Kitsap County, V Kitsap Rifle And Revolver Club ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
November 21, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KITSAP COUNTY, a political subdivision of No. 48781-1-II
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,
Appellants.
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County Tax Parcel ID No. 362501-4-002-1006 UNPUBLISHED OPINION
with street address 4900 Seabeck Highway
NW, Bremerton, Washington,
WORSWICK, J. — Kitsap Rifle and Revolver Club (Club) appeals the trial court’s order on
remand enjoining the Club from activities that constituted an impermissible expansion of its
nonconforming use without first obtaining a conditional use permit and issuing a permanent
injunction requiring the Club to obtain permits for site development activities. The Club argues
that the trial court (1) abused its discretion by (a) denying its motion to reopen the trial record
and (b) granting Kitsap County’s (County) motion to quash discovery; (2) erred in ordering
injunctive relief because the terms of the injunction are (a) overbroad and (b) vague; and (3)
erred in entering declaratory judgment.
No. 48781-1-II
We vacate in part the trial court’s injunction prohibiting “commercial, for-profit uses”;
the “use of explosive devices including exploding targets”; the “use of high caliber weaponry
greater than .30 caliber”; and “practical shooting uses, including organized competitions and
practice.” We remand the trial court’s injunction in part with specific instructions to:
fashion a remedy that reflects that the Club’s allowance of commercial, for-profit businesses that
provide firearms courses to primarily military personnel is an impermissible expansion of the
Club’s nonconforming use of its shooting range; fashion a remedy that implements its original
permanent injunction prohibiting the use of “exploding targets and cannons;” clarify which
weapons are prohibited because they create noise levels that constitute an impermissible
expansion of the Club’s nonconforming use; and clarify whether “practical use” includes only
practical shooting practices and competitions or whether practical use includes other conduct.
We also reverse in part and remand the trial court’s declaratory judgment, but we otherwise
affirm the trial court’s Order Supplementing Judgment on Remand.1
FACTS
I. BACKGROUND
The Club has operated a shooting range in Bremerton since its founding in 1926. In
1993, the Kitsap County Board of Commissioners notified the Club that the County considered
the Club’s use of the shooting range to be a lawfully established nonconforming use. During and
before 1993, the Club operated a rifle and pistol range. Club members and members of the
general public used small caliber weapons, and shooting occurred only occasionally and for short
1
Nothing in this opinion restricts the County from proceeding under its new ordinance, Kitsap
County Code 10.25.
2
No. 48781-1-II
periods of time. The use of automatic weapons and rapid-fire shooting occurred infrequently.
The US Navy had conducted firearms training at the Club on at least one occasion, but for-profit
businesses did not conduct training at the range.
Later, the Club’s use of the shooting range changed. The shooting range was frequently
used for regularly scheduled practical shooting2 practices and competitions, resulting in loud,
rapid-fire shooting for several hours. For-profit businesses began conducting regular self-
defense courses and active training exercises for active duty US Navy personnel at the shooting
range. The Club also allowed the use of exploding targets and cannons.
The commercial and military use of the Club, use of explosive devices and higher caliber
weaponry, and practical shooting practices and competitions increased the noise level of the
Club’s shooting activities. Shooting sounds became “clearly audible in the down range
neighborhoods, and frequently loud, disruptive, pervasive, and long in duration.” Clerk’s Papers
(CP) at 191.
The Club also developed portions of its shooting range without obtaining any type of
County permit as required by the County’s code. The Club extensively cleared, graded, and
excavated wooded areas to create “shooting bays,” removed trees and vegetation to create a rifle
range, replaced a water course that ran across the rifle range with culverts, extended earthen
berms along the rifle range that required excavation and refilling, and cut steep slopes in several
locations on the range. CP at 178.
2
In its original order, the trial court defined “practical shooting” as follows: “The Property is
frequently used for regularly scheduled practical shooting practices and competitions, which use
the shooting bays for rapid-fire shooting in multiple directions.” CP at 188.
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No. 48781-1-II
II. KITSAP RIFLE
In 2011, the County filed a complaint for an injunction, declaratory judgment, and
nuisance abatement against the Club. The County sought declaratory judgment, declaring that
the Club’s changes in use of the shooting range were unlawful expansions of the Club’s
nonconforming use and requested an injunction enjoining the Club from operating its range.
The trial court conducted a lengthy bench trial and entered extensive findings of fact and
conclusions of law. The trial court compared the Club’s use of the shooting range from when the
Club’s nonconforming use was established in 1993 to the Club’s present use of the range. The
trial court concluded:
The actions by [the Club] of
(1) expanded hours;
(2) commercial, for-profit use (including military training);
(3) increasing the noise levels by allowing explosive devises [sic], higher
caliber weaponry greater than [.]30 caliber and practical shooting
significantly changed, altered, extended and enlarged the existing use.
CP at 193-94. As a result, the trial court concluded that these actions were expansions of use.
The trial court also concluded that the Club violated various County code provisions by failing to
obtain site development and conditional use permits for its extensive property development
work. The trial court determined that the Club’s developments of the shooting range were illegal
uses of the property.
The trial court then issued a permanent injunction prohibiting the Club from operating its
shooting range until it applied for, and the County issued, conditional use permits for the range.
The trial court also issued a permanent injunction prohibiting the use of fully automatic firearms,
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No. 48781-1-II
weaponry greater than .30 caliber, and exploding targets and cannons, and it restricted the Club’s
operating hours.3
The Club appealed the trial court’s declaratory judgment and permanent injunctions to
this court. Kitsap County v. Kitsap Rifle & Revolver Club (Kitsap Rifle), 184 Wash. App. 252,
266, 337 P.3d 328 (2014). While Kitsap Rifle was pending in this court, a commissioner of this
court granted a stay of the trial court’s injunction enjoining all shooting range activities on the
Club’s property. However, this court imposed conditions that prohibited the use of automatic
weapons, cannons, and exploding targets at the shooting range.4
3
The trial court issued an additional permanent injunction designed to abate the public nuisance
conditions on the Club’s shooting range. The public nuisance injunction enjoined the Club from
the use of: fully automatic firearms, including but not limited to machine guns; rifles greater than
.30 caliber; and exploding targets and cannons. The public nuisance injunction also prohibited
the Club from operating its shooting range before 9:00 a.m. and after 7:00 p.m. In Kitsap County
v. Kitsap Rifle & Revolver Club (Kitsap Rifle), 184 Wash. App. 252, 302, 337 P.3d 328 (2014), the
court determined that the trial court did not abuse its discretion in issuing the public nuisance
injunction. The public nuisance injunction is not at issue in this appeal, and nothing in this
opinion should be read to mean that the Club is not still enjoined by that injunction.
4
The commissioner’s ruling imposed the following conditions:
(1) Range safety officers must be present at all time[s] that shooting is
occurring. Video recordings must be made while shooting is occurring.
(2) [The Club] must allow officials from Kitsap County access to the
property to monitor compliance with these conditions. It must allow those officials
access to the video recordings.
(3) Shooting must be restricted to between 8:00 A.M. to 8:00 P.M.
(4) No fully automatic weapons may be fired.
(5) No cannons may be fired, except on the Fourth of July, and no exploding
targets may be used.
CP at 312.
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A. Expansions of Use
In Kitsap Rifle, the Club did not assign error to any of the trial court’s findings of fact
regarding the Club’s expansions of its nonconforming use. 184 Wash. App. at 267. As a result,
the trial court’s unchallenged findings were considered verities on appeal. 184 Wash. App. at 267.
The Kitsap Rifle court determined that the trial court’s unchallenged findings supported its legal
conclusions that the Club’s commercial and military use of the shooting range and the frequent
and drastically increased noise levels were expansions of its nonconforming use. 184 Wash. App.
at 273-74.
Additionally, the Kitsap Rifle court affirmed the trial court’s rulings that the commercial
use of the Club and its increased noise levels by allowing explosive devices, higher caliber
weaponry, and practical shooting constituted an impermissible expansion of the Club’s
nonconforming use. 184 Wash. App. at 268. In concluding that the for-profit commercial and
military use of the Club was an impermissible expansion, the court reasoned that “using the
property to operate a commercial business primarily serving military personnel represented a
fundamental change in use and was completely different in kind than using the property as a
shooting range for Club members and the general public.” 184 Wash. App. at 273.
The Kitsap Rifle court also determined that while the types of weapons and shooting
patterns currently used at the range did not necessarily involve a different character of use than
when the Club’s nonconforming use was established in 1993, “the frequent and drastically
increased noise levels found to exist at the Club constituted a fundamental change in the use of
the property.” 184 Wash. App. at 274. Therefore, the court held that the increased noise levels
were an impermissible expansion of the Club’s nonconforming use. 184 Wash. App. at 274.
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Further, the court reversed the trial court’s ruling that the Club’s expansion of its
operating hours constituted an impermissible expansion of its nonconforming use. 184 Wash. App.
at 303. The Kitsap Rifle court reasoned that the Club’s expansion of its operating hours
constituted a permissible intensification of its nonconforming use because “increased hours of
shooting range activities here do not effect a ‘fundamental change’ in the use and do not involve
a use ‘different in kind’ than the nonconforming use.” 184 Wash. App. at 273 (quoting Keller v.
City of Bellingham, 92 Wash. 2d 726, 731, 600 P.2d 1276 (1979)).
B. Permit Violations
The Kitsap Rifle court noted that the Club did not deny that it had violated several
provisions of the County’s code by grading, excavating, and filling the land. 184 Wash. App. at
275. These violations of the County’s code were unlawful uses of the Club’s property. See 184
Wash. App. at 275. As a result, there was “no dispute that the Club’s unpermitted development
work on the property constituted unlawful uses.” 184 Wash. App. at 275.
C. Remedies
The Kitsap Rifle court vacated the trial court’s injunction prohibiting the Club from
operating as a shooting range, holding that termination of the Club’s nonconforming use status
was improper. 184 Wash. App. at 303. The Kitsap Rifle court reasoned that the Club’s use of the
shooting range remained lawful. 184 Wash. App. at 300-01. As a result, the Club’s unlawful
expansion of its nonconforming use did not “trigger termination of the otherwise lawful
nonconforming use.” 184 Wash. App. at 298.
Instead, the Kitsap Rifle court instructed that “the appropriate remedy involves
specifically addressing the impermissible expansion of the Club’s nonconforming use and
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No. 48781-1-II
unpermitted development activities while allowing the Club to operate as a shooting range.” 184
Wash. App. at 262. Accordingly, the trial court’s remedy on remand must reflect that “some
change in use—‘intensification’—is allowed and only ‘expansion’ is unlawful.” 184 Wash. App.
at 301. The court also noted that the County’s code provided the appropriate remedy for the
Club’s permitting violations. 184 Wash. App. at 301.
III. REMAND
After this court remanded Kitsap Rifle, the Club served the County with interrogatories,
and the County filed a motion to quash discovery. At a hearing on the County’s motion to quash
discovery, the trial court determined that discovery was not appropriate. The trial court reasoned
that there was no need for discovery unless the record was reopened and that additional evidence
was not needed to give effect to this court’s instructions in Kitsap Rifle. Accordingly, the trial
court granted the County’s motion to quash discovery.
The Club also filed a motion to reopen the record. The Club sought to introduce
evidence of the Club’s operations during this court’s stay order in Kitsap Rifle, including a study
of the shooting range’s noise levels during the stay. The Club argued that this evidence was
necessary for the trial court to fashion a proper remedy on remand and for the trial court to
resolve this court’s factual questions in Kitsap Rifle. The trial court denied the Club’s motion to
reopen the record, stating that it “[did] not believe the Court of Appeals anticipated reopening the
record” and that additional evidence was not necessary to determine the proper remedy for the
Club’s expansions of its nonconforming use. 2 Verbatim Report of Proceedings (VRP) at 45.
Later, the Club and the County presented argument regarding the proper remedy for the
Club’s expansions of its nonconforming use. The County proposed that the trial court enter an
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No. 48781-1-II
amended judgment that incorporated its prior orders. The Club objected to an amended
judgment and argued instead that the trial court should enter a supplemental judgment without
incorporating or attaching documents from Kitsap Rifle.
The trial court entered an order supplementing judgment on remand. In its supplemental
judgment, the trial court issued a declaratory judgment, declaring that
activities and uses of the Property consisting of military training uses; commercial,
for-profit uses; and uses increasing noise levels by allowing explosive devices,
higher caliber weaponry greater than .30 caliber and practical shooting, each
constitute unlawful expansions of and changes to the nonconforming use of the
Property as a shooting range.
CP at 1341.
In addition, the trial court issued a permanent injunction prohibiting the Club from
commercial, for-profit uses; military training uses; the use of explosive devices, including
exploding targets; the use of high caliber weaponry greater than .30 caliber; and practical
shooting and uses, including organized competitions and practice sessions. The trial court
determined that each of these uses constituted an impermissible expansion of the Club’s use of
the shooting range and should be enjoined until the County issues the Club a conditional use
permit that specifically authorizes the expanded use. The trial court issued an additional
permanent injunction, requiring the Club 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.” CP at 1342. The Club appeals.
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No. 48781-1-II
ANALYSIS5
I. REOPENING THE RECORD & DISCOVERY
The Club argues that the trial court abused its discretion by (a) denying its motion to
reopen the trial record on remand and (b) granting the County’s motion to quash discovery. We
disagree.
A. Motion To Reopen the Record
The Club argues that the trial court abused its discretion by denying its motion to reopen
the trial record on remand because the Club sought to admit additional, relevant evidence that
was not reasonably available at the time of trial. We disagree.
We review the trial court’s refusal to reopen the record for a manifest abuse of discretion.
Sweeny v. Sweeny, 52 Wash. 2d 337, 339, 324 P.2d 1096 (1958). A trial court abuses its discretion
when its decision is manifestly unreasonable or based on untenable grounds or untenable
reasons. Hundtofte v. Encarnación, 181 Wash. 2d 1, 6, 330 P.3d 168 (2014). In determining
whether to grant a party’s motion to reopen the record, the trial court should consider whether
the evidence is relevant to a material issue, is newly discovered, or could not have been offered
at a reasonable time. 14A KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE §
30.23, at 244 (2d ed. 2009). Evidence is relevant if it tends to make the existence of a fact that is
5
As an initial matter, the County argues that we should not consider the Club’s references to the
“‘Declaration of M. Carter in Support of Mot. to Stay’” because the declaration is outside the
trial court’s record. Br. of Resp’t at 4. We do not review matters outside the record on appeal.
See City of Sumner v. Walsh, 148 Wash. 2d 490, 495, 61 P.3d 1111 (2003). “[A] record on appeal
may not be supplemented by material which has not been included in the trial court record.”
Snedigar v. Hodderssen, 114 Wash. 2d 153, 164, 786 P.2d 781 (1990). Because the declaration at
issue is not part of the trial court record, we do not consider it.
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No. 48781-1-II
of consequence to the determination of the action more or less probable than it would be without
the evidence. ER 401.
While Kitsap Rifle was pending in this court, this court stayed the trial court’s order
enjoining the Club from operating its shooting range but imposed certain conditions prohibiting
the use of automatic weapons, cannons, and exploding targets. This court then decided Kitsap
Rifle, holding that the Club’s commercial and military use of the shooting range and the
frequently and dramatically increased noise levels on the range constituted unlawful expansions
of its nonconforming use. 184 Wash. App. at 273-74. The Kitsap Rifle court vacated the trial
court’s injunction precluding the Club from operating as a shooting range and remanded the case
to the trial court to “fashion an appropriate remedy for the Club’s unlawful expansion of its
nonconforming use.” 184 Wash. App. at 262.
In the Club’s motion to reopen the record before the trial court, the Club sought to
introduce evidence of its operations during this court’s stay order, including a sound study
conducted during the stay period. The trial court denied the Club’s motion to reopen the record,
determining that additional evidence was not necessary to fashion a proper remedy on remand.
The Club argues that its sound study was newly available evidence that would have
shown that the Club had abated the increased noise levels on its shooting range. The Club argues
that because it abated the impermissible expansion of its nonconforming use, injunctive relief
was no longer necessary on remand. The Club’s argument is unpersuasive.
The Club’s sound study, and other proposed evidence, was obtained after trial, and it
could not have been offered at a reasonable time during trial. But this fact alone does not
mandate reopening the record.
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The issue before the trial court on remand involved only the proper remedy for the Club’s
impermissible expansions of use. The Kitsap Rifle court did not say or suggest that factual
questions remained on remand or that additional evidence was necessary to fashion an
appropriate remedy. Whether the behavior of the Club, which was mandated by this court’s
interim order, was necessary or relevant was within the trial court’s discretion. It is a reasonable
conclusion that any change in the Club’s use of the shooting range after trial did not make the
fact that the Club had impermissibly expanded its nonconforming use, necessitating an
appropriate remedy, any more or less probable.
Accordingly, the trial court’s decision to deny the Club’s motion to reopen the record on
remand was based on tenable grounds and reasons. Therefore, the trial court did not manifestly
abuse its discretion.
The Club also argues that the trial court violated the law of the case doctrine under RAP
2.5(c) because the Kitsap Rifle court’s holdings required that the trial court reopen the record on
remand and allow discovery. We disagree.
The law of the case doctrine is codified in RAP 2.5(c). Lodis v. Corbis Holdings, Inc.,
192 Wash. App. 30, 56, 366 P.3d 1246 (2015), review denied, 185 Wash. 2d 1038 (2016). This
doctrine stands for the proposition that “once there is an appellate holding enunciating a principle
of law, that holding will be followed in subsequent stages of the same litigation.” Roberson v.
Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005).
The Kitsap Rifle court affirmed the trial court’s holdings that the Club’s commercial use
of its shooting range and dramatically increased noise levels were impermissible expansions of
its nonconforming use. 184 Wash. App. at 261-62. The court ordered remand only “for the trial
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No. 48781-1-II
court to fashion an appropriate remedy for the Club’s unlawful expansion of its nonconforming
use.” 184 Wash. App. at 262. The Kitsap Rifle court did not address whether the record must be
reopened on remand or whether the trial court must allow discovery.
While the Club cites the law of the case doctrine, it does not provide authority to support
its contention that a trial court must reopen the record on remand absent direct instructions to do
so. The Kitsap Rifle court did not hold that the trial court must reopen the record or allow
discovery on remand. Because the trial court did not violate the Kitsap Rifle court’s holdings on
remand by denying the Club’s motion to reopen the record, the trial court did not violate the law
of the case doctrine. Thus, the Club’s argument fails.
B. Motion To Quash Discovery
The Club also argues that the trial court abused its discretion by granting the County’s
motion to quash discovery because the Club was entitled to present evidence relevant to the
factual questions raised on remand. We disagree.
We generally review a trial court’s discovery order for an abuse of discretion. T.S. v. Boy
Scouts of Am., 157 Wash. 2d 416, 423, 138 P.3d 1053 (2006). The trial court is afforded broad
discretion to manage the discovery process. Nakata v. Blue Bird, Inc., 146 Wash. App. 267, 277,
191 P.3d 900 (2008). We reverse a trial court’s discovery ruling “only ‘on a clear showing’ that
the court’s exercise of discretion was ‘manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” T.S., 157 Wash. 2d at 423 (quoting State ex rel. Carroll v.
Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971)).
After this court ordered remand in Kitsap Rifle, the Club served the County with
interrogatories. The County then filed a motion to quash discovery, which the trial court granted
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after concluding that discovery was not appropriate because the record would not be reopened on
remand.
As discussed above, the Kitsap Rifle court affirmed the trial court’s findings and
conclusions that the Club’s commercial use of its shooting range and the increased noise levels
on the shooting range constituted an impermissible expansion of its nonconforming use. 184
Wash. App. at 273-74. The appellate court ordered remand for the trial court only to “fashion an
appropriate remedy for the Club’s unlawful expansion of its nonconforming use.” 184 Wash. App.
at 262. Accordingly, the Kitsap Rifle court did not remand any factual questions for the trial
court to consider, and the trial court determined that additional evidence was not necessary to
fashion an appropriate remedy for the Club’s impermissible expansions of use. The Club fails to
provide a clear showing that the trial court’s decision granting the County’s motion to quash
discovery was based on untenable grounds or untenable reasons. Accordingly, the trial court did
not abuse its discretion.
II. FORM & SCOPE OF THE INJUNCTION
The Club argues that the trial court erred in entering a permanent injunction enjoining (a)
the Club’s expansions of its nonconforming use and (b) site development activities because the
terms of the injunctions are overbroad, vague, and prohibit the Club from engaging in the lawful
use of its property. We agree in part, and we vacate in part and remand in part the trial court’s
injunction prohibiting “[c]ommercial, for-profit uses”; the “[u]se of explosive devices including
exploding targets”; the “[u]se of high caliber weaponry greater than .30 caliber”; and “[p]ractical
shooting, uses, including organized competitions and practice.” CP at 1341.
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A. Legal Principles
We review a trial court’s decision to grant an injunction, and the terms of that injunction,
for an abuse of discretion. Nw. Props. Brokers Network, Inc. v. Early Dawn Estates
Homeowner’s Ass’n, 173 Wash. App. 778, 789, 295 P.3d 314 (2013). A trial court abuses its
discretion when its decision is based on untenable grounds or is manifestly unreasonable.
Atwood v. Shanks, 91 Wash. App. 404, 409, 958 P.2d 332 (1998). “Trial courts have broad
discretionary power to fashion injunctive relief to fit the particular circumstances of the case
before it,” and we give the trial court’s exercise of discretion great weight. Hoover v. Warner,
189 Wash. App. 509, 528, 358 P.3d 1174 (2015); see Atwood, 91 Wash. App. at 408-09.
CR 65(d) sets forth the form and scope of an injunction and provides that “[e]very order
granting an injunction . . . shall set forth the reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail, and not by reference to the complaint or other document, the
act or acts sought to be restrained.” Because Federal Rule of Civil Procedure 65(d) is identical to
CR 65(d), we may look to cases interpreting the federal rule for guidance. All Star Gas, Inc. of
Washington v. Bechard, 100 Wash. App. 732, 736-37, 998 P.2d 367 (2000).
Federal Rule 65(d) “‘was designed to prevent uncertainty and confusion on the part of
those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a
decree too vague to be understood.’” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1087
(9th Cir. 2004) (quoting Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 L. Ed. 2d 661
(1974)). As a result, Rule 65(d) requires that the language of an injunction be reasonably clear
so that an ordinary person will know precisely what action is prohibited. United States v.
Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). Injunctions do not violate the requirements of
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No. 48781-1-II
Rule 65(d) “unless they are so vague that they have no reasonably specific meaning.” 762 F.2d
at 726.
The scope of an injunction is decided on the facts of each case at the trial court’s
discretion. King v. Riveland, 125 Wash. 2d 500, 515, 886 P.2d 160 (1994). The injunction “must
be tailored to remedy the specific harms shown rather than to enjoin all possible breaches of the
law.” Kitsap County v. Kev, Inc., 106 Wash. 2d 135, 143, 720 P.2d 818 (1986). As a result, the
trial court may not issue a more comprehensive injunction than is necessary to remedy proven
abuses. Whatcom County v. Kane, 31 Wash. App. 250, 253, 640 P.2d 1075 (1981).
B. Injunction Enjoining Expansions of Use
The Club argues that the trial court erred in entering a permanent injunction enjoining the
expansions of its nonconforming use because the terms of the injunction are overbroad, vague,
and prohibit the Club from engaging in the lawful use of its property. Specifically, the Club
argues that the trial court erred in enjoining (1) commercial, for-profit uses; (2) military training
uses; (3) use of explosive devices, including exploding targets; (4) use of high caliber weaponry
greater than .30 caliber; and practical shooting and uses, including competitions and practice
sessions. We agree in part and discuss each argument in turn.
1. Commercial, For-Profit Uses
The Club argues that the trial court’s injunction enjoining “commercial, for-profit uses”
is overbroad and is not narrowly tailored. We agree. Accordingly, we vacate this term of the
injunction and remand with specific instructions to the trial court to fashion a remedy that
reflects, consistent with this court’s opinion in Kitsap Rifle, that the Club’s operation of
commercial, for-profit businesses that provide firearms courses to primarily military personnel is
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No. 48781-1-II
an impermissible expansion of the Club’s nonconforming use, not all commercial, for-profit
uses.
In its original order, the trial court found that three different commercial, for-profit
companies conducted regular self-defense courses and active training exercises for active duty
military personnel at the Club’s shooting range. When the Club’s nonconforming use was
established in 1993, commercial, for-profit businesses did not conduct firearms training at the
range. The trial court concluded that the Club’s use of the shooting range to operate commercial
businesses primarily serving military personnel constituted an expansion of the Club’s
nonconforming use.
In Kitsap Rifle, the court determined that the operation of commercial, for-profit
businesses that provided firearms courses at the Club’s shooting range was an impermissible
expansion of use. 184 Wash. App. at 273-74. The Kitsap Rifle court reasoned that the operation of
commercial, for-profit businesses that conducted firearms training serving primarily military
personnel was a fundamental change in the Club’s use of its shooting range and was different in
kind from the Club’s operations at the time its nonconforming use was established. 184 Wn.
App. at 273. On remand, the trial court entered a supplemental judgment that included an
injunction prohibiting “[c]ommercial, for-profit uses” of the Club’s shooting range. CP at 1341.
The injunction’s prohibition of “commercial, for-profit uses” is not reasonably clear and
is not tailored to remedy the Club’s impermissible expansion of use by permitting the
commercial and military use of its shooting range, as acknowledged in Kitsap Rifle. The trial
court found that multiple commercial, for-profit companies conducted firearms training courses
at the Club’s shooting range. The Kitsap Rifle court determined that the commercial, for-profit
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No. 48781-1-II
operation of these firearms training courses was a fundamental change in the Club’s use of its
range and that this fundamental change constituted an impermissible expansion of the Club’s
nonconforming use. In its supplemental order, the trial court enjoined “commercial, for-profit
uses,” but this term appears to prohibit all commercial, for-profit operations at the Club’s
shooting range. Further, the trial court’s injunction is not limited to only commercial, for-profit
businesses that provide firearms training primarily for military personnel. As a result, this term
of the trial court’s injunction is more comprehensive than necessary to remedy the Club’s
expansions of its nonconforming use.
Accordingly, the trial court abused its discretion in enjoining “commercial, for-profit
uses.” Thus, we vacate this term and remand with specific instructions to the trial court to
fashion a remedy that reflects that the Club’s operation of commercial, for-profit businesses that
provide firearms courses to primarily military personnel is an impermissible expansion of the
Club’s nonconforming use of its shooting range.
2. Military Training Uses
The Club also argues that the trial court’s injunction enjoining “military training uses” is
overbroad and vague. We disagree.
The trial court found that the US Navy had conducted firearm exercises at the Club’s
shooting range on at least one occasion prior to 1993. The trial court also found that after 1993,
multiple commercial, for-profit businesses conducted firearms training for military personnel and
that US Navy personnel had performed firearm exercises. In its original order, the trial court
concluded that the Club’s military training uses were an impermissible expansion of its
nonconforming use.
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No. 48781-1-II
The Kitsap Rifle court determined that the commercial, for-profit operation of firearms
training courses primarily serving military personnel was a fundamental change in the Club’s use
of its range and that this fundamental change constituted an impermissible expansion of the
Club’s nonconforming use. 184 Wash. App. at 273-74. On remand, the trial court entered an
injunction enjoining “[m]ilitary training uses” of the Club’s shooting range because it constituted
an impermissible expansion of the Club’s nonconforming use. CP at 1341.
The trial court’s original order made clear that military exercises and firearms training
were impermissible expansions of the Club’s nonconforming use. The Kitsap Rifle court agreed
that for-profit firearms training that primarily served military personnel was a fundamental
change in the Club’s use of its shooting range and that this use was an impermissible expansion
of use. 184 Wash. App. at 273-74. As a result, the trial court’s injunction enjoining “military
training uses” is tailored to remedy the Club’s impermissible expansions of its nonconforming
use. Moreover, reading the trial court’s original order and supplemental order together,6 the trial
court’s injunction is specific in terms, and it is reasonably clear that operating military training is
prohibited. Therefore, the trial court did not err in enjoining the Club from “military training
uses.”
3. Use of Explosive Devises
The Club also argues that the trial court’s injunction enjoining the “use of explosive
devices including exploding targets” is overbroad and vague. We agree. Thus, we vacate this
6
To the extent that the Club argues that we cannot review the trial court’s original order and its
supplemental order together, we disagree. The supplemental order is a continuation of the trial
court’s original order. See Arnold v. Nat’l Union of Marine Cooks & Stewards Ass’n, 42 Wash. 2d
648, 652, 257 P.2d 629 (1953) (“[S]upplemental proceedings are not a new and independent
action but are merely a continuation of the original or main action and are auxiliary thereto.”).
19
No. 48781-1-II
term of the injunction and remand with specific instructions to the trial court to clarify which
explosive devices were found to create an impermissible expansion of the Club’s nonconforming
use.
In its original order, the trial court found that the Club allowed the use of exploding
targets and cannons that increased the shooting range’s sound levels and caused nearby homes to
shake. The trial court also found that exploding targets and cannons were not commonly used by
the Club when its nonconforming use was established in 1993 and concluded that their use
constituted an impermissible expansion of use. The trial court’s original permanent injunction
prohibited the use of “exploding targets and cannons.” CP at 203.
In Kitsap Rifle, the court held that “the frequent and drastically increased noise levels
found to exist at the Club constituted a fundamental change in the use of the property.” 184 Wn.
App. at 274. As a result, the court concluded that the increased noise levels created, in part, by
the Club’s use of exploding targets and cannons were an expansion of the Club’s nonconforming
use. See 184 Wash. App. at 274. On remand, the trial court entered a supplemental judgment and
enjoined the Club from the “[u]se of explosive devices including exploding targets.” CP at 1341.
The trial court’s injunction prohibiting the use of “explosive devices” is overbroad and
prohibits more than necessary to remedy the increased noise levels at the shooting range. In its
broadest terms, this would include a bullet because it is an explosive device. In its original order,
the trial court found only that the use of exploding targets and cannons at the Club created loud
booming noises and shook nearby homes. The Kitsap Rifle court agreed that the use of
exploding targets and cannons contributed to the Club’s drastically increased noise levels. The
trial court’s all or nothing prohibition of all explosive devices is too broad to remedy the noise
20
No. 48781-1-II
expansion created by the use of exploding targets and cannons. As a result, the trial court’s
prohibition of all explosive devices is more comprehensive than necessary to remedy the Club’s
impermissible expansions of use.
Therefore, the trial court abused its discretion in entering an injunction enjoining the “use
of explosive devices including exploding targets.” Accordingly, we vacate this term of the
injunction and remand with specific instructions to the trial court to fashion a remedy that
implements its original permanent injunction prohibiting the use of “exploding targets and
cannons.”
4. Use of High Caliber Weaponry
The Club also argues that the trial court erred in entering an injunction prohibiting the
“use of high caliber weaponry greater than .30 caliber” because the term is overbroad and not
properly tailored. We agree. Accordingly, we vacate this term of the injunction and remand to
the trial court with specific instructions to clarify which weapons are prohibited because they
create noise levels that constitute an impermissible expansion of the Club’s nonconforming use.
In its original order, the trial court found that fully automatic weapons were regularly
used more recently at the Club and that rapid-fire shooting occurred frequently. The trial court
also found that the “[u]se of fully automatic weapons, and constant firing of semiautomatic
weapons led several witnesses to describe their everyday lives as being exposed to the ‘sounds of
war.’” CP at 191. The trial court’s original permanent injunction prohibited the use of “rifles of
greater than nominal .30 caliber.” CP at 203.
The Kitsap Rifle court held that the noise created by the use of fully and semiautomatic
weapons created an impermissible noise expansion because it contributed to the shooting range’s
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No. 48781-1-II
dramatically increased noise levels. 184 Wash. App. at 274. On remand, the trial court entered an
injunction that prohibited the “[u]se of high caliber weaponry greater than .30 caliber.” CP at
1341.
Although the weapon’s caliber may factor into the trial court’s determination that certain
activities constitute a nonconforming use, the term of the trial court’s language enjoining the use
of high caliber weaponry is overbroad. The trial court’s original order determined that automatic
weapons and rapid-fire shooting led to the Club’s impermissible noise expansion. The
permanent injunction at issue appears to restrict all weapons that are greater than .30 caliber,
such as pistols and shotguns. However, the trial court did not make any findings regarding
increased noise levels by high caliber weapons other than fully and semiautomatic weapons.
Moreover, the Kitsap Rifle court held that, on remand, the trial court’s remedy must
reflect that only expansion is unlawful. 184 Wash. App. at 301. In its original order, the trial court
found that activities including higher caliber weaponry had caused “an increase in the noise level
emanating from the Club in the past five to six years.” CP at 192. The trial court’s injunction
prohibits weapons that were not found to constitute an impermissible expansion of use. As a
result, the trial court’s injunction is overbroad and is not tailored to remedy the Club’s
impermissible noise expansion. The trial court’s remedy must reflect that only the more recent
increases in noise levels constitute an expansion of use.
Accordingly, the trial court abused its discretion and violated CR 65(d) by enjoining the
“use of high caliber weaponry greater than .30 caliber.” Thus, we vacate this term of the
injunction and remand to the trial court with specific instructions to clarify which weapons are
22
No. 48781-1-II
prohibited because they create noise levels that constitute an impermissible expansion of the
Club’s nonconforming use.
5. Practical Shooting
The Club also argues that the trial court erred in entering an injunction prohibiting
“[p]ractical shooting, uses, including organized competitions and practice” because the term is
not reasonably clear. Br. of Appellant at 48 [(quoting CP at 1341)].We agree. As a result, we
vacate this term of the injunction and remand to the trial court with specific instructions to clarify
whether “practical use” includes only practical shooting practices and competitions or whether
practical use includes other conduct.
The trial court found in its original order that the Club’s shooting range was frequently
used for regular practical shooting practices and competitions. The trial court also found that the
practical shooting practices and competitions resulted in rapid-fire shooting for a number of
hours. The Kitsap Rifle court affirmed the trial court’s conclusion that the Club’s practical
shooting practices and competitions increased the shooting range’s noise levels and created an
impermissible expansion of the Club’s nonconforming use. 184 Wash. App. at 274. On remand,
the trial court entered an injunction enjoining “[p]ractical shooting, uses, including organized
competitions and practice.” CP at 1341.
The injunction’s prohibition of “practical shooting, uses, including organized
competitions and practice” is not reasonably clear. The trial court’s original order finds only that
“regularly scheduled practical shooting practices and competitions” contributed to the increase in
noise levels on the Club’s shooting range. CP at 188. Reading the trial court’s supplemental
order and original order together, the trial court appears to prohibit more than only regularly
23
No. 48781-1-II
scheduled practical shooting practices and competitions. In its original order, the trial court
found that activities including practical shooting competitions had caused “an increase in the
noise level emanating from the Club in the past five to six years.” CP at 192. The trial court’s
remedy must reflect that only the more recent increases in noise levels constitute an expansion of
use.
Moreover, it is unclear what constitutes practical shooting uses, other than practical
shooting practices and competitions, and what practical shooting uses are prohibited. Because
the injunction’s prohibition of practical shooting is not so reasonably clear that an ordinary
person would know precisely what action is prohibited, it is so vague that is has no reasonably
specific meaning. As a result, that term violates the specificity requirements in CR 65(d).
Consequently, the trial court abused its discretion in enjoining “practical shooting, uses,
including organized competitions and practice.” Accordingly, we vacate this term and remand to
the trial court with specific instructions to clarify whether “practical use” includes only practical
shooting practices and competitions or whether practical use includes other conduct.7
C. Injunction Enjoining Site Development
The Club also argues that the trial court erred in entering a permanent injunction
enjoining site development activities at the shooting range because the terms of the injunction are
vague. Specifically, the Club argues that the terms of the injunction are vague because the
7
The trial court’s remedy may impose limitations on the frequency and duration of practical
shooting events to reflect that the more recent increases in noise levels from the Club’s practical
shooting competitions constituted an impermissible expansion of use.
24
No. 48781-1-II
injunction references an outside document, the court’s original order, for meaning. We find the
Club’s argument unpersuasive.
On remand, the trial court issued an additional injunction that required the Club to “apply
for and obtain site development activity permitting to cure violations of KCC Titles 12 and 19
found to exist on the Property in the original Judgment.” CP at 1342. While CR 65(d) states that
an injunction should not “reference to the complaint or other document, the act or acts sought to
be restrained,” we do not consider the trial court’s original order to be a separate document under
CR 65(d). The trial court’s supplemental order on remand explicitly supplemented the trial
court’s original order. As a result, the supplemental order is a continuation of the trial court’s
original order. See Arnold v. Nat’l Union of Marine Cooks & Stewards Ass’n, 42 Wash. 2d 648,
652, 257 P.2d 629 (1953) (“[S]upplemental proceedings are not a new and independent action
but are merely a continuation of the original or main action and are auxiliary thereto.”). Thus,
the Club’s argument fails.
III. DECLARATORY JUDGMENT
The Club also argues that the trial court erred in entering declaratory judgment because
its legal conclusions regarding which actions were an expansion of the Club’s nonconforming
use conflict with this court’s holdings in Kitsap Rifle. We disagree with the Club’s argument but
nonetheless reverse and remand the trial court’s declaratory judgment in part.
In reviewing a declaratory judgment, we review whether the trial court’s findings of fact
are supported by substantial evidence and, if so, whether the findings support the trial court’s
conclusions of law. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash. 2d 873, 879-80, 73 P.3d
25
No. 48781-1-II
369 (2003). Unchallenged findings of fact are verities on appeal. Buck Mountain Owners’ Ass’n
v. Prestwich, 174 Wash. App. 702, 714, 308 P.3d 644 (2013).
As discussed above, the law of the case doctrine binds this court to the prior appeal’s
holdings. Humphrey Indus., Ltd. v. Clay St. Assocs., 176 Wash. 2d 662, 669, 295 P.3d 231 (2013).
Questions that were decided by the prior appellate decision, or that could have been decided if
they had been raised on appeal, “‘will not again be considered on a subsequent appeal if there is
no substantial change in the evidence.’” Folsom v. County of Spokane, 111 Wash. 2d 256, 263, 759
P.2d 1196 (1988) (quoting Adamson v. Traylor, 66 Wash. 2d 338, 339, 402 P.2d 499 (1965)).
In Kitsap Rifle, the Club did not assign error to any of the trial court’s findings of fact
regarding the Club’s expansions of its nonconforming use. 184 Wash. App. at 267. As a result,
the trial court’s unchallenged findings were considered verities on appeal. 184 Wash. App. at 267.
The Kitsap Rifle court determined that the trial court’s unchallenged findings supported its legal
conclusions that the Club’s commercial and military use of the shooting range and the frequent
and drastically increased noise levels were expansions of its nonconforming use. 184 Wash. App.
at 273-74. Accordingly, the Kitsap Rifle court affirmed the trial court’s rulings that the
commercial use and increased noise levels were impermissible expansions of use. 184 Wash. App.
at 261-62.
On remand, the trial court granted Kitsap County a declaratory judgment, declaring that
the Club’s “military training uses; commercial, for-profit uses; and uses increasing noise levels
by allowing explosive devices, higher caliber weaponry greater than .30 caliber and practical
shooting, each constitute unlawful expansions of and changes to the nonconforming use of the . .
. shooting range.” CP at 1341.
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No. 48781-1-II
The Kitsap Rifle court affirmed the trial court’s conclusions that the Club’s commercial
and military use of the shooting range, as well as its increased noise levels, were expansions of
the Club’s nonconforming use because the trial court’s conclusions were supported by its
unchallenged findings. Because this court affirmed these conclusions in Kitsap Rifle, the trial
court’s conclusions of law regarding the Club’s expansions of its nonconforming use are the law
of the case, and we are bound by those conclusions in this subsequent appeal. Moreover, the law
of the case doctrine provides that we may not again consider whether the trial court’s findings of
fact support its conclusions of law. Because the law of the case prescribes that the trial court’s
conclusions of law are supported by its findings of fact, we do not review them here.
Despite this, the trial court erred in entering declaratory judgment because its declaratory
judgment does not conform to its conclusions of law and is contrary to this court’s opinion in
Kitsap Rifle. As discussed above, the trial court’s declaratory judgment and injunction prohibit
more than was necessary to remedy the Club’s expansions of its nonconforming use.
Accordingly, we reverse in part and remand the trial court’s declaratory judgment with
instructions to comply with this court’s instructions regarding the permanent injunction.
CONCLUSION
We vacate in part the trial court’s injunction prohibiting “commercial, for-profit uses”;
the “use of explosive devices including exploding targets”; the “use of high caliber weaponry
greater than .30 caliber”; and “practical shooting, uses, including organized competitions and
practice.” We remand the trial court’s injunction in part with specific instructions to: (1) fashion
a remedy that reflects that the Club’s allowance of commercial, for-profit businesses that provide
firearms courses to primarily military personnel is an impermissible expansion of the Club’s
27
No. 48781-1-II
nonconforming use of its shooting range; (2) clarify which explosive devices were found to
create an impermissible expansion of the Club’s nonconforming use; (3) fashion a remedy that
implements its original permanent injunction prohibiting the use of “exploding targets and
cannons;” and (4) clarify whether “practical use” includes only practical shooting practices and
competitions or whether practical shooting includes other conduct. We also reverse in part and
remand the trial court’s declaratory judgment with instructions to comply with this court’s
instructions regarding the permanent injunction, but we otherwise affirm the trial court’s Order
Supplementing Judgment on Remand.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Maxa, J.
28