Kitsap County v. Young

• Decision Date: 11 September 2018
• Docket Number: 50361-1-II
• Citation: 5 Wn.App.2d 1011
• Court: Washington Court of Appeals
• Parties: KITSAP COUNTY, a political subdivision of the State of Washington, Respondent, v. LORNA YOUNG a/k/a LORINA YOUNG and "JOHN DOE" YOUNG, husband and wife and the marital community composed thereof; and COLIN F. YOUNG and "JANE ROE" YOUNG, husband and wife and the marital community composed thereof, Appellants. And IN THE MATTER OF JUNK VEHICLES AND NUISANCE AND UNPERMITTED CONDITIONS LOCATED AT One 13.1-acre Parcel in the 25800 Block of Big Valley Road NE, Poulsbo, Washington (Kitsap County Tax ID No. 262701-4-010-2004).

5 Wn.App.2d 1011

KITSAP COUNTY, a political subdivision of the State of Washington, Respondent, v. LORNA YOUNG a/k/a LORINA YOUNG and "JOHN DOE" YOUNG, husband and wife and the marital community composed thereof; and COLIN F. YOUNG and "JANE ROE" YOUNG, husband and wife and the marital community composed thereof, Appellants. And IN THE MATTER OF JUNK VEHICLES AND NUISANCE AND UNPERMITTED CONDITIONS LOCATED AT One 13.1-acre Parcel in the 25800 Block of Big Valley Road NE, Poulsbo, Washington (Kitsap County Tax ID No. 262701-4-010-2004).

No. 50361-1-II

Court of Appeals of Washington, Division 2

September 11, 2018

UNPUBLISHED OPINION

Lee A.C.J.

Lorna and Colin Young appeal the superior court's denial of their CR41(b)(1) motion to dismiss, issuance of a preliminary injunction, and order granting summary judgment in favor of Kitsap County.^[1] The Youngs argue that the superior court(1) erred when it denied their CR41(b)(1) motion to dismiss, (2) abused its discretion when it issued the preliminary injunction, and (3) erred when it granted summary judgment in favor of the County.The Youngs' claims fail and we affirm.

FACTS

A.The Property

Lorna^[2] owns a piece of property in unincorporated Kitsap County.The property contained a number of vehicles and vehicle parts, owned by Colin, Lorna's son.The vehicles and vehicle parts were visible from the road and neighboring properties.The property did not have approval as a vehicle lot or for junk vehicle storage.

In 2011, Colin owned the property and quitclaimed the property to Lorna.The County subsequently brought an administrative action to abate a public nuisance against Lorna due to the conditions on the property.The hearing examiner found that two of the vehicles stored outside on the property were junk vehicles and that no mitigation agreement was in place.The hearing examiner also found that the conditions on the property constituted a public nuisance due to the storage of junk vehicles and use of the property as an unapproved vehicle lot.The hearing examiner ordered Colin to correct the violations.

B.County Complaint and Motion for Injunction

On May 17, 2012, the County filed a complaint for an injunction declaratory judgment, and abatement of nuisance against the Youngs.

The County sought to enjoin the Youngs from using the property until the property was brought in compliance with applicable regulations and no longer constituted a public nuisance.The injunction would require the Youngs to remove all vehicles parts, and solid wastes from the property and require the Youngs to remove all potentially hazardous and uncontained solid wastes from the property.The injunction would also authorize the County to erect a fence to prevent the unauthorized movement of vehicles, parts, or solid wastes on or off the property and to prohibit any person from placing a vehicle on the property unless allowed by law.And the Youngs would be enjoined "from further violating the Kitsap County Code[(KCC)] and applicable state law at the [p]roperty or as a result of unlicensed vehicle wrecking or other unlicensed and unauthorized business activities whether conducted at the [p]roperty in this case or any property subject to the [KCC]."Clerk's Papers(CP)at 14.

The County further sought a warrant of abatement to enter the property to take necessary action to abate the nuisance.

C.Motion for Preliminary Injunction

The County also filed a motion for a preliminary injunction.The County sought to enjoin the nuisance conditions and violations of the KCC resulting from the continued storage of the vehicles on the property.The County included declarations from Stephen Mount, the code compliance supervisor for the Kitsap County Department of Community Development(DCD), and Neil Wachter, a senior Kitsap County deputy prosecutor.Mount's declaration stated that the property was located in the rural protected zone of unincorporated Kitsap County and that no land use approvals had ever been issued for the property to operate as a vehicle storage lot.Mount participated in a flyover of the property during which he saw 60 or more vehicles stored outside on the property.Wachter's declaration included a quitclaim deed for the property from Colin to Lorna, showing that the property was located in Kitsap County and was assigned a single tax parcel number.

On May 24, the Youngs filed a response brief opposing the preliminary injunction arguing that there was no immediate threat to public safety and the scope of the proposed injunction was overbroad.And in his declaration in support of the motion, Colin claimed that the vehicles on the property were not junk vehicles.Colin also claimed that some of the vehicles on the property had been the target of vandalism and theft, with parts stolen from them making them inoperable, and that keys to several vehicles on the property had been stolen and not been recovered, and he needed the keys to move the vehicles.

On May 30, the superior court issued a preliminary injunction after holding a hearing on the matter.The superior court found that there were more than 60 vehicles on the property, a majority of which met the statutory definition of junk vehicle.Therefore, there was a likelihood of an imminent or actual injury based on the ongoing public nuisance condition.

On June 11, the Youngs filed a motion for reconsideration or clarification of the preliminary injunction.Colin's declaration in support of the motion challenged a number of the County's alleged factual assertions, including Mount's assertion on the result of a previous abatement action in Mason County Superior Court, Mount's assertion on the existence of prior findings that Colin was operating a wrecking yard at the property, and the County's assertion on the effect of a 2005Mason County Superior Court order.

On June 18, the superior court denied the Youngs' motion for reconsideration, but clarified and amended the preliminary injunction order.No further action was taken by either party in the case for over a year.

D.Notice of Dismissal and Summary Judgment Motion

On October 3, 2013, the superior court clerk filed a notice of dismissal for want of prosecution.The notice stated that no action of record had been taken in the past 12 months and that the case would be dismissed pursuant to CR41(b)(2), unless within 30 days a party takes action of record or files a status report.

On November 4, the County filed a motion for summary judgment.The motion sought a permanent injunction against the Youngs and an order directing the issuance of a warrant of abatement.

E. Youngs' Motion to Dismiss and Motion to Continue

On December 9, the Youngs filed a motion to dismiss pursuant to CR41(b)(1) for want of prosecution.The Youngs argued that more than a year had passed since the last action in the case was taken on June 18, 2012.

On December 23, the superior court denied the motion to dismiss because the preliminary injunction dissipated all joined issues and the time period for CR41(b)(1) did not commence again because no new issues were joined.

F.Amended Motion for Summary Judgment

On September 2, 2016, the County filed an amended motion for summary judgment with updated information on the conditions of the property.

In support of the motion, Mount declared that the property "continues to be populated with several dozen vehicles" and that, to the best of his knowledge, the Youngs had not obtained any permits for the property.CP at 542.On March 3, 2016, Mount visited a neighboring property and was allowed to view all the open fields of the Youngs' property.Mount compared photographs of the Youngs' property in 2016 to photos from 2011, 2012, and 2013, and he could see that many of the vehicles had not been moved for over four years.The declaration also included attached pictures taken from a neighboring property, which showed the presence of more than 20 vehicles on the property.Specifically, the pictures showed at least 10 vehicles on the property had not moved for at least five years, a vehicle had not moved for at least four years, and another vehicle had not moved in at least three years.

Mount also explained that the "vehicles on the [p]roperty [were] easily visible from both the neighboring properties and from NE Big Valley Road" and that the "vehicles [were] located outdoors, and are not behind any sort of screening or fencing."CPat 544.And "many of the vehicles [were] located within 250 feet of the property line."CPat 544.Mount also claimed that "neither Ms. Lorna Young nor [Colin] have . . . attempted to enter into an environmental mitigation agreement as required."CPat 544.

On October 7, Colin filed his answer and affirmative defenses to the County's original complaint.On October 10, the Youngs filed separate responses to the amended motion for summary judgment.Colin's declaration in support stated that Colin had reviewed Mount's declaration.Colin asserted that Mount presented no facts on the condition, value, and operability of the vehicles that could be confirmed.Colin also asserted that the property was screened by trees year round from adjacent properties and that rows of trees screened the vehicles on the property.And Colin claimed that Kitsap County parcel maps are often off by 10 feet.Colin also moved to strike evidence from consideration on summary judgment and moved to continue the summary judgment to allow him to conduct additional discovery.The superior court granted the motion to continue the hearing on summary judgment.

G.Summary Judgment Hearing and Order

On January 30, 2017, the superior court held a hearing on the County's amended motion for summary judgment.The superior court granted the County's motion for...