ruling granting stay on conditions

8/2/2019 Ruling granting stay on conditions

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONDIVISION II

KITSAP COUNTY, a politicalsubdivision of the State of Washington,

Respondent/Cross -Appellant,

v.

KITSAP RIFLE AND REVOLVERCLUB, a not -or - rofit corporationregistered in the State of Washington,and JOHN DOES and JANE ROES I-XX, inclusive,

Appellants /Cross -Respondents,and

IN THE MATTER OF NUISANCE ANDUNPERMITTED CONDITIONSLOCATED AT One 72 -acre parcelidentified by Kitsap County T ax P arc elID No. 362501 -4-002 -1006 with streetaddress 4900 Seabeck Highway NW,Bremerton, Washington.

Consol Nos. 43076 -2 - 143243 -9 - 1

RULING GRANTING STAY ONCONDITIONS

Kitsap Rifle andRevolver Club ( KRRC) moves to stay the tr ial court's order thatconcuded KRRC's operation of a shooting range ( 1 ) was no longer a legal non-

conforming useand (2) constituted a pubicnusance. The trial court's order enjoined

KRRC from operating the shooting range unti l it ha d obtained a conditional use permitfrom Kitsap County and permanently enoned certanactivities at the shooting range.


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Concluding that KRRC ha s demonstrated that it is entitled to a stay upon conditions, thiscourt grants its motion.

KRRC began operating a shooting rangein 1926. The active area of the range isan eghtacreportionofa 72 acreparce. Until 2009, KRRC leased the land for the rangefrom the State ofWashington. In 2009, after the State transferred ownership of the lan d toKitsap County, the County conveyed ownership to KRRC. According to the County ,K RRC b egan expanding the operations of th e range in 1998 and by 2003 was host ingcommercial small arms training exercises.

In 2010, Kitsap County commenced an action for in junction, declaratory judgmentand abatement of nusance. It alleged that while KRRC s use of the property as ashooting range had been a legal non -conforming use in the past, KRRC' s expansion of theoperationsof the shooting rangehad terminated that legal non -conforming use. It also

alleged that the op era tio n of the s hoo tin g range consti tuted a public nuisance in thatshooting occurredfrom 7: 00 A.M. until 10:00 P. M., that automatic weapons were often fired,

that cannons and other explosive devices were detonated, and that stray or ricochetedammuntioncoudstrikehomes adjoining the property. The County sought to abate thenusanceand to have the shooting rangedeclared a non -conforming use. It asked the

cour t to enjoin operation of the shooting range unti l it obtained a conditional use permitand to permanently enjoin certain activities.

KRRC responded to the action by noting that no evidence had been presented ofstray ammunition injuring anyone on the adjoining properties or of striking anything on

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those properties. After a lengthy trial, the court found that KRRC's operation of theshooting range const i tuted a nuisance in the following regards:

21. The failure of [KRRC] to place reasonable restrictions on thehours of operation, caiber of weapons alowed to be used, the use ofexploding targets and cannons, th e hours and frequency with whichpractica shooting" practices and competitions are held and the use of

automatic weapons, as well as the failure of [ KRRC] to develop its rangewith engineering and physical features to p re ve n t e sca p e o f b ulle ts fro m theProperty's shooting areas despite the Property's proximity to numerousresidential properties and civil ian populations and the ongoing risk of bulletsescaping the Property to in ju re persons and property, is each an unlawfuland abatable common law nuisance.

Mot. fo r Stay, Ex. 1 at 27 ( Findings of Fact and Conclusions of Law).The court also found that KRRC s expansions of the use of the shooting range to

include commerca smal arms training, use of automatic weapons and professionacompetitions ha d terminated the legal nonconforming use status of the shooting range.The court en jo ined any operation of the shooting range until KRRC ha d obtained acondtiona usepermt for a privaterecreationa facility. It also permanently enjoined thefollowing usesof the property: ( a) useof fully automaticfirearms, ( b) use of rifles withcaibers greater than . 30, ( c) useof exploding targets and cannons, and (d) shootingbefore 9:00 A. M. or after 7: 00 P. M.

KRRC seeksa stay of the trial courts orderpending its appea. First, it contends

that it is entitledto a stay underRAP 8. 1 ( b)( 2), which provides that "a party may obtain astay of enforcement of a dec is ion a f fec ting rights to possession, ownership or use of realproperty ... by filing in the trial court a supersedeasbond orcash ...." It contends thatthe trial courts orderaffects its rightsto useits property, soit is entitledto a stay. Henry v.

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Bitar, 102 Wn. App. 137, 139 -40, 5 P. 3d 1277 ( 2000), revew denied, 142 Wn.2d 10292001). Kitsap County responds that RAP 8. 1 ( b)( 2) is not applicable because the trial

court g ran ted injunctive relief, making RAP 8. 1 ( b)( 3) applicable instead.To the extent the trial court' s order found that KRRC s operation of the shooting

range no longer constituted a legal nonconforming use of its property, the order af fectedKRRC' s right to us e of its real property and entitled it to a stay o f tha t p ortio n of the order,provided that it f i led a supersedeas bond, cash or alternate security approved by the trialcourt. But KRRC did not file sucha bond, cashoraternatesecurity. While the propertyitself may serveas security if it has vaue, under RAP 8. 1 ( c)(2), the parties dispute

whether the property has an assessed vaue of $71, 000 or whether the property isvaueessbecause of lead contamnation. KRRC ha s n ot shown that it is entitled to a stayunder RAP 8. 1 ( b)( 2).

KRRC alternately seeks a stay underRAP 8. 1 ( b)( 3). Under that rule, it must firstdemonstrate that debatable issues arepresentedon appea." RAP 8. 1 ( b)( 3)( i) . If it does,

the n this c ou rt m us t consider the injury that KRRC would suffer if a stay is not grantedaganst the injuries that Kitsap County woudsuffer if a stay is granted. RAP 8. 1 ( b)( 3)( ii).If the fruits of an appeal would be totally destroyed in the absence of a stay, then a stayshoudbe granted, uness the appea is totally devoid ofmerit. Boeing Co. v . SierracinCorp. , 43 Wn. App. 288, 291, 716 P.2d 956 (1986), revd on other grounds, 108 Wn.2d 381987).

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KRRC argues that there are debatable issues about the trial court's findings of ariskofharm to the adjoining properties,among others. And it argues that without a stay ofthe trial court's order, it will suffer dire financial consequences that could lead to cessationof KRRC' s activitiesand to vandaismanddegradation of the property. Kitsap Countyresponds that the trial court's extensive findings of fact and conclusions of la w conclusivelyresolve all of the i ssues in its favor, so KRRC does not demonstrate any debatable i ssuesonappea. And it responds that a stay of the trial court's order would again expose theadjoining property owners to the risk of harm and to the nuisances created by the shootingrange.

Given that Kitsap County d id not commence this enforcement action unti l 2010, andthat the increased operations of the shooting range ha d been occurring since at least2003, Kitsap County does not show that the risk of harm to the adjoining p ro p erty o wn e rsis so great that it overcomes the harm that will b e fa ll K R RC if all shooting range operationsareenonedwhlethis appea is pending. KRRC has shown that the harm it will suffer in

the absence of a stay is greater than the harm that Kitsap County will suffer from theimposition ofa stay. Therefore, KRRC has demonstrated that it is entitled to a stay underRAP 8. 1 ( b)( 3).

However, in granting a stay, this court must stay the trial court's order "upon suchterms as arejust." RAP 8. 1 ( b)( 3). Kitsap County, as a protector of the adjoining propertyowners' interests in peaceful enjoyment of their properties, has a valid concern about theamount of nose that the shooting rangehad been creating. In order to address that

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concern, while stil l allowing KRRC some ability to operate, this court conditions its stay ofthe trial courts orderasfollows. The injunction against all operation of a shooting rangeon the KRRC property, unti l such time as it receives a conditional use permit, is stayedpending a decision in this appea. However, KRRC' s operation of the shooting range issubject to the following conditions:

1 ) R an ge s afe ty o ffic ers must be present at all time that shoot ing isoccurring. Video recordings must be made while shooting is occurring.

2) KRRC must allow officials from Kitsap County access to theproperty to montorcompiancewth these condtions. It must allow thoseofficials access to thevdeo recordings.

3) Shooting must be restricted to between 8 : 00 A . M . to 8: 00 P . M .4) No fully au toma tic weapons may be fired.5) No cannons may be f i red, except on the Fourth of July, and no

exploding targets may be used.It is herebyORDERED that KRRC' s motion fo r a stay of the trial court' s order is GRANTED

underRAP 8. 1 ( b)( 3), subject to the above conditions.

DATED this p?3=day of

cc: Brian D. ChenowethNeil R. WachterJennie ChristensenHon. Susan Serko

2012.

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Eric B. SchmidtCourt Commissioner

ruling granting stay on conditions

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