Kitsap County v. Kitsap Rifle and Revolver Club

• Citation: 2 Wn.App.2d 1021
• Decision Date: 30 January 2018
• Docket Number: 50011-6-II
• Court: Court of Appeals of Washington
• 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, Appellant. 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.

2 Wn.App.2d 1021

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, Appellant.

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.

No. 50011-6-II

Court of Appeals of Washington, Division 2

January 30, 2018

UNPUBLISHED OPINION

MAXA A.C.J.

The Kitsap Rifle and Revolver Club (Club) appeals the trial court's order of contempt, which enjoined the Club from operating a shooting facility on its property until it obtained a site development activity permit (SDAP) for prior site development work performed without a permit. The court found the Club in contempt for failing to comply with the court's supplemental order requiring the Club to apply for an SDAP for the prior development work within 180 days.

We hold that the trial court did not err in finding the Club in contempt because (1) the plain language of RCW 7.21.030(2) shows that the trial court was not required to make an express finding that the Club was able to comply with the court's supplemental order, (2) substantial evidence supports the trial court's implied finding that the Club was able to comply with the court's supplemental order (3) substantial evidence supports the trial court's finding that the Club intentionally failed to comply with the court's supplemental order, and (4) substantial evidence supports the trial court's finding that the Club failed to submit an SDAP application when it declined to pay the required application fee. However, we hold that the trial court erred in ruling that the Club was required to obtain an SDAP (rather than apply for one) in order to purge the contempt because actually obtaining a permit is beyond the Club's control.

Accordingly we affirm the trial court's contempt order except for the requirement that the Club obtain an SDAP in order to purge the contempt. We remand for the trial court to address the imposition of a proper purge condition.

FACTS

County's Lawsuit Against the Club

The Club has operated a shooting facility in the same general location in Bremerton since the 1920s. Kitsap County v Kitsap Rifle & Revolver Club, 184 Wn.App. 252, 262 337 P.3d 328 (2014).^[1] As of 1993, the Club's operation was a lawful, nonconforming use. Id. at 262-63.

Beginning in the 1990s, the Club engaged in extensive development of the property on which its shooting range was located. Id. at 264. This development included clearing and excavating wooded or semi-wooded areas, removing vegetation replacing a water course that ran through a wetland buffer with two 475-foot culverts, and excavating and moving soil. Id. The Club did not obtain permits for any of this work. Id.

In 2011, the County filed a complaint against the Club, alleging in part that the Club had engaged in unlawful development activities because it lacked the necessary permits. Id. at 265. After a bench trial, the trial court concluded that the Club's use of the property was illegal because it had not obtained any permits for its development work. Id. at 266. The court entered conclusions of law that this unpermitted use terminated the nonconforming use of the Club's property as a shooting range. Id. at 265-66. On that basis, the trial court issued a permanent injunction prohibiting the Club from using its property as a shooting range until it obtained the proper permits. Id. at 266.

On appeal, this court affirmed the trial court's ruling that the Club's development work violated County land use permitting requirements. Id. at 275. However, the court held that terminating the Club's nonconforming use status was not a proper remedy. Id. at 300-01. The court remanded for the trial court to determine the proper remedies for the Club's permitting violations. Id. at 301. Order Supplementing Judgment

On remand, the trial court entered an Order Supplementing Judgment on Remand. The supplemental order stated,

A permanent, mandatory injunction is hereby issued further requiring Defendant to apply for and obtain site development activity permitting to cure violations of KCC [Kitsap County Code] Titles 12 and 19 found to exist on the Property in the original Judgment. Defendant's application for permitting shall be submitted to Kitsap County within 180 days of the entry of this final order.

Clerk's Papers (CP) at 286. The court entered the order on February 5, 2016, with the 180-day period set to end on August 3.

The Club took some immediate steps to comply with the court's order. First, the Club engaged consultants to draft a scope of work, which listed the required activities for the Club to comply with the relevant permitting requirements. Preparing the scope of work cost $8, 000, and was completed on February 24. The scope of work estimated that the cost of preparing the Club's SDAP applications would exceed $158, 000 and that the cost of completing all required activities would be $398, 939.

Second, the Club submitted the scope of work to its insurer, Northland Insurance Company. Northland had been participating in the Club's defense of the County's lawsuit, but denied coverage for the costs associated with the scope of work. On July 28, the Club informed the County of the Club's dispute with Northland and the Club's intent to pursue avenues to receive coverage from Northland.

Motion for Contempt

The Club did not submit an SDAP application by the August 3 deadline. On August 18, the County filed a motion for contempt, requesting that the court prohibit the Club from operating a shooting range until it submitted an application for an SDAP.

In response, the Club submitted a declaration from Marcus Carter, its executive officer. Carter stated that the Club had been attempting to comply with the court's order by obtaining the scope of work and seeking money from its liability insurer to pay for the required work. He noted that the Club was a nonprofit organization with no endowment and stated that its 2016 end-of-month operating account balances never exceeded $11, 000. Carter stated, "The Club has never intended to disobey or violate the SDAP order. The Club has taken steps to comply, and it is still engaged in the difficult task of persuading or forcing its insurer to pay for the SDAP work. The Club wants to comply with the SDAP order, but has lacked the means to do so in the time frame ordered." CPat218.

The trial court held a hearing on August 26. The Club focused on the ongoing coverage dispute with its liability insurer, and argued that it was unable to comply with the court's order because of the expense. The court declined to find the Club in contempt at that time and provided 90 additional days for the Club to file the required SDAP application. The court scheduled a second hearing for December 2.

Carter submitted a declaration stating that on November 28 the Club had "attempted to submit an SDAP application to the County." CP at 330. Carter stated, "The Club prepared the application materials without the assistance of any professional consultant or engineer because it was unable to afford those types of services without funding from its insurer. The Club made a good faith effort to prepare the application using the application forms and instructions provided on the Kitsap County website." CP at 330-31. Carter also stated,

Any lack of compliance by the Club with the SDAP order in the supplemental judgment is not intentional and is in spite of the Club's good faith efforts to comply or obtain the financial means to do so. The Club wishes to hire qualified professionals to assist with its SDAP application, but without insurance coverage for the cost of those services that level of compliance with the SDAP order is not within the Club's power to perform. The Club intends to continue its attempts to work with both the County and its insurer to resolve all issues related to the SDAPs.

CPat331.

Before the second contempt hearing, the County submitted a declaration from Jeffrey Rowe, the deputy director of the Kitsap County Department of Community Development. According to Rowe, when Carter attempted to submit the Club's application he indicated that he was not prepared to pay the associated fee. Rowe informed Carter that the fees were a part of a complete application and that the County could not accept a permit application until the applicant paid the required fees. Carter stated that the Club was unable to pay the fees because it had no money. Carter then left without submitting the application. The record shows that the appropriate application fee was either $1, 512 or $3, 612, depending on the type of application required.

Rowe did not review at that time the application materials that Carter attempted to submit. Rowe later reviewed the application when Carter attached it to his declaration, and Rowe determined that the application was deficient in multiple respects.

Second Contempt Hearing

At the second contempt hearing, the County argued that the Club had not met its burden of establishing an inability to pay the expenses of the permit process. The County noted that the Club had presented only Carter's unsupported assertions and had not submitted bank statements, asset and liability information, or tax returns. The County also pointed out that there was no information about whether the Club had made efforts to obtain grant funding or engage in fundraising to pay for the necessary expenses.

The Club emphasized that it was not trying to avoid complying with the court's order, but stated that it lacked the ability...