Snohomish County v. Rugg

• Decision Date: 09 December 2002
• Docket Number: No. 49522-4-I.,49522-4-I.
• Court: Washington Court of Appeals
• Parties: SNOHOMISH COUNTY, Respondent, v. Bruce RUGG and Jane Doe Rugg, husband and wife, and their marital community, Appellants.

61 P.3d 1184

115 Wash. App. 218

SNOHOMISH COUNTY, Respondent, v. Bruce RUGG and Jane Doe Rugg, husband and wife, and their marital community, Appellants.

No. 49522-4-I.

Court of Appeals of Washington, Division 1.

December 9, 2002.

Publication Ordered January 15, 2003.

Scott Missall, Maureen Mitchell, Seattle, WA, for Appellants.

Karen M. Jorgensen, Everett, WA, for Respondent.

KENNEDY, J.

Snohomish County brought suit to enforce its notice and order charging Mr. and Mrs. Bruce Rugg with illegal storage and/or basing of commercial vehicles on their residentially zoned property, and illegal grading without a permit. The trial court granted summary judgment to Snohomish County against the Ruggs, concluding that "there is only one result you could reach from this." We agree, and affirm the order granting summary judgment to the County.

FACTS

The Ruggs own a 5-acre parcel located at the end of a dead-end gravel road, in an area of Snohomish that is zoned "Rural-5 Acre." Snohomish County Code (SCC) § 18.12.030(3)(b). Snohomish County's zoning code does not allow commercial activities in rural-5 acre zones. SCC § 18.14.030; see also SCC § 18.32.040 (zoning matrix). Moreover, grading in wetland areas requires a permit. SCC § 17.05.110.

The Ruggs purchased the property in 1997. They have not obtained a building permit for a residence, but have made various improvements on the property with, they allege, the intention of building a permanent residence eventually. The improvements to the date of summary judgment consisted of a large metal storage/shop building, an access road to the back part of the property that includes a culvert to cross a creek that bisects the property, power, water, and telephone utility connections, a septic drainfield, and a temporary mobile home. In addition, the Ruggs cleared considerable brush and trees.¹ The Ruggs claim that pending the construction of a residence, they used the property only for recreational purposes, as a retreat for friends and family, to work on family-owned cars in the workshop, and for woodworking, construction planning, and other tasks related to the eventual residential development of the property.

The Ruggs own a construction company, BLR Development, Inc., through which they have access to a wide variety of large commercial equipment and vehicles, as well as to construction workers employed by the company. Snohomish County contends that the Ruggs illegally based their construction business on the property, and/or used it to store construction materials, vehicles, and equipment, in violation of the County's Zoning Code. The Ruggs allege that the BLR vehicles, employees and equipment that the neighbors reported to the County were on the property only for the purpose of performing personal construction services for the Ruggs, in preparation for the residence that will eventually be built there.

On three occasions in the fall of 1999, after receiving numerous complaints from neighbors, a County code-enforcement officer visited the Ruggs' property and saw BLR vehicles, heavy equipment, and construction materials being stored on the property.

The officer also saw that grading had been done for which no permit had been issued. As a result, on December 14, 1999, the officer issued a notice and order to Bruce and "Jane Doe" Rugg for violation of Snohomish County Code provisions prohibiting "storage and/or basing of commercial vehicles, equipment and materials in an area not zoned for this type of activity," and for "[a]llowing grading activity to occur without first obtaining the necessary permit(s)[.]" Clerk's Papers at 252; Exhibit A. The notice and order informed the Ruggs of the zoning and grading violations and ordered: (1) immediate termination of the illegal activities; (2) removal of all commercial vehicles, equipment, and materials by January 13, 2000; and (3) receipt of a valid grading permit by April 11, 2000. The notice and order also informed the Ruggs that failure to comply would result in civil penalties of $100 per day per violation, until the violations were corrected. Last, the notice and order contained instructions on how the Ruggs could appeal the notice and order, and their deadline for doing so.

The Ruggs contend that they decided, rather than to contest the notice and order, to simply comply with its directives. Thus, they did not appeal the notice and order and, as a result, the order became final on December 28, 1999. The County contends that the Ruggs simply ignored the notice and order and continued the violations unabated. For example, the Ruggs did not apply for a grading permit until July 11, 2000, three months past the compliance deadline contained in the notice and order. As they had been warned in the notice and order might be the case, the permit application required environmental review as well as provisions to remedy the damage to the environment caused by the unpermitted grading. Moreover, the neighbors continued to call the County on a frequent basis, reporting that the commercial activity on the property continued unabated.

On April 24, 2000, the County filed the instant lawsuit, alleging that the Ruggs had failed to comply with the order. On May 23, 2001, the County filed a summary judgment motion seeking a ruling that violations had occurred, enjoining the Ruggs from continuing violations, and requesting civil penalties. The County contended that the Ruggs had accrued $97,400 in civil penalties for failing to meet the compliance deadlines in the notice and order ($53,100 for the zoning violations and $44,300 for the unpermitted grading). But the County requested a penalty of only $20,000, without apportionment between the grading and zoning violations, in settlement of the civil penalties.

On June 28, 2001, the trial court heard the summary judgment motions. In its motion, the County relied upon the factual statements contained in the affidavits of two County code-enforcement officers and several of the Ruggs' neighbors. Three of the neighbors provided detailed logs enumerating the moving of heavy commercial vehicles to and from the property, including heavy equipment that was driven onto the property late at night, left there overnight, and driven out again the following morning.² One of the County code-enforcement officers recounted a previous contact with the Ruggs in which they were required to cease basing their construction business at their residence in Bothell, some 15 miles away from the property. The Ruggs did move their business base of operations from the Bothell residence. The County contends that they simply moved it from its previous illegal location in Bothell to another illegal location, that being their property in rural Snohomish County that is the subject of the current enforcement proceeding.

In response to the County's motion, and in support of their contention that they had complied with the notice and order by abating the violations, the Ruggs provided copies of permits issued by the County for construction of a septic drainfield, a culvert, and placement of a mobile home on their property, as well as affidavits from their family members and BLR employees stating that all their visits to the property were for purposes of personal construction, mandated grading violation reparation activities, recreation, or other personal use. The Ruggs did not contest the accuracy of the logs kept by the neighbors, however, and although they denied that they based their business on the property, they failed to explain where they in fact based their business, after moving it from their residential property in Bothell, if not at their property in rural Snohomish County.

On July 5, 2001, the trial court granted the County's summary judgment motion, concluding that there were no genuine issues of material fact as to the past and continuing violations, awarding $20,000 as settlement of the penalties for violations beyond the compliance deadlines, enjoining the Ruggs from continuing violations, and ordering abatement of the illegal grading. The court denied the County's request for a declaration of nuisance, however. At the hearing for the summary judgment motions, the court stated, "[T]here's only one result you could reach from this," and "I'm satisfied as I reviewed this particular record that it is an ongoing problem." Report of Proceedings at 25-26. The Ruggs' motion for reconsideration was denied. This appeal followed.

STANDARD OF REVIEW

In reviewing a summary judgment order, the appellate court evaluates the matter de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wash.2d 715, 853 P.2d 1373 (1993). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In its evaluation, a court is to consider all of the facts submitted, and all reasonable inferences that can be drawn from those facts, in the light most favorable to the nonmoving party, and may grant summary judgment only if reasonable people could reach but one conclusion. Ellis v. City of Seattle, 142 Wash.2d 450, 458, 13 P.3d 1065 (2000).

Affidavits submitted in support of, or in response to a motion for summary judgment must set forth such facts as would be admissible in evidence, must be made on personal knowledge, and must affirmatively show that the affiant is competent to testify as to his or her averments. CR 56(e); Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 753 P.2d 517 (1988). An affidavit does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion. Id. at 359, 753 P.2d 517. Likewise, ultimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact. Id. at 359-60, 753 P.2d 517; Kennedy v....