club argues that KCC 10.25 is unenforceable because it is preempted under RCW 9.41.290, which provides for state law preemption of firearms regulations. We hold that (1) RCW 9.41.290 does not apply here because KCC 10.25 is not a firearms regulation, and (2) even if RCW 9.41.290 did apply, KCC 10.25 falls within the exception to preemption in RCW 9.41.300(2)(a) for "where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized."[2]

         1. Legal Principles

         a. Police Power Authority of Local Governments

         Under article XI, section 11 of the Washington Constitution, a local government has authority to "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Similarly, RCW 36.32.120(7) authorizes counties to "[m]ake and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law." Local governments have "considerable latitude in exercising police powers, " and a regulation is reasonable "if it promotes public safety, health or welfare and bears a reasonable and substantial relation to accomplishing the purpose pursued." City of Seattle v. Montana, 129 Wn.2d 583, 591-92, 919 P.2d 1218 (1996).

         However, a local ordinance will be deemed to conflict with state law when the legislature has stated its intent to preempt the field on a particular subject. See State v. Kirwin, 165 Wn.2d 818, 826, 203 P.3d 1044 (2009). In that situation, local ordinances on the subject are preempted and rendered invalid. Id. We must interpret an express preemption clause narrowly but fairly. See Nw. Wholesale, Inc. v. Pac Organic Fruit, LLC, 184 Wn.2d 176, 184, 357 P.3d 650 (2015) (addressing federal preemption of state law), cert, denied, 136 S.Ct. 1453 (2016).

         b. Preemption of Firearms Regulations

         RCW 9.41.290 expressly provides that state law preempts all local firearms regulations, including those involving the discharge of firearms:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

(Emphasis added).

         As noted in RCW 9.41.290, certain exceptions to preemption are provided in RCW 9.41.300. One exception applies to the discharge of firearms:

(2) Cities, towns, counties, and other municipalities may enact laws and ordinances:
(a) Restricting the discharge of firearms in any portion of their respective jurisdictions where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. Such laws and ordinances shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution to bear arms in defense of self or others.

RCW 9.41.300(2)(a) (emphasis added).

         c. Statutory Interpretation

         Whether a statute has preemptive effect is a question of law that we review de novo. Law son v. City o/Pasco, 168 Wn.2d 675, 678, 230 P.3d 1038 (2010). The purpose of statutory interpretation is to determine and give effect to the legislature's intent. Gray v. Suttell & Assocs., 181 Wn.2d 329, 339, 334 P.3d 14 (2014). To determine legislative intent, we first look to the plain language of the statute, considering the text of the provision, the context of the statute, related provisions, and the statutory scheme as a whole. Id.

         A statute is unambiguous if the plain language of the statute is susceptible to only one reasonable interpretation. Id. When a statute is unambiguous, we apply the statute's plain meaning as an expression of legislative intent without considering other sources of such intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014).

         2. Preemption Under RCW 9.41.290

         The Club argues that RCW 9.41.290, which provides that the state has preempted "the entire field of firearms regulation, " preempts KCC 10.25. We disagree and hold that KCC ...


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