Moore v. Steve's Outboard Service

Decision Date28 January 2014
Docket Number44377 -5 -II,41557-7-II
CourtCourt of Appeals of Washington
PartiesHAL MOORE and MELANIE MOORE, husband and wife; and LESTER KRUEGER and BETTY KRUEGER, husband and wife, Appellants, v. STEVE'S OUTBOARD SERVICE, a sole proprietorship operating in Washington; STEVEN LOVE and MARY LOU LOVE, husband and wife and the marital property together composed; and MASON COUNTY, Respondents.

UNPUBLISHED OPINION

WORSWICK, C.J.

In this consolidated appeal, Hal and Melanie Moore and Lester and Betty Krueger (collectively, the Moores) appeal two trial court orders that (1) dismissed their claims against Steven and Mary Lou Love and Steve's Outboard Service (SOS), (2) awarded attorney fees to the Loves, and (3) refused to consider additional evidence after we remanded the Moores' first appeal to the trial court to enter more complete findings of fact and conclusions of law. The Moores had sued SOS and the Loves, asserting claims of nuisance in fact, nuisance per se, and violations of the Shoreline Management Act (SMA).[1] The Moores now argue that the trial court erred by (1) refusing to consider additional evidence after remand, (2) entering findings of fact unsupported by substantial evidence, (3) concluding that the Moores showed no nuisance in fact, (4) concluding that the Moores showed no nuisance per se, and (5) granting attorney fees. We reverse the trial court's dismissal of the Moores' nuisance per se claim and its attorney fee award and remand for further proceedings. We affirm the trial court's dismissal of the Moores' other claims.

FACTS

Steve's Outboard Service (SOS) is an outboard motor repair sole proprietorship that Steven Love and Mary Lou Love have owned since 1994, and that Steven[2] has operated from their home along State Route (SR) 106, on the south shore of Hood Canal in Mason County. In 2006, the Moores sued SOS and the Loves alleging that SOS's operations constituted a nuisance and a violation of the Shoreline Management Act.[3]

A. The Moores' Case at Trial

The Moores presented two witnesses during this bench trial: Betty Krueger and Melanie Moore.

1. Betty Krueger

Krueger testified that SOS affected her by generating smoke, fumes and noise from revving engines. Krueger testified that smoke and fumes from SOS reached her property. She also testified that SOS caused traffic safety hazards because customers and delivery vehicles used the SR 106 right-of-way, although she admitted that no serious accidents had occurred on SR 106. Krueger testified that SOS made periodic noise when revving boat engines, and operating a tractor with a beeping device to bring boats onto the Loves' property. Krueger also testified that she no longer used a patio on the side of her house that faced SR 106 because of the noise SOS generated. Krueger admitted that her caretaker frequently used a gas powered leaf blower and pressure washer that made noise. Krueger testified that SOS's customers and delivery trucks used the SR 106 right-of-way, potentially impeding traffic and causing safety concerns.

The Moores submitted photographs showing several plumes or hazes of smoke, purportedly from SOS. Krueger testified that she saw such smoke in the spring, summer, and fall, and that she periodically smelled exhaust fumes from the smoke. She further testified that she was not seeking damages, but only wanted SOS's operation stopped.

2. Melanie Moore

Melanie Moore owned a home on SR 106, across the street from the Loves' property, where she lived during the summer. Although Moore provided testimony regarding the frequency and volume of the noise that SOS produced; the trial court found that this testimony was not credible, and we defer to that determination of credibility.

Moore testified that although she had heard the beeping of SOS's tractor, Steven had since disengaged the beeper. Moore testified that on windless summer days she could see smoke and smell fumes SOS generated. Moore testified that smoke and fumes occasionally presented a problem on her property.

Moore testified to many concerns she had regarding SOS's use of SR 106 and this roadside. And she testified that she wanted only to prevent SOS from operating out of the Loves' property.

3. Evidence Regarding Permitting

Because the Moores claimed nuisance per se, they submitted documentary evidence regarding various permits that Steven may or may not have obtained. This included a shoreline permit application that Steven filed in 1994 to build a 30-by 45-foot metal building on his property, a letter from Steven withdrawing this application, and a letter from Mason County acknowledging Steven's withdrawal letter. The Moores also submitted building permit applications filed in 1994 that requested permits to replace a carport and to remodel a storage shed.

The Moores submitted a report from Mason County entitled "Case Activity Listing." Ex. 7. The Case Activity Listing listed the permits that Mason County employees believed the county had granted to Steven over the years, and briefly described those permits. This Case Activity Listing showed that the County received and investigated a complaint about SOS's operation in 2003. Additionally, the Case Activity Listing stated that Mason County had previously granted Steven two building permits for a single metal shop. However, Steven had withdrawn his metal shop permit applications while they were pending.

The Case Activity Listing also stated that subsequent to granting the metal shop building permits, Mason County granted Steven both a 1994 carport permit and a permit for Steven to build an addition to the storage shed. Mason County granted these two permits for private use under the old Uniform Building Code.

The Case Activity Listing stated that the carport permit revealed that the carport had replaced another structure. However, because Mason County had not granted the two older metal shop permits, it could not find physical copies of these permits. Nonetheless, Mason County assumed that the planner who had reviewed the carport permit application approved the carport permit on grounds that the structure was of equal or lesser intensity than the permitted metal shop it had replaced. The Case Activity Listing stated that SOS could continue operating as an existing cottage industry, because SOS's operation had not substantially changed since its start in 1994.

B. The Loves' Case at Trial
1. The Loves' Neighbors

The Loves presented the testimony of three neighbors who lived near the Loves' property: James David, William Jacobs, and Elliot Gordon.

David testified that he generally did not use the SR 106 side of his property due to the road noise. He testified that SOS only ran engines for "minutes" and that SOS's operations bothered neither David nor his guests. 1 Verbatim Report of Proceedings (VRP) at 125. David testified that motorcycles on SR 106 produced the loudest source of noise, while SOS was about as loud as the Kruegers' leaf blower. He further testified that SOS produced no fumes.

Jacobs testified that the noise, fumes, or smoke from SOS had never bothered him. Jacobs confirmed that the Kruegers used a leaf blower daily when leaves were falling. Jacobs had not observed any traffic safety problems at SOS.

Gordon testified that SOS produced no odors or fumes. Gordon testified that just about everyone parked their boats on the right-of-way. Gordon testified that he knew of no traffic safety problems caused by SOS, and that Steven used safety precautions when moving boats into the Loves' shop. Gordon also testified that SOS's engine noises did not bother him, and that motorcycles on SR 106 bothered him more.

2. SOS's Customers

The Loves presented the testimony of several of SOS's customers who had their outboard motors serviced at SOS. These customers uniformly testified that Steven was highly safety conscious, never caused traffic problems, had a procedure to quickly remove boats from the road, and used appointments to ensure that SOS was never overwhelmed with boats. Two customers testified that SR 106 regularly had numerous boats, delivery trucks, and other vehicles parked on its shoulder. Two customers testified to their ability to talk to Steven in his shop with the motors running.

3. Steven Love

Steven testified on his own behalf. Steven testified that he worked on motors usually between 10:30 AM and 5:00 PM, that he typically ran motors for 15 minutes per day at the most, and that he ran the motors on idle 95 per cent of that time. He also testified that he generally ran motors on open throttle for no more than 30 seconds.

Regarding smoke production, Steven testified that while he used to do a "fogging" procedure that produced a lot of smoke, he had not done it since 2000. 2 VRP at 323-24. He testified that two photos showing smoke at his property occurred before 2001. Steven also testified that while he did not do anything in his shop that caused excessive smoke, he sometimes used a wood stove that made smoke.

Regarding the permitting of the structures on his property, Steven testified that he replaced a carport attached to his house with a larger carport. Steven testified that as far as he knew, his contractor had obtained the proper permits for the carport. Steven also testified that he had no awareness of any shoreline permit for SOS.[4]

Steven testified that no one informed him that SOS was out of compliance with any law. Steven further admitted that his customers used the SR 106 right-of-way when delivering boats, but stated that he did not require them to do so. Steven testified that he stored boats on his property behind his shop or in his carports.

C. The Trial Court's Decision

The trial court issued findings of fact and conclusions of law. The trial court ...

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