Kitsap County v. Kitsap Rifle and Revolver Club
| Decision Date | 21 November 2017 |
| Docket Number | 48781-1-II |
| Court | Washington Court of Appeals |
| Parties | 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; and JOHN DOES AND JANE ROES I-XX, inclusive, IN THE MATTER OF NUISANCE AND UNPERMITTED CONDITIONS LOCATED AT One 72-acre parcel identified by Kitsap County Tax Parcel ID No. 362501-4-002-1006 with street address 4900 Seabeck Highway NW, Bremerton, Washington, Appellants. |
UNPUBLISHED OPINION
Order Filed Date: February 6, 2018
Appellant filed a motion to extend time to file a motion for reconsideration, and a motion for reconsideration of this Court's November 21, 2017 unpublished opinion. After consideration, the motion to extend time is granted and Appellant's motion for reconsideration is accepted as filed.
The motion for reconsideration is denied, but the opinion is amended as follows. On page 4 the last sentence reads:
The trial court then issued a permanent injunction prohibiting the Club from operating its shooting range until it applied for, and the County issued, conditional use permits for the range. The trial court also issued a permanent injunction prohibiting the use of fully automatic firearms, weaponry greater than .30 caliber, and exploding targets and cannons and it restricted the Club's operating hours.
This entire paragraph shall be amended to read:
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 it restricted the Club's operating hours.
The footnote number 3 that follows this paragraph shall be amended to read:
The trial court issued this permanent injunction to abate the public nuisance conditions on the Club's shooting range. In Kitsap County v. Kitsap Rifle & Revolver Club (Kitsap Rifle), 184 Wn.App. 252, 302, 337 P.3d 328 (2014), the court determined that the trial court did not abuse its discretion in issuing the public nuisance injunction. The public nuisance injunction is not at issue in this appeal, and nothing in this opinion should be read to mean that the Club is not still enjoined by that injunction.
Kitsap Rifle and Revolver Club (Club) appeals the trial court's order on remand enjoining the Club from activities that constituted an impermissible expansion of its nonconforming use without first obtaining a conditional use permit and issuing a permanent injunction requiring the Club to obtain permits for site development activities. The Club argues that the trial court (1) abused its discretion by (a) denying its motion to reopen the trial record and (b) granting Kitsap County's (County) motion to quash discovery; (2) erred in ordering injunctive relief because the terms of the injunction are (a) overbroad and (b) vague; and (3) erred in entering declaratory judgment.
We vacate in part the trial court's injunction prohibiting "commercial, for-profit uses"; the "use of explosive devices including exploding targets"; the "use of high caliber weaponry greater than .30 caliber"; and "practical shooting uses, including organized competitions and practice." We remand the trial court's injunction in part with specific instructions to: fashion a remedy that reflects that the Club's allowance of commercial, for-profit businesses that provide firearms courses to primarily military personnel is an impermissible expansion of the Club's nonconforming use of its shooting range; fashion a remedy that implements its original permanent injunction prohibiting the use of "exploding targets and cannons;" clarify which weapons are prohibited because they create noise levels that constitute an impermissible expansion of the Club's nonconforming use; and clarify whether "practical use" includes only practical shooting practices and competitions or whether practical use includes other conduct. We also reverse in part and remand the trial court's declaratory judgment, but we otherwise affirm the trial court's Order Supplementing Judgment on Remand.[1]
The Club has operated a shooting range in Bremerton since its founding in 1926. In 1993, the Kitsap County Board of Commissioners notified the Club that the County considered the Club's use of the shooting range to be a lawfully established nonconforming use. During and before 1993, the Club operated a rifle and pistol range. Club members and members of the general public used small caliber weapons, and shooting occurred only occasionally and for short periods of time. The use of automatic weapons and rapid-fire shooting occurred infrequently. The U.S. Navy had conducted firearms training at the Club on at least one occasion, but for-profit businesses did not conduct training at the range.
Later the Club's use of the shooting range changed. The shooting range was frequently used for regularly scheduled practical shooting[2] practices and competitions, resulting in loud, rapid-fire shooting for several hours. For-profit businesses began conducting regular self-defense courses and active training exercises for active duty U.S. Navy personnel at the shooting range. The Club also allowed the use of exploding targets and cannons.
The commercial and military use of the Club, use of explosive devices and higher caliber weaponry, and practical shooting practices and competitions increased the noise level of the Club's shooting activities. Shooting sounds became "clearly audible in the down range neighborhoods, and frequently loud, disruptive, pervasive, and long in duration." Clerk's Papers (CP)atl91.
The Club also developed portions of its shooting range without obtaining any type of County permit as required by the County's code. The Club extensively cleared, graded, and excavated wooded areas to create "shooting bays, " removed trees and vegetation to create a rifle range replaced a water course that ran across the rifle range with culverts, extended earthen berms along the rifle range that required excavation and refilling, and cut steep slopes in several locations on the range. CP at 178.
In 2011, the County filed a complaint for an injunction, declaratory judgment, and nuisance abatement against the Club. The County sought declaratory judgment, declaring that the Club's changes in use of the shooting range were unlawful expansions of the Club's nonconforming use and requested an injunction enjoining the Club from operating its range.
The trial court conducted a lengthy bench trial and entered extensive findings of fact and conclusions of law. The trial court compared the Club's use of the shooting range from when the Club's nonconforming use was established in 1993 to the Club's present use of the range. The trial court concluded:
CP at 193-94. As a result, the trial court concluded that these actions were expansions of use. The trial court also concluded that the Club violated various County code provisions by failing to obtain site development and conditional use permits for its extensive property development work. The trial court determined that the Club's developments of the shooting range were illegal uses of the property.
The trial court then issued a permanent injunction prohibiting the Club from operating its shooting range until it applied for, and the County issued, conditional use permits for the range. The trial court also issued a permanent injunction prohibiting the use of fully automatic firearms, weaponry greater than .30 caliber, and exploding targets and cannons, and it restricted the Club's operating hours.[3]
The Club appealed the trial court's declaratory judgment and permanent injunctions to this court. Kitsap County v. Kitsap Rifle & Revolver Club (Kitsap Rifle), 184 Wn.App. 252, 266, 337 P.3d 328 (2014). While Kitsap Rifle was pending in this court, a commissioner of this court granted a stay of the trial court's injunction enjoining all shooting range activities on the Club's property. However, this court imposed conditions that prohibited the use of automatic weapons, cannons, and exploding targets at the shooting range.[4]
A. Expansions of Use
In Kitsap Rifle, the Club did not assign error to any of the trial court's findings of fact regarding the Club's expansions of its nonconforming use. 184 Wn.App. at 267. As a result, the trial court's unchallenged findings were considered verities on appeal. 184 Wn.App. at 267. The Kitsap Rifle court determined that the trial court's unchallenged findings supported its legal conclusions that the Club's commercial and military use of the shooting range and the frequent and drastically increased noise levels were expansions of its nonconforming use. 184 Wn.App. at 273-74.
Additionally the Kitsap Rifle court affirmed the trial court's rulings that the commercial use of the Club and its increased noise levels by allowing explosive devices, higher caliber weaponry, and practical shooting constituted an impermissible expansion of the Club's nonconforming use. 184 Wn.App. at 268. In concluding that the for-profit commercial and military use of the Club was an impermissible expansion, the court reasoned that "using the property to operate a commercial business primarily serving military personnel represented a...
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