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Date: 02-10-2015

Case Style: Kitsap County v. Kitsap Rifle and Revolver Club

Case Number: 43076 -2 -II and 43243 -9 -II

Judge: Maxa

Court: Washington Court of Appeals, Division II

Plaintiff's Attorney: Jennine E Christensen, Christine M Palmer and Neil Robert Wachter for Kitsap County

Defendant's Attorney: Brian Chenoweth and Brooks MacInnes Foster for Kitsap Rifle and Revolver Club

Dave Mann - Amicus Curiae on behalf of Ck Safe & Quiet, LLC

Matt Lind - Amicus Curiae on behalf of Kitsap Alliance of Property Owners

C.D. Michel and Richard Sanders - Amicus Curiae on behalf of National Rifle Association, Inc.

Description: The Kitsap Rifle and Revolver Club appeals from the trial court' s decision
following a bench trial that the Club engaged in unlawful uses of its shooting range property.
Specifically, the Club challenges the trial court' s determinations that the Club had engaged in an
impermissible expansion of its nonconforming use; that the Club' s site development activities
violated land use permitting requirements; and that excessive noise, unsafe conditions, and
unpermitted development work at the shooting range constituted a public nuisance. The Club
Consol. Nos. 43076 -2 -II / 43243 -9 -11
also argues that even if its activities were unlawful, the language of the deed of sale transferring
the property title from Kitsap County to the Club prevents the County from filing suit based on
these activities. Finally, the Club challenges the trial court' s remedies: terminating the Club' s
nonconforming use status and entering a permanent injunction restricting the Club' s use of the
property as a shooting range until it obtains a conditional use permit, restricting the use of certain
firearms at the Club, and limiting the Club' s hours of operation to abate the nuisance.'
We hold that ( 1) the Club' s commercial use of the, property and dramatically increased
noise levels since 1993, but not the club' s change in its operating hours, constituted an
impermissible expansion of its nonconforming use; ( 2) the Club' s development work unlawfully
violated various County land use permitting requirements; ( 3) the excessive noise, unsafe
conditions, and unpermitted development work constituted a public nuisance; ( 4) the language in
the property' s deed of sale from the County to the Club did not preclude the County from
challenging the Club' s expansion of use, permit violations, and nuisance activities; and (5) the
trial court did not abuse its discretion in entering an injunction restricting the use of certain
firearms at the shooting range and-limiting the Club' s operating hours to abate the public
nuisance. We affirm the trial court on these issues except for the trial court' s ruling that the
Club' s change in operating hours constituted an impermissible expansion of its. nonconforming
use. We reverse on that issue.
The County initially filed a cross appeal. We later granted the County' s motion to dismiss its
cross appeal.
Consol. Nos. 43076 -241 / 43243 -9 -11
However, we reverse the trial court' s ruling that terminating the Club' s nonconforming
use status as a shooting range is a proper remedy for the Club' s conduct. Instead, we hold that
the appropriate remedy involves specifically addressing the impermissible expansion of the
Club' s nonconforming use and unpermitted development activities while allowing the Club to
operate as 'a shooting range. Accordingly, we vacate the injunction precluding the Club' s use of
the property as a shooting range and remand for the trial court to fashion an appropriate remedy
for the Club' s unlawful expansion of its nonconforming use and for the permitting violations.
FACTS
The Club has operated a shooting range in its present location in Bremerton since it was
founded for " sport and national defense" in 1926. Clerk' s Papers ( CP) at 4054, For decades, the
Club leased a 72 -acre parcel of land from the Washington Department of National Resources
DNR). The two most recent leases stated that the Club was permitted to use eight acres of the
property as a shooting range, with the remaining acreage serving as a buffer and safety zone.
Confirmation ofNonconforming Use
In' 1993, the chairman of the Kitsap County Board of Commissioners ( Board) notified the
Club and three other shooting ranges located in Kitsap County that the County considered each
to be lawfully established, nonconforming uses. This notice was prompted by the 'shooting
ranges' concern over a proposed new ordinance limiting the location of shooting ranges.
Ordinance 50 -B- 1993). The County concedes that as of 1993 the Club' s use of the property as a
shooting range constituted a lawful nonconforming use.
3
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Property Usage Since 1993
As of 1993, the Club operated a rifle and pistol range, and some of its members
participated in shooting activities in the wooded periphery of the range. Shooting activities at the
range occurred only occasionally — usually on weekends and during the fall " sight -in" season for
hunting — and only during daylight hours. CP at 4059. Rapid -fire shooting, use of automatic .
weapons, and the use of cannons occurred infrequently in the early 1990s.
Subsequently, the Club' s property use changed. The Club allowed shooting between
7: 00 AM and 10: 00 PM, seven days a week. The property frequently was used for regularly
scheduled shooting practices and practical shooting competitions where participants used
multiple shooting bays for rapid -fire shooting in,multiple directions. Loud rapid -fire shooting
often began as early as 7: 00 AM and could last as late as 10: 00 PM. Fully automatic weapons
were regularly used at the Club, and the Club also allowed use of exploding targets and cannons.
Commercial use of the Club also increased, including private for -profit companies using the
Club for a variety of firearms courses and small arms training exercises for military personnel.
The U.S.. Navy also hosted firearms exercises at the Club once in November 2009.
The expanded hours, commercial use, use of explosive devices and higher caliber
weaponry, and practical shooting competitions increased the noise level of the Club' s activities
beginning in approximately 2005 or 2006. Shooting sounds changed from " occasional and
background in nature, to clearly audible in the down range neighborhoods, and frequently loud,
disruptive, pervasive, and long in duration." CP at 4073. The noise from the Club disrupted
neighboring residents' indoor and outdoor activities.
Consol. Nos. 43076 -2 -II / 43243 -9 -I1
The shooting range' s increased use also generated safety concerns. The Club operated a
blue sky" range with.no overhead baffles to stop the escape of accidentally or negligently
discharged bullets. CP at 4070. There were allegations that bullets had impacted nearby
residential developments.
Range Development Since 1996
From approximately 1996 to 2010, the Club engaged in extensive shooting range •
development within the eight acres of historical use, including: ( 1) extensive clearing, grading,
and excavating wooded or semi - wooded areas to create " shooting bays," which were flanked by
earthen berms and backstops; (2) large scale earthwork activities and tree /vegetation removal in
a 2.85 acre area to create what was known as the 300 meter rifle range ;2 ( 3) replacing the water
course that ran across the rifle range with two 475 -foot culverts, which required extensive work —
some of which was within an area designated as a wetland buffer; (4) extending earthen berms
along the rifle range and over the newly buried culverts which required excavating and refilling
soil in excess of 150 cubic yards; and ( 5) cutting steep slopes higher than five feet at several
locations on t.h e property.
The Club did not obtain conditional use permits, site development activity permits, or any
of the other permits required under the Kitsap County Code for its development activities.
Club' s Purchase ofProperty
In early 2009, the County and DNR negotiated a land swap that included the 72 acres the
Club leased. Concerned about: its continued existence, the Club met with County officials to
z The Club abandoned its plans to develop the proposed 300 meter rifle range because County
staff advised the Club that a conditional use permit would be required for the project.
5
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discuss.the transaction' s potential implications on its lease. The Club was eager to own the
property to ensure its shooting range' s. continued existence, and the County was not interested in
owning.the property because of concern about potential heavy metal contamination from its long
term shooting range use. In•May.2009, the Board approved the sale of the 72 -acre parcel to the
Club.
In Jame, DNR conveyed to the County several large parcels of land, including the 72
acres leased by the Club. The County then immediately conveyed the 72 -acre parcel to the Club
through an agreed bargain and sale deed with restrictive covenants.
The bargain and sale deed states that the Club " shall confine its active shooting range
facilities on the property consistent with its historical use of approximately eight (8) ' acres of
active shooting ranges." CP at 4088. The deed also states that the Club may " upgrade or
improve the property and/ or facilities within the historical approximately eight ( 8) acres in a
manner consistent with `modernizing' the facilities consistent with management practices for a
modern shooting range." CP at 4088. The deed does not identify or address any property use
disputes between the Club and County.
Lawsuit and Trial
In 2011, the County filed a complaint for an injunction, declaratory judgment, and
nuisance abatement against the Club. The County alleged thatthe Club had impermissibly
expanded its nonconforming use as a shooting range and had engaged in unlawful development
activities because the Club lacked the required permits. The County also alleged that the Club' s
activities constituted a noise and safety public nuisance. The County requested termination of
the Club' s nonconforming use status and abatement of nuisance.
Consol. Nos. 43076 -2 -II / 43243 -9 -11
After a lengthy bench trial, the trial court entered extensive findings of fact and
conclusions of law. The trial court concluded that the Club' s shooting range operation was no
longer a legal nonconforming use because ( 1) the Club' s activities constituted an expansion
rather than an intensification ofthe existing nonconforming use; ( 2) the Club' s use of the
property was illegal because it failed to obtain proper permits for the development work; and ( 3)
the Club' s activities constituted a nuisance per se, a statutory public nuisance, and a common law
nuisance due to the noise, safety, and unpermitted land use issues. The trial court issued a
permanent injunctionprohibiting use of the Club' s property as a shooting range until issuance of
a conditional use permit, which the County could condition upon application for all after -the -fact
permits required under Kitsap County Code (KCC) Title 12 and 19.The trial court also issued a
permanent injunction prohibiting the use of fully automatic firearms, rifles of greater than
nominal .30 caliber, exploding targets and cannons, and the property' s use as an outdoor
shooting range before 9: 00 AIvl or after 7: 00 PM.
The Club appeals. We granted a stay of the trial court' s injunction against all shooting
range activities on the Club property until such time as it receives a conditional use permit.
However, we imposed a number of conditions on the Club' s shooting range operations pending
our decision.
ANALYSIS
STANDARD OF REVIEW
We review atrial court' s decision following a bench trial by asking whether substantial
evidence supports the trial court' s .findings of fact and whether those findings support the trial
court' s conclusions of law. Casterline v. Roberts, .168 Wn. "App. 376, 381, 284 P. 3d 743 ( 2012).
Consol. Nos. 43076 -2 -II / 43243 -9 -II
Substantial evidence is the "quantum of evidence sufficient to persuade 'a rational fair -m inded
person the premise is true." Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P. 3d
369 ( 2003). Here, the Club did not assign error to any of the trial court' s findings of fact, and
only challenged four findings regarding the deed in its brief.3 Accordingly, we treat the
unchallenged findings of fact as verities on appeal. In re Estate ofJones, 152 Wn.2d 1, 8, 100
P.3d 805 ( 2004).
The process of determining the applicable law and applying it to the facts is a question of
law that we review de novo. Erwin v. Cotter Health Ctrs., Inc., 161 Wn.2d 676, 687, 167 P.3d
1112 (2007). We also review other questions of law de novo. Recreational Equip., Inc. v. World
Wrapps Nw., Inc., 165 Wn. App. 553, 559, 266 P.3d 924 (2011).
We apply customary principles of appellate review to an appeal of a declaratory
judgment reviewing the trial court' s findings of fact for substantial evidence and the trial court' s
conclusions of law de novo. Nw. Props. Brokers Network, Inc. v. Early Dawn Estates
Homeowners' Ass' n, 173 Wn. App 778, 789, 295 P. 3d 314 ( 2013).
THE CLUB' S UNLAWFULACTIVITIES
The Club argues that the trial court erred in ruling that the Club' s use of the property
since 1993 was unlawful because ( 1) the Club' s activities constituted an expansion rather than an
intensification of the existing nonconforming use, ( 2) the Club failed to obtain proper permits for
3 In the body -of its brief the Club argued that the evidence did not support findings of fact 23, 25,
26, and 57. These findings primarily involve the trial court' s interpretation of the deed
transferring title from the County to the Club. Although the Club' s challenge to these findings
did not comply with RAP 10.3( g), in our discretion we will consider the Club' s challenge to
these findings.
Consol. Nos. 43076 -2 -II / 43243 -9 -1I
its extensive development work, and ( 3) the Club' s activities constituted a public nuisance. We
disagree and hold that the trial court' s unchallenged findings of fact support these legal
conclusions.
A. EXPANSION OF NONCONFORMING USE
The Club argues That the trial court erred in ruling that the Club engaged in an
impermissible expansion of the existing nonconforming use by (1) increasing its operating hours;
2) allowing commercial use ofthe Club .(including military training); and ( 3) increasing noise
levels by allowing explosive devices, higher caliber weaponry greater than 30 caliber, and
practical shooting. We hold that increasing the operating hours represented an intensification
rather than an expansion of use, but agree that the other two categories of changed use
constituted expansions of the Club' s nonconforming use.
1. Changed Use — General Principles
A legal nonconforming use is a use that "lawfully existed" before a change in regulation
and is allowed to continue although it does not comply with the current regulations. King
County Dep' t ofDev. & Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305 P. 3d 240 ( 2013);
Rhod -A -Zalea v. Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 ( 1998). Nonconforming
uses are allowed to continue because it would be unfair, and perhaps a violation of due process,
to require an immediate cessation of such a use. King County DDES, 177 Wn.2d at 643; Rhod-
A- Zalea, 136 Wn.2d at 7.
As our Supreme Court noted, as time passes a nonconforming property use may grow in
volume or intensity. Keller v. City ofBellingham, 92 Wn.2d 726, 731, 600 P.2d 1276 ( 1979).
Although a property owner generally has a right to continue a protected nonconforming use
Consol. Nos. 43076 -2 -11 / 43243 -9 -II
there is no right to " significantly change, alter, extend, or enlarge the existing use." Rhod-AZalea,
136 Wn.2d at 7. On the other hand, an " intensification" ofthe nonconforming use
generally is permissible. Keller, 92 Wn.2d at 731. " Under Washington common law,
nonconforming uses may be intensified, but not expanded." City of University Place v.
McGuire, 144 Wn.2d 640, 649, 30 P. 3d 453 ( 2001). Our Supreme Court stated the standard for
distinguishing between intensification and expansion:
When an increase in volume or intensity of use is of such magnitude as to effect a
fundamental change in a nonconforming use, courts may find the change to be
proscribed by the ordinance. Intensification is permissible, however, where the
nature and character of the use is unchanged and substantially the same facilities
are used. The test is whether the intensified use is • different in kind from the
nonconforming use in existence when the zoning ordinance was adopted.
Keller, 92 Wn.2d at 731 ( internal citations omitted).
In Keller, our Supreme Court determined that a chlorine manufacturing company' s
addition of six cells to bring its building to design capacity (which increased its chlorine
production by 20 -25 percent) constituted an intensification rather than an expansion, and thus
was permissible under the company' s chlorine manufacturing nonconforming use status. 92
Wn.2d at 727 -28, 731. The court' s decision was based on the Bellingham City Code (BCC),
which stated that a nonconforming use " ` shall not be enlarged, relocated or rearranged,' " but
did not specifically prohibit intensification. Keller, 92 Wn.2d at 728 731 ( quoting BCC §
20. 06. 027( b)( 2)). The. Supreme Court highlighted the trial court' s unchallenged factual findings
that the addition of the new cells " wrought no change in the nature or character of the
nonconforming use" and had no significant effect on the neighborhood or surrounding
environment. Keller, 92 Wn.2d at 731 -32.
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2. Kitsap County Code Provisions
Our Supreme Court in Rhod -A -Zalea noted that the Washington statutes are silent
regarding regulation of nonconforming uses and•that the legislature " has deferred to local
governments to seek solutions to the nonconforming use problem according to local
circumstances." 136 Wn.2d at 7. As a result, "local governments are free to preserve, limit . or
terminate nonconforming uses subject only to the broad limits of applicable enabling acts and the
constitution." Rhod -A- Zalea, 136 Wn.2d at 7. The analysis in Keller is consistent with these
principles. Accordingly, we first determine whether the Club' s increased activity is permissible
under the Code provisions that regulate nonconforming uses, interpreted within due process
limits.
Title 17 of the Code relates to zoning. KCC 17.460. 020 provides:
Where a lawful use of land exists that is not allowed under current regulations, but
was allowed when the use was initially established, that use may be continued so
long as it remains otherwise lawful, and shall be deemed a nonconforming use.
This ordinance reflects that generally the Code " is intended to permit these noinconformities to
continue until they are removed or discontinued." KCC 17. 460.010.
The Code contains two provisions that address when a nonconforming use changes.
First, KCC 17.460. 020( C) prohibits the geographic expansion or relocation of nonconforming
uses:
If an existing nonconforming use or portion thereof, not housed or enclosed within
a structure, occupies a portion of a lot or parcel of land on the effective date hereof,
the area ofsuch use may not be expanded, nor shall the use or any part thereof, be
moved to any other portion of the property not historically used or occupied for
such use.
Consol. Nos. 43076 -2 -II / 43243 -9 -II
Emphasis added). This ordinance prohibits expansion of only the area of a nonconforming use
i.e., the footprint of the use. .
With one possible exception,4 the Club did not violate. this provision. The trial court
concluded that the Club " enjoyed a legal protected nonconforming status for historic use of the
existing eight acre range." CP at 4075. The Club developed portions of its " historic eight acres"
by creating shooting bays, beginning preliminary work for relocating its shooting range, and
constructing culverts to convey a water course across the range. CP at 4060. There is no
allegation that any of this work took place outside the existing area of the Club' s nonconforming
use. Further, all of the activities that the trial court found constituted an expansion ofuse took
place within the eight acre area.
Second, formerKCC 17. 455. 060 ( 1998), which was repealed after the trial court rendered
its opinion,5 provided:
A use or structure not conforming to the zone in which it is located shall not be
altered or .enlarged in any manner, unless such alteration or enlargement would
bring the use or structure into greater conformity with the uses permitted within,
or requirements of, the zone in which it is located.
4 The one possible violation of KCC .17.460.020 involved the Club' s work on the proposed 300
meter range. It is unclear whether the proposed 300 meter range was outside the historic eight
acres. The trial court made no factual finding on this issue, although the parties imply that this
project went beyond the existing area. In any event, when the County objected the Club
discontinued its work in this area. Because the project was abandoned, at the time of trial the
Club no longer was in violation of KCC 17.460.020. Apparently, the Club currently is using this
area for storage but is willing to move the items if a court determines it is outside its historical
use area.
5 Neither party discusses the effect of former KCC 17.455. 060 being repealed. Because we
interpret this ordinance consistent with the common law, we need not address this issue.
12
Consol. Nos. 43076 -2 -11 / 43243 -9 -11
Emphasis added). The court in•Keller determined that the term "enlarged" in the ordinance at
issue did not prohibit intensification. 92 Wn.2d at 731. " Alter" is defined as " to cause to
become different in some particular characteristic ... without changing into something else."
WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY at 63 ( 2002). Arguably, the prohibition on
altering a nonconforming use could be interpreted as prohibiting every intensification of that use.
But the County does not argue that former KCC 17.455. 060 prohibits .intensification. Further, as
in Keller, the Code does not expressly prohibit intensification of a nonconforming use. And
interpreting former KCC 17.455. 060 strictly to prohibit any change in use would conflict with
the rule that zoning ordinances in derogation of the common law should be strictly construed.
Keller, 92 Wn.2d at 730.
Based on these factors, we interpret former KCC 17.455. 060 as adopting the common
law and prohibiting " expansion" but not " intensification" of anonconforming use. As a result,
we must analyze whether the Club' s use since 1993 constitutes an expansion or intensification of
use under common law principles.
3. Expansion vs. Intensification
As discussed above, Keller described the concept of "expansion" as an increase in the
volume or intensity of the use of such magnitude that effects a " fundamental change" in the use,
and the concept of "intensification" as where the " nature and character" of the use is unchanged
and substantially the same facilities are used. 92 Wn.2d at 731. According to Keller, the test is
whether the intensified use is " different in kind" than the nonconforming use. 92 "Wn.2d at 731..
Although the case law is somewhat unclear, we hold that the expansion/intensification
determination is a question of law. See City ofMercer Island v. Kaltenbach, 60 Wn.2d 105, 107,
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Consol. Nos. 43076 -2 -II / 43243 -9 -11
371 P.2d 1009 ( 1962) ( whether ordinances allow a use must be determined as amatter of law);
Meridian Minerals Co. v. King County, 61 Wn. App. 195, 209 n.14, 810 P.2d 31 ( 1991) ( whether
a zoning code prohibits a land use is a question of law).6
The trial court concluded that three activities " significantly changed, altered, extended
and enlarged the existing use" and therefore constituted an expansion of use: "( 1) expanded
hours; (2) commercial, for -profit use (including military training); [ and] ( 3) increasing the noise
levels by allowing explosive devises [ sic], high caliber weaponry greater than 30 caliber and
practical shooting." CP at 4075 -76. We hold that the Club' s increased hours did not constitute
an expansion of its nonconforming use. However, we hold that the other two activities did
constitute an impermissible expansion of use.
First, the trial court found that the Club currently allowed shooting between 7: 00 AM and
10: 00 PM, seven days a week. But the trial court found that in 1993 shooting occurred during
daylight hours only, sounds of shooting could be heard primarily on the weekends and early
mornings in September (hunter sight -in season),, and hours of active shooting were considerably
fewer than today. We hold that the 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. Keller, 92 Wn.2d at 731. Instead, the nature and character of the use has
remained unchanged despite the expanded hours. By definition, this represents an intensification
6 But see Keller, 92 Wn.2d at 732, in which our Supreme Court discusses the trial court' sfinding
offact that " intensification wrought no change in the nature or character of the nonconforming
use."
14
Consol. Nos. 43076 -2 -11 / 43243- 9-11
of use rather than an expansion. We hold that the trial court' s findings do not support a legal
conclusion that the increased hours of shooting constituted an expansion of the Club' s use.
Second, the trial court made unchallenged findings that from 2002 through 2010 three
for -profit companies regularly provided a variety of firearms courses at the Club' s property,
many for active duty Navy personnel. The trial court found that one company provided training
for approximately 20 people at a time.over three consecutive weekdays as often as three weeks
per month from 2004 through 2010. Before this time, there was no evidence of for -p rofit firearm
training at the property. Because the training courses involved the operation of firearms, that use
on one level was not different than use of the property as a gun club' s shooting range. However,
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.
We hold that the trial court' s findings support the legal conclusion that the commercial
and military use of the shooting range constituted an expansion of the Club' s nonconforming
use.
Third, the trial court made unchallenged findings that the noise generated at the Club' s
property changed significantly between 1993 and the present. The trial court found:
Shooting sounds from the Property have changed from.occasional and background
in nature, to clearly audible in the down range neighborhoods, and frequently loud,
disruptive, pervasive, and long in duration. Rapid fire shooting sounds from the
Property have become common, and the rapid -f iring often goes on for hours at a
time.
CP at 4073. The trial court further found that "[ u] se of fully automatic weapons, and constant
firing of semi- automatic weapons led several witnesses to describe their everyday lives as being
15
Consol. Nos. 43076 -2 -11 / 43243 -9 -II
exposed to the ` sounds of war.' " CP at 4073. Similarly, the use of cannons and exploding
targets caused loud booming sounds. By contrast, the trial court found that rapid -fire shooting,
use of automatic weapons, and the use of cannons and explosives at the property occurred
infrequently in the early 1990s.
The types of weapons and shooting patterns used currently do not necessarily involve a
different character of use than in 1993, when similar weapons and shooting patterns were used
infrequently. However, we hold that the frequent and drastically increased noise levels found to
exist at the Club constituted a fundamental change in the use ofthe property and that this change
represented a use different in kind than the Club' s 1993 property use.
We ,hold that the trial court' s findings support a conclusion thatthe extensive commercial
and military use and dramatically increased noise levels constituted expansions of the Club' s
nonconforming use, which is unlawful under the common law and former KCC 17.455. 060.
B. VIOLATIONS OF LAND USE PERMITTING REQUIREMENTS
The trial court concluded that beginning in 1996, the Club violated various Code
provisions by failing to obtain site development activity permits for extensive property
development work —in cluding grading, excavating, and filling —a nd failing to comply with the
critical areas ordinance, KCC Title 19. The Club does not deny that it violated certain Code
provisions for unpermitted work, nor does it claim that it ordinarily would not be subject to the
permitting requirements. And it is settled that nonconforming uses are subject to subsequently
7 The Club argues that the provisions of the deed transferring the property from the County
relieved the Club from compliance with development permitting requirements within its
historical eight acres. This argument is discussed below.
16
Corisol. Nos. 43076 -2 -11 / 43243 -9 -I1
enacted reasonable police power regulations unless the regulation would immediately terminate
the nonconforming.use. Rhod -A- Zalea, 136 Wn.2d at 9, 12 ( holding that nonconforming use of
land for peat mining facility is subject to subsequent grading permit requirement).' KCC
17.530.030 states that any use in violation of Code provisions is unlawful. Accordingly, there is
no dispute that the Club' s unpermitted development work on the property constituted unlawful
uses.
C. PUBLIC NUISANCE
The Club argues that the trial court erred in ruling both that its shooting range activities
constituted a nuisance and that it was a "public" nuisance. We disagree.
The trial court concluded that the Club' s activities on the property constituted a public
nuisance in three ways: "( 1) ongoing noise caused by shooting activities, (2) use of explosives at
the Property, and (3) the Property' s ongoing operation without adequate physical facilities to
confine bullets to the Property." CP at 4075. The trial court also concluded that the Club' s
expansion of its nonconforming use and unpermitted development activities constituted a public
nuisance. More specifically, the trial court concluded that these activities constituted a public
nuisance per se, a statutory public nuisance in violation ofRCW 7.48. 010, . 120, . 130,. 140( 1),
and . 140(2) and KCC 17.455. 110, . 530. 030, and . 110. 515, and a common law nuisance based on
noise and safety issues. We hold that the trial court' s unchallenged factual findings support its
conclusion that the Club' s activities constituted a public nuisance.
1. General Principles
A nuisance is a substantial and unreasonable interference with the use and enjoyment of
another person' s. property. Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P. 3d 1089 ( 2005).
17
Consol. Nos. 43076 -241 / 43243 -9 -II
Washington' s nuisance law is codified in chapter 7.48 RCW. RCW 7.48. 010 defines an
actionable nuisance as " whatever is injurious to health ... or offensive to the senses, ... so as to
essentially interfere with the comfortable enjoyment of the life and•property." RCW 7.48. 120
also defines nuisance as an " act or omission [that] either annoys, injures or endangers the
comfort, repose, health or safety of others ... or in any way renders other persons insecure in
life, or in the use ofproperty."
The Code contains several nuisance provisions. KCC 9. 56. 020( 10) defines nuisance
similar to RCW 7.48.120. KCC 17.455. 110 prohibits land uses that " produce noise, smoke, dirt,
dust, odor, vibration, heat, glare, toxic gas or radiation which is materially deleterious to
surrounding people, properties or uses." . KCC 17. 530. 030 provides that " {a]ny use ... in
violation of this title is unlawful, and a public nuisance." Finally, KCC 17. 110. 515 states that
any violation of this title [zoning] shall constitute a nuisance per se."
If particular conduct interferes with the comfort and enjoyment of others, nuisance
liability exists only when the conduct is unreasonable. Lakey v. Puget Sound Energy, Inc., 176
Wn.2d 909, 923, 296 P. 3d 860 ( 2013). " We _determine the reasonableness of a defendant' s
conduct by weighing the harm to the aggrieved party against the social utility of the activity."
Lakey, 176 Wn:2d at 923; see also 17 WILLIAM B. STOEB'UCK.& JOHN W. WEAVER,
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 10. 3, at 656 -57 ( 2d,ed. 2004) (whether
a given activity is a nuisance involves balancing the rights of enjoyment and free use of land
between possessors of land based on the attendant circumstances). " ' A fair test as to whether a
business lawful in itself, or a particular use of property, constitutes a nuisance is the
reasonableness or unreasonableness of conducting the business or making the use of the property
18
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complained of in the particular locality and in the manner and under the circumstances of the
case.' " Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 257, 196 P.2d 352, 358 ( 1948)
quoting 46 C.J. 655, NUISANCES, § 20). Whether a nuisance exists generally is a question of
fact. Lakey, 176 Wn.2d at 924; Tiegs v. Watts, 135 Wn.2d 1, 15, 954 P.2d 877 ( 1998).
A nuisance per se is an activity that is not permissible under any circumstances, such as
an activity forbidden by statute or ordinance: 17 STOEBUCK & WEAVER, § 10. 3, at 656; see also
Tiegs, 135 Wn.2d at 13. However, a lawful activity also can be a nuisance. Grundy, 155 Wn.2d
at 7 n.5. "{ A] lawful business is never a nuisance per se, but may become a nuisance by reason
of extraneous circumstances such as being located in an inappropriate place, or conducted or
kept in an improper manner." Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 325, .154
P. 450, 451 ( 1916).
2.. Excessive Noise
The Club argues that the trial court erred in ruling that noise generated from the shooting
range' s activities constituted a nuisance. We disagree.
a. Unchallenged Findings of Fact
The Club does not assign error to any of the trial court' s findings of fact regarding noise,
but it challenges the trial court' s " conclusion" that the conditions constituted a nuisance. But the
trial court' s determination that the conditions constituted a nuisance actually is .a factual fmding.
Lakey, 176 Wn.2d at 924; Tiegs, 135 Wn.2d at 15. Therefore, our review is limited to
determining whether the record contains substantial evidence to support the trial court' s finding
that the noise generated from the Club' s activities was a substantial and unreasonable
19
Consol. Nos. 43076 -2 -I1 / 43243 -9 -11
interference with neighbors' use and enjoyment of their property. Casterline, 168 Wn. App. at
381.
The trial court made unchallenged findings that ( 1) loud rapid fire shooting occurred 7:00
AM to 10: 00 PM, seven days .a week; (2) the shooting sounds were " clearly audible in the down
range neighborhoods, and frequently loud, disruptive, pervasive, and long in duration," CP at
4073; ( 3) at times, the use of fully automatic weapons or the constant firing of semi - automatic
weapons made residents feel exposed to the " sounds of war," CP at 4073; ( 4) the Club allowed.
the use of exploding targets, including Tannerite and cannons, which caused loud "booming"
sounds in residential neighborhoods within two miles of the Club property and caused houses to
shake, CP at 4074; ( 5) the noise from the range interfered with the comfort and repose of nearby
residents, interfered with their use and enjoyment of their property, and had increased in the past
five to six years; ( 6) the interference was common, occurred at unacceptable hours, and was
disruptive of both indoor and outdoor activities; and ( 7) the description of noise interference was
representative of the experience of a significant number of homeowners within two miles ofthe
Club property.
Based on these findings of fact, the trial court found that the ongoing noise caused by the
shooting range — specifically the Club' s hours of operation, caliber of weapons allowed to be
used, use of exploding targets and cannons, hours and frequency of "practical shooting," and
automatic weapons use — was substantial and unreasonable, and therefore constituted common
law public nuisance and statutory public nuisance conditions under RCW 7.48. 120, KCC
17.530. 030, and KCC 17. 110. 515. CP at 4078. The undisputed facts were sufficient to support
this finding.
20
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The trial court heard testimony, considered the evidence, and found that the noise was
significant, frequent; and disruptive, and that it interfered with the surrounding property' s use
and enjoyment. The record contains substantial evidence to support these findings. •
Accordingly, we hold that the trial court did not err in finding that excessive noise from the
Club' s activities constituted a nuisance.
b. Noise Ordinances
The Club argues that despite the trial court' s factual findings, noise from its activities
cannot constitute a nuisance because the County failed to present evidence that it violated state
and County noise ordinances and provided no objective measurement of noise. We disagree.
Although WAC 173 -60 -040 provides maximum noise levels, related regulations
generally defer to local governments to regulate noise. See WAC•173 -60 -060, - 110. Chapter
10. 28 .KCC provides maximum permissible environmental noise levels for the various land use
zones. KCC 10.28. 030 -.040. But a violation may occur without noise measurements being
made. KCC 10.28. 010(b), . 130. KCC 10.28. 145 also prohibits a " public disturbance" noise.
The Club cites no Washington authority for the proposition that noise cannot constitute a
nuisance unless it violates applicable noise regulations and Code provisions. None of the
nuisance statutes or Code provisions require that a nuisance arise from a statutory or regulatory
violation. A nuisance exists if there has been a substantial and unreasonable interference with
the use and enjoyment of property. Grundy, 155 Wn.2d at 6. The trial court' s unchallenged
findings of fact support a determination that noise the Club generates constitutes a nuisance
regardless of whether the noise level exceeds the specified decibel level.
21
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c. Noise Exemption for Shooting Ranges
The Club argues that noise from the shooting range cannot constitute a nuisance as a
matter of law because noise regulations exempt shooting ranges. Because this argument presents
a legal issue, we review it de novo. Recreational Equip., 165 Wn. App. at 559. We disagree
with the Club.
Sounds created by firearm discharges on authorized shooting ranges are exempt from
KCC 10.28. 040 (maximum permissible environmental noise levels) and KCC 10.28. 145 ( public
disturbance noises) between the hours of 7: 00 AM and 10: 00 PM. KCC 10. 28. 050. The
Washington Department of Ecology also exempts sounds created by firearms discharged on
authorized shooting ranges from its maximum noise level regulations. RCW 70. 107. 080; WAC
173- 60- 050( 1)( b). The Code broadly defines " firearm" as " any weapon or device by whatever
name known which will or is designed to expel a projectile by the action of an explosion,"
including rifles, pistols, shotguns, and machine guns. KCC 10. 24.080. As a result, the noise
from the weapons being fired at the Club' s range falls within the noise exemption provisions of
KCC 10. 28. 050, and thus is exempt from the maximum permissible environmental noise levels
and public disturbance noise restrictions.8
But once again, the Club cites no authority for the proposition that an exemption from
noise ordinances affects the determination of whether noise constitutes a nuisance. Because a
nuisance can be found even if there is no violation of noise ordinances, the exemption from such
ordinances is immaterial.
8 However, the noise from the use of exploding targets, including Tannerite targets, is not noise
from the discharge of firearms and therefore is not exempt from the noise ordinances.
22
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The Club also argues that the exemption of shooting range noise from the state and local
noise ordinances should be considered an express authority to make that noise. This argument is
based on RCW 7.48. 160, which provides that nothing done or maintained under the express
authority of a statute can be deemed a nuisance.
Our Supreme Court addressed a similar issue in Grundy. In that case, a private person
brought a public nuisance claim against Thurston County and a private nuisance claim against
her neighbor. for raising his seawall which left her property vulnerable to flooding. Grundy, 155
Wn.2d at 4 -5. The public nuisance claim was based on assertions that Thurston County had
wrongfully and illegally allowed the project by deciding that the seawall qualified for an
administrative exemption from substantial permitting requirements. Grundy, 155 Wn.2d at 4 -5.
Rather than challenge Thurston County' s administrative decision, the objecting neighbor sought
to abate the seawall as a nuisance. Grundy, 155 Wn.2d at 4 -5. Although the Supreme Court did
not reach the public nuisance issue, it disagreed with the Court of Appeals' suggestion that the
public nuisance was foreclosed based on the rule that nothing which is done or maintained under
the express authority of a statute can be deemed a nuisance. Grundy, 155 Wn.2d at 7 n.5. The
Supreme Court stated that a lawful action may still be a nuisance based on the unreasonableness
ofthe locality, manner of use, and circumstances of the case. Grundy, 155 Wn.2d at 7 n.5.
We interpret RCW 7.48. 160 as requiring a direct authorization of action to escape the
possibility of nuisance. See Judd v. Bernard, 49 Wn.2d 619, 621, 304 P.2d 1046 ( 1956).( State' s
eradication of fish in lake is not a nuisance because a statute authorizes the fish and wildlife
department to remove or kill fish for game management purposes). There is no such direct
23
Consol. Nos. 43076 -2 -11 / 43243 -9 -II
authorization here. We hold that the noise exemption and RCW 7.48. 160 do not foreclose the
County' s nuisance claim basedon noise.
Finally, the Club argues that even if the noise exemption does not automatically
determine whether a nuisance exists, the noise statutes and ordinances. (including the shooting
range exemption) portray the community standards. The Club claims that the exemption reflects
the community' s decision that authorized shooting range sounds during designated hours are not
unreasonable. Regulations affecting land use may be relevant in "determining whether one
property owner has a reasonable expectation to be free of a particular interference resulting from
use ofneighboring property" 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON
PRACTICE: TORT LAW AND PRACTICE § 3. 13, at 150 ( 4th ed. 2013). But the shooting range
exemption is merely one factor to consider in determining the reasonableness of the Club' s
activities. The exemption does not undermine the trial court' s findings that the Club' s activities
constituted a nuisance.
We hold that the trial court' s unchallenged factual findings supported its determination
that the noise generated from the Club' s activities constituted a statutory and common law
nuisance.
3. Safety Issues
The Club argues that the trial court erred in ruling that safety issues associated with the
shooting range' s activities constituted a nuisance. We disagree because the trial court' s
unchallenged factual findings support its ruling.
24
Consol. Nos. 43076 -2 -I1 / 43243 -9 -11
a. Unchallenged Findings of Fact
The Club did not assign error to any of the trial court' s findings of fact regarding safety,
but it challenges the trial court' s " conclusion" that the conditions constituted a nuisance.
However, as discussed above regarding noise, the trial court' s determination that the unsafe
conditions constituted a nuisance actually is a factual finding. Lakey, 176 Wn.2d at 924; Tiegs,
135 Wn.2d at 15. Therefore, once again our review is limited to determining whether the record
contains substantial evidence to support the trial court' s finding that safety issues arising from
the Club' s activities were a substantial and unreasonable interference with neighbors' use and
enjoyment of their property. Casterline, 168 Wn. App. at 381.
The trial court made unchallenged findings that ( 1) the Club' s property was a " blue sky"
range, with no overhead baffles to stop accidently or negligently discharged bullets, CP at 4070;
2) more likely than not, bullets have escaped and will escape the Club' s shooting areas and
possibly will strike persons or property in the future based on the firearms used at the range,
vulnerabilities of neighboring residential property, allegations of bullet impacts in nearby
residential developments, evidence of bullets lodged in trees above berms, and the opinions of
testifying experts; and ( 3) the Club' s range facilities, including safety protocols, were inadequate
to prevent bullets from leaving the property.
Based on these findings of fact, the trial court determined that the ongoing operation of
the range without adequate physical facilities to confine bullets to the property creates an
ongoing risk of bullets escaping the property to injure persons and property and constitutes a
public nuisance under RCW 7. 48. 120, KCC 17. 530. 030, and KCC 17. 110. 515, The undisputed
facts were sufficient to support a finding that the safety issues arising from the Club' s activities
25
Consol. Nos. 43076 -2 -II / 43243 -9 -II.
were unreasonable and constituted a " substantial and unreasonable interference" with the
surrounding property' s use and enjoyment.' Grundy, 155 Wn.2d at 6.
The trial court heard testimony, considered the evidence, and found that the safety issues
were significant and interfered with the surrounding property' s use and enjoyment. Accordingly,
we hold that the evidence was sufficient to support the trial court' s determination that safety
issues from the Club' s activities created a nuisance.
b. Probability of Harm
The Club also argues that the trial court' s findings do not support its conclusion that the
range is a safety nuisance because the trial court did not find that any bullet from the Club had
ever struck a person or nearby property. Similarly, the Club points out that the trial court. found
only that it was possible, not probable, that-bullets could strike persons or property, and argues
that the mere possibility of harm cannot constitute a safety nuisance. We disagree.
The Club provides no authority that a finding of actual harm is necessary to support a
determination that an activity constitutes a safety nuisance. And contrary to the Club' s
argument, nuisance can be based on a reasonable fear of harm. " Where a defendant' s conduct
causes a reasonable fear of using property, this constitutes an injury, taking the form of an
interference with property." Lakey, 176 Wn.2d at 923. "[ T]his fear need not be scientifically
founded, so long as it is not unreasonable." Lakey, 176 Wn.2d at 923. •
In Everett v. Paschall, our Supreme Court enjoined as a nuisance a tuberculosis
sanitarium maintained in a residential section of the city where the reasonable fear and dread of
the disease was such that it depreciated the value of the adjacent property, disturbed the minds of
residents, and interfered with the residents' comfortable enjoyment of their property despite that
26
Consol. Nos. 43076 -2 -II / 43243 -9 -II
the sanitarium imposed no real danger. 61 Wash. 47, 50 -53, 111 P. 879 ( 1910). And in Ferry v.
City ofSeattle, the Supreme Court affirmed the trial court' s decision to enjoin as a nuisance the
erection of a water storage reservoir in a city park due to residents' very real and present
apprehension that it may collapse and flood the neighborhood damaging property and imperiling
residents. 116 Wash. 648, 662- 63, 666, 203 P. 40 ( 1922). The court held that "the question of
the reasonableness of the apprehension turns again, not only on the probable breaking of the
reservoir, but the realization of the extent of the injury which would certainly ensue;. that is to say
the court will look to consequences in determining whether the fear existing is reasonable."
Ferry, 116 Wash. at 662.
In any event, whether an activity causes actual or threatened harm or a reasonable fear is
not the dispositive issue. The crucial question for nuisance liability is whether the challenged •
activities are reasonable when weighing the harm to the aggrieved party against the social utility
of the activity. Lakey, 176 Wn.2d at 923. For instance, in Lakey, neighbors of Puget Sound
Energy (PSE) alleged that the electromagnetic fields (EMFs) emanating from its substation
constituted a private and public nuisance. 176 Wn.2d at 914. Our Supreme Court concluded that
even though the neighbors had demonstrated reasonable fear from EMF exposure, as a matter of
law PSE' s operation of the substation was reasonable based on weighing the harm against the
social utility. Lakey, 176 Wn.2d at 923 -25.
Here, the trial court found after weighing extensive evidence that the Club' s range
facilities and safety protocols were inadequate to prevent bullets from leaving the property and
that more likely than not bullets will escape the Club' s shooting areas. The trial court also found
that the Club' s property was close to " numerous residential properties and civilian populations."
27
Consol. Nos. 43076 -2 -11 / 43243 -9 -II
CP at 4078. These undisputed facts support the trial court' s determination that the Club' s
shooting activities created a risk of property damage and personal injury to neighboring
residents, and therefore were unreasonable under the circumstances.
The trial court' s unchallenged factual findings support its implicit conclusion that the
Club' s activities were unreasonable with respect to safety issues. We hold that the trial court' s
factual findings supported its determination that the safety issues arising from the Club' s
activities constituted a statutory and common law nuisance.
4. Expansion of Use/Unpermitted Development
The Club does not directly challenge the trial court' s ruling that the Club' s unlawful
expansion of its nonconforming use and violation of various Code provisions represented a
public nuisance. KCC 17. 110. 515 provides that " any violation of this title shall constitute a
nuisance, per se." KCC 17.530.030 provides that "any use ... in violation of this title is
unlawful, and apublic nuisance." We held above that the Club' s expansion of its
nonconforming use violated former KCC 17. 455. 060. Similarly, the Club' s unpermitted
development work violated Code provisions. See, e.g., KCC 12. 10. 030 ( activities requiring site
development activity permits). Accordingly, it is undisputed that the Club' s use expansion and
unpermitted development work at the property constituted a nuisance as a matter of law.
5. Existence of a Public Nuisance
The County brought this action against the Club on behalf of the public. As a result, in
order to prevail the County must shownot only that the Club' s activities constitute a nuisance,
but that they constitute apublic nuisance. The Club argues that the trial court erred in
determining that the Club' s activities constituted a public nuisance. We disagree.
28
Consol. Nos. 43076 -2 -1I / 43243 -9 -11
RCW 7. 48. 130 provides that a public nuisance is one that " affects equally the rights of an
entire community or neighborhood, although the extent of the damage may be unequal." An
example of a public nuisance was presented in Miotke v. City ofSpokane, where the city of'
Spokane discharged raw sewage into the Spokane River. 101 Wn.2d 307, 309, 678 P.2d 803
1984). The plaintiffs were the owners of lakefront properties below a dam on the river. Miotke,
101 Wn.2d at 310. The court held that the release constituted a public nuisance because it
affected the rights of all members of the community living along the lake shore. Miotke, 101
Wn.2d at 331.
a. Excessive Noise
The trial court made no express ruling that the excessive noise from the Club' s activities
affected equally the rights of an entire community. But the trial court made a finding accepting
as persuasive the testimony of current and former neighbors who described noise conditions that
interfere[ d] with the comfort and repose of residents and their use and enjoyment of their real
properties" and who " describe[ ed] their everyday lives as being exposed to the `sounds of war.' "
CP at 4073. The trial court also found that "[ t]he testimony of County witnesses who are current
or former neighbors and down range residents is representative of the experience of a significant
number of home owners within two miles of the [ Club' s] Property." CP at 4073. This finding
implicitly identifies the relevant " community" as the area within two miles of the Club. Finally, .
the trial court cited to RCW 7. 48. 130 ( and other nuisance statutes) in entering a conclusion of
law stating that the Club' s property " has become and remains a place violating the comfort,
repose, health and safety of the entire community or neighborhood." CP at 4078. ( Emphasis
added.)
29
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The Club argues that the noise conditions are not a public nuisance because the evidence
shows that noise from the Club does not, affect the rights of all members of the community
equally. The Club points to testimony from witnesses that stated that the noise from the Club did
not disturb them. However, every neighbor testifying discussed the noise caused by the Club,
which the trial court found affected all property within atwo mile radius of the Club. hi this
respect, the facts here are similar to those in Miotke, where the pollutants affected every
Lakefront property owner. The fact that some residents were not much bothered by the noise
does not defeat the public nuisance claim because it relates to the extent of damage caused by the
condition, which need not be equal.
We hold that the trial court' s unchallenged factual findings support its determination that
noise from the Club constituted a public nuisance.
b. Safety Issues
Regarding safety, the trial court entered findings referencing the testimony of range
safety experts and finding that "more likely than not, bullets will escape the Property' s shooting
areas and will possibly strike persons or damage private property in the future." CP at 4070. •
The trial court also found that the Club' s facilities were inadequate to contain bullets inside the
property. However, once again the trial court made no factual findings regarding safety that
specifically addressed the public nuisance question.
The Club argues that fear of bullets leaving the Club' s property does not equally affect all
members of the community. As with the noise, the Club argues that some witnesses testified that
they were not afraid of the Club. However, the trial court.citedto RCW 7.48.130 in stating that
the Club' s property " has become and remains a place violating the ... safety of the entire
30
Consol. Nos. 43076 -2 -I1 / 43243 -9 -11
community or neighborhood." CP at 4078 ( Emphasis added.) And the trial court' s finding that
it was likely that bullets would escape the shooting areas and possibly cause injury or damage
supports a conclusion that the risk of injury or damage is equal in all areas where bullets might
escape. Although the trial• court did not address the exact parameters ofthe affected area, the
failure to identify the applicable community does not preclude a public nuisance finding.
Wehold that the trial court' s unchallenged factual findings support its determination that
safety issues constituted a public nuisance.
c. Expansion of Use/Unpermitted Development
As noted above, KCC 17. 530.030 provides that any use in violation of the zoning
ordinances is a public nuisance, and KCC 12.32.010 provides that violation of certain permitting
requirements is a public nuisance. This is consistent with the principle that one type ofpublic
nuisance involves an activity that is forbidden by statute or ordinance. 17 STOEBUCK &
WEAVER, § 10. 3, at 663. As a result, the trial court ruled that the Club' s unpermitted
development work constituted a public nuisance. •
The Club does not directly challenge the trial court' s finding of a public nuisance on this
basis. Because the Club' s expansion of use and unpermitted development work violated various
Code provisions, it is undisputed that the Club' s unpermitted development work constituted a
public nuisance..
D. EFFECT OF DEED OF SALE
The Club argues that even if its activities were unlawful as discussed above, the language
of the deed of sale transferring the property title from the County to the Club prevents the
County from challenging any part ofthe Club' s status or operation as it existed in 2009,
31
Consol. Nos. 43076 -2 -11 / 43243 -9 -11
including expansion of its nonconforming use status, permitting violations, and nuisance
activities. According to the Club, the deed represented a settlement of any potential disputes
regarding the Club' s nonconforming use, including any Code violations, and was an affirmation
that the Club may operate as it then existed and improve its facilities within the historical eight
acres. The Club argues that this settlement is enforceable as an accord and satisfaction
affirmative defense or a breach of contract counterclaim. The Club also argues that the deed
provisions and extrinsic evidence estop the County from attempting to terminate the Club' s
nonconforming use or denying that the Club' s then -e xisting facilities and operations were not in
violation of the Code or a public nuisance.
The trial court ruled that the deed did not prevent or estop the County from challenging
the Club' s unlawful uses of its property. We agree with the trial court.
1. Standard of Review
Interpretation of a deed is a mixed.question of fact and law. AffiliatedFMIns. Co. v.
LTK Consulting Servs., Inc., 170 Wn.2d 442, 459 n.7, 243 P. 3d 521 ( 2010). Our goal is to
discover and give effect to the parties' intent as expressed in the deed. Harris v. Ski Park Farms,
Inc., 120 Wn.2d 727, 745, 844 P.2d 1006 ( 1993).. The parties' intent is a question of fact and the
legal consequence of that intent is a question of law. Affiliated FMIns., 170 Wn.2d at 459 n.7.
We defer to the trial court' s factual findings if they are supportedby substantial evidence and
review questions of law and conclusions of law de novo.. Newport Yacht Basin Ass 'n ofCondo.
Owners v. Supreme Nw. Inc., 168 Wn. App. 56, 64, 277 P. 3d 18 ( 2012); Casterline, 168 Wn.
App. at381.
32
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2. Accord and Satisfaction Defense/Breach of Contract Counterclaim
The Club argues that the trial court erred in failing to interpret the deed as incorporating a
covenant by the County to allow the Club to continue the shooting range as it then existed,
enforceable under contract law, or as a settlement of potential land use disputes under principles •
of accord and satisfaction.9 The Club relies on ( 1) deed clauses providing for improvement and
expansion ofthe shooting range, (2) a claimed implied duty to allow the Club to perform the
deed' s public access clause, ( 3) a claimed implied duty not to frustrate the purpose ofthe deed —
for the Club to continue operating the shooting range, and ( 4) extrinsic evidence that allegedly
confirms the Club' s interpretation of the parties' intent. We disagree with the Club.
a. Improvement and Expansion Clauses
The deed addresses improvement and expansion of the shooting range. The Club refers to
the " improvement clause," which provides:
The Club] shall confine its active shooting range facilities on the property
consistent with itshistoricaluse of approximately eight (8) acres of active shooting
ranges with the balance of the property serving as safety and noise buffer zones;
provided that [ the Club] may upgrade or improve the property and/ or facilities
within the historical approximately eight ( 8) acres in a manner consistent with
modernizing" the facilities consistent with management practices for a modem
shooting range.
CP at 4088. The deed also contains an " expansion clause," which states that "[ the Club] may
also apply to Kitsap County for expansion beyond the historical eight (8) acres, for `supporting'
facilities for the shooting ranges or additional recreational or shooting facilities, provided that
9 The Club also argues that the deed guaranteed its right to continue operating as a
nonconforming shooting range as it existed at the time of the deed. Because we hold below that
the Club' s unlawful property use does not terminate its nonconforming use status, we need not
address this issue.
33
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said expansion is consistent with public safety, and conforms with the terms and conditions [ in
this deed] ... and the rules and regulations• of Kitsap County for development of private land."
CPat4088.
The Club argues thatthe juxtaposition ofthe improvement clause and the expansion
clause (which requires an application and compliance with rules and regulations) means that
improvements within the historical eight acres are allowed uses and do not need to comply with
county development regulations. We disagree.
First, the improvement clause makes no reference to the Club' s existing use, except to
limit the Club' s use to eight acres. Specifically, the clause says .nothing about the lawfulness of
the Club' s existing use, the County' s position regarding that use, or the settlement of any
potential land use disputes.
Second, the language regarding improvements refers only to future modernization. The
clause does not ratify unpermitted development activities. that occurred in the past. Even if the
two clauses could be interpreted as waiving any Code requirements for future work, the deed by
its clear language does not apply to past work. And most of the development work the trial court
referenced in its decision took place before the deed' s execution.
Third, the deed states that the conveyance of land is made subject to certain covenants .
and conditions, " the benefits of which shall inure to the benefit of the public and the burdens of
which shall bind the [ Club]." CP at 4087. The improvement clause is one such restrictive
covenant: it restricts the Club' s property use to its active shooting range facilities consistent with
its eight acres of historical use and then makes an exception for certain improvements within the
eight acres and further expansion by application. It would be unreasonable to view a restrictive
34
Consol. Nos. 43076 -2 -11 / 43243 -9 -I1
covenant in the deed as an affirmative ratification of past development and a waiver of future
development permitting violations. Accordingly, we reject the Club-'s argument that the
improvement and expansion clauses preclude the County from challenging the Club' s shooting
range activities.
b. Public Access Clause
The deed provides that access by the public to the Club' s property must be offered at
reasonable prices and on a nondiscriminatory basis. The Club argues that the trial court erred in
failing to give effect to the County' s implied duty to allow the Club to perform the public
access provision in the [ d] eed." Br. of Appellant at 43. The Club states that it was depending on
the County' s approval of its then- existing facilities and operations when.it agreed to provide
public access. The Club also claims that the County' s attempt to shut down the shooting range
would prevent the Club from performing its side of the contract. We disagree.
The language in the public access clause does not restrict the County from enforcing
zoning regulations or seeking to abate nuisance conditions on the conveyed property. And the
Club has cited no authority for the proposition that its agreement to provide public access
somehow prevents the County from taking actions that would limit Club activities. Accordingly,
we reject the Club' s argument that the public access clause precludes the County from
challenging the Club' s shooting range activities.'°
Because we hold below that terminating the Club' s nonconforming use is not an appropriate
remedy for the Club' s unlawful activities, we need not address whether the public access clause
would prevent the County from shutting down the Club.
35
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c. Implied Duty Regarding Frustration of Purpose
The Club contends that the trial court erred in " failing to give effect to the County' s
implied duty not to frustrate the [ d] eed' s purpose of allowing the Club to continue operating its
nonconforming shooting range as it existed within the historical eight acres of active use." Br. of
Appellant at 45. The Club argues that the deed expressed the understanding that the Club was
purchasing the property for that purpose and that as the grantor /seller, the County implied that
what was sold was suitable for that purpose and bore the risk if it was not. We disagree.
Under the Code, the Club did have the right to continue its nonconforming use. KCC
17. 460.020. But the County' s lawsuit alleged that the Club had expanded outside its
nonconforming use right, developed the land without proper permits, and operated the range in a
manner that constituted a nuisance. Those alleged conditions are all within the Club' s control.
The County' s sale of the land even for the purpose of facilitating the 'Club' s continued existence
does not prevent the County from insisting that it be operated in a manner consistent with the
law. We reject the Club' s argument.
d. Extrinsic Evidence
The Club argues that extrinsic evidence demonstrated that the County intended to resolve
all land use issues at the Club' s property by the terms of the deed. The Club claims that (1) the
County' s statements in conjunction with the deed were an expression ofits intent to approve and
ratify any potentially actionable existing conditions on the property, and ( 2) the County' s
knowledge of potential issues involving the Club shows that the County intended to settle or
waive those. issues with the deed. We hold that the record supports the trial, court' s factual
findings.
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Consol. Nos. 43076 -2 -II / 43243 -9 -II
The Club relies on four pieces of extrinsic evidence. First, the minutes and recordings of
the Board' s meeting include statements by a county official and two county commissioners in
support of the land sale so that its existing use as a shooting range may continue. Second, a
Board resolution supported the Club' s continued shooting.range operation and stated that it is " in
the best economic interest of the County to provide that [the Club] continue to operate with full
control over the property on which it is located." CP at 858. Third, a letter from one of the
county commissioners entered into the public record stated that the Board earlier had assured a
state agency (that was considering providing grant funds to the Club), that the "[ Club] and its
improvements were not at odds with the County' s long -term interest in the property." CP at
3793. Fourth, the evidence shows that at the time the deed was executed the County was aware
of possible existing permitting violations, unlawful expansion, and complaints from neighbors
about the Club.
However, the trial court' s findings show that it considered this evidence and concluded
that the evidence did not support the Club' s arguments. The Club argues that the trial court
erroneously found that "[ t]he only evidence produced at trial to discern the County' s intent at the
time of the 2009 Bargain and Sale Deed was the deed itself," CP 4058, because the Club
produced substantial evidence bearing on the County' s intent and the trial court failed to consider
it. But we interpret the court' s factual finding to mean that the trial court considered the deed as
the only credible evidence of the County' s intent. The finding cannot be read to mean that the
deed was the only evidence produced because it is clear that the trial court did consider other
evidence bearing on the parties' intent.
37
Consol. Nos. 43076 -2 -II / 43243 -9 -1I
After considering the extrinsic evidence, the trial court found that ( 1) the Board' s minutes
and recordings do not reveal an intent to settle disputed claims or land use decisions or land use
status at the property, and (2) the parties did not negotiate for the resolution of potential civil
violations of the Code at the property or to resolve the property' s land use status. 11 The trial
court also made an unchallenged factual finding that the deed does not identify or address any
then- existing disputes between the Club and County. The Club disagrees with these findings, but
the weight given to certain evidence is within the trial court' s discretion.
In essence, the Club is asking us to substitute our view of the evidence for the trial court' s
findings. That is not our role. •
W]here a trial court finds that evidence is insufficient to persuade it that something
occurred, an appellate court is simply not permitted to reweigh the evidence and
come to a contrary finding. It invades the province ofthe trial court for an appellate
court to find compelling that which the trial court found unpersuasive. Yet, that is
what appellant wants this court to do. There was conflicting evidence in this case.
The trial judge weighed that conflicting evidence and. chose which of it to believe.
That is the end of the story.
Bale v. Allison, 173 Wn. App. 435, 458, 294 P.3d 789 (2013) ( quoting Quinn v. Cherry Lane
Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P. 3(1266 (2009)) ( emphasis omitted).
Accordingly, we reject tlae Club' s argument that extrinsic evidence supports its interpretation of
the deed language.
11 The County argues that these findings of fact should be treated as verities because the Club did
not assign error to them in its initial brief and fails to assign error to the trial court' s failure to
adopt any of its proposed findings. RAP 10. 3( g), 10.4. However, the County acknowledges and
responds to the findings of fact that the Club disputes inthe body of its brief —fi ndings 23, 35,
26, and 57. Although the Club violated. RAP 10.3( g), we exercise our discretion to waive the
Club' s failure to strictly comply with the procedural rules. See In re Disciplinary Proceedings
Against Conteh, 175 Wn.2d .134, 144, 284 P.3d. 724 (2012).
38
Consol. Nos. 43076 -2 -II / 43243 -9 -11
3. Estoppel Defense
The Club assigns error to the trial court' s denial of its equitable estoppel defense.
Apparently the Club contends that the County is estopped from asserting all of its claims. We
need not decide whether the County should be estopped from seeking termination of the Club' s
nonconforming use because we hold below that termination is not an appropriate remedy for the
Club' s allegedly prohibited activities. But we disagree that estoppel applies to the County' s
other claims.
Equitable estoppel against a governmental entity requires a party to prove five elements
by clear and convincing evidence:
1) a statement, admission, or act by the party to be estopped, which is inconsistent
with its later claims; ( 2) the asserting party acted in reliance upon the statement or
action; ( 3) injury would result to the asserting party if the other party were allowed
to repudiate its prior statement or action; ( 4) estoppel is ` necessary to prevent a
manifest injustice'; and (5) estoppel will not impair governmental functions.
Silverstreak, Inc. y. Dep' t ofLabor & Indus., 159 Wn.2d 868, 887, 154 P.3d 891 ( 2007) ( quoting
Kramarevcky v. Dep' t ofSoc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 ( 1993)).
Whether equitable relief is appropriate is a question of law. Niemann v. Vaughn Cmty. Church,
154 Wn.2d 365, 374, 113 P.3d 463 ( 2005).
The Club' s estoppel defense is not viable because the County' s enforcement of its Code
and nuisance law is not inconsistent with its earlier position. The County' s general support for
the shooting range' s continued existence is not inconsistent with its current insistence that the
range conform to development permitting requirements and operate in a manner not constituting
a nuisance. Moreover, the County' s enforcement ofits zoning code and nuisance law is a
government function. See City ofMercer Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d
39
Consol. Nos. 43076 -2 -11 / 43243 -9 -I1
80 ( 1973). If the County was estopped from enforcing those laws, it would certainly impair
governmental functions. Finally, estoppel is not required to prevent manifest injustice here,
especially because the Club' s allegation of the County' s inconsistency is tenuous.
The Club has failed to prove the essential elements of estoppel. We hold that the trial
court did not err in rejecting the Club' s estoppel defense.
REMEDYFOR THE CLUB' S UNLAWFUL USE
A. TERMINATION OF NONCONFORMING USE
The Club argues that the trial court erred in concluding that an unlawful expansion of the
Club' s nonconforming Ilse, unpermitted development activities, and public nuisance activities
terminated the Club' s legal nonconforming use of the property as a shooting range. As a result,
the Club argues that the trial court erred.in issuing a permanent injunction shutting down the
shooting range until the Club obtains a conditional use permit. We agree, and hold that the
termination of the Club' s nonconforming use is not the appropriate remedy for its unlawful uses.
1. Standard of Review
Injunctive relief is an equitable remedy, and we review a. trial court' s decision to grant an
injunction and the terms of that injunction for an abuse of discretion. Early Dawn Estates, 173
Wn. App. at 789. However, whether termination of a property' s nonconforming use is an
appropriate remedy for unlawful uses of that property is a question of law, which we review de
novo. See King County DDES , 177 Wn.2d at 643 ( reiterating that legal questions " are reviewed
de novo. "). Iftermination of the nonconforming use is an appropriate remedy as a matter of law,
we apply the abuse of discretion standard in reviewing the trial court' s decision to select that
remedy.
40
Consol. Nos. 43076-2 -11 / 43243 -9 -II
2. Kitsap County Code
The KCC chapter on nonconforming uses, KCC 17.460.010, allows nonconforming uses
to continue until they are removed or discontinued. KCC 17.460.020 further states that a
nonconforming use may be continued as long as it is " otherwise lawful." The County argues that
this ordinance allows termination of the Club' s operation as a shooting range because the Club' s
unlawful expansion, permitting violations, and/ or nuisance prevents the nonconforming use from
being " otherwise lawful." We disagree with the County' s interpretation of the Code.
First, based on the plain language of the Code it is the nonconforming use that must
remain lawful. KCC 17.460. 020. A "use" of land means " the nature of occupancy, type of
activity or character and form of improvements to which land is devoted." KCC 17. 110.730.
The Club' s use of the property is as a shooting range. Therefore, the question under KCC
17. 460.020 is whether a shooting range is a lawful use of the Club' s property (other than the fact
it does not conform to zoning regulations), not whether specific activities at the range are
unlawful. For instance, termination of the Club' s nonconforming use may be an appropriate
remedy under KCC 17.460.020 if that use would not be allowed to continue under any
circumstances, such as if the County or the State passed a law prohibiting all shooting ranges.
But here the use of the Club' s property as a shooting range remains lawful, and therefore any
unlawful expansion of use, permitting violations, or nuisance activities cannot trigger
termination of the otherwise lawfiil nonconforming use.
Second, the penalty and enforcement provisions ofthe Code do not support a termination
remedy. KCC 17. 530. 020, which is a section entitled " penalties" in the enforcement chapter of
the zoning title, provides that violation of any provision of the zoning title constitutes a civil
41
Consol. Nos. 43076 -2 -11 / 43243 -9 -11
infraction and that the County may seek civil penalties. There is no mention of forced
termination of an existing nonconforming use based on a Code violation. And the Code
expressly provides for a less drastic remedy. KCC 17. 530.050, which also is within the
enforcement chapter, provides that " the director may accept a written assurance of
discontinuance of any act in violation of this title from any person who has engaged in such act."
In support of this position, we note that the County' s chief building official Jeffrey Rowe
testified that the Code allows a landowner to get back into conformity by retracing a prohibited
expansion, enlargement, or change of use.
Specifically regarding nuisance, KCC 17.530. 030 provides that any person may bring an
action to abate a nuisance. But there is no authority supporting a proposition that an activity on
property that constitutes a nuisance operates to terminate that property' s nonconforming use
status.
Third, the County' s interpretation allowing any expansion of use, permitting violation, or
nuisance activity to terminate a nonconforming use would eviscerate the value and protection
provided by a legal nonconforming use. Nonconforming use status would have little value if an
expansion of that use would prevent the owner from continuing the lawful use in place before the
expansion. And this would be contrary to the Code' s stated purpose in KCC 17.460.010: to
permit nonconforming uses to continue.
We hold that the Code does not provide for a termination remedy for Code violations or
unlawful expansion of nonconforming uses.
42
Consol. Nos. 43076 -2 -II / 43243 -9 -11
2. Common Law
The common law also does not support the trial court' s remedy. We have found no
Washington case holding that an unlawful expansion of a nonconforming use, permitting
violations, or nuisance activities terminates a nonconforming use. Further, no Washington case
has even suggested such a remedy. In Keller, the plaintiffs challenged as unlawful the
enlargement of a chlorine manufacturing facility that was a nonconforming use. 92 Wn.2d at
728 -29. Although the Supreme Court did not specifically address the remedy for an unlawful
expansion, it gave no indication that the entire facility could be shut down if the enlargement
constituted an unlawful expansion.
Courts in other jurisdictions, have concluded that in the absence of statutory authority, an
unlawful expansion of a nonconforming use does not operate to terminate that use. Dierberg v.
Bd. ofZoning Adjustment ofSt. Charles County, 869 S.W.2d 865, 870 (Mo. App. 1994); Garcia
v. Holze, 94 A.D.2d 759, 462 N.Y.S. 2d 700, 703 ( 1983). Instead, the remedy is to discontinue
the activities that exceed the lawful nonconforming use. See Dierberg, 869 S. W.2d at 870.
Similarly, no Washington court has held that permitting violations associated with a
nonconforming use terminates that use. In Rhod -A- Zalea, the Supreme -Court held that the owner
of a peat mine operated as a nonconforming use had violated permitting requirements for grading
activities. 136 Wn. 2d at 19 -20. Again the court did not specifically address the remedy for this
violation, but did not even suggest that the failure to obtain required permits would allow
termination ofthe mining operation.
And no Washington court has held that nuisance activities associated with a
nonconforming use terminate that use. Historically, public nuisances were prosecuted only
43
Consol. Nos. 43076 -2 -II / 43243 -9 -II
criminally (fine or jail time), but in more modern times legislators have enacted measures
emphasizing abatement of the nuisance over assessing criminal penalties. 8 THOMPSON ON REAL
PROPERTY, SECOND THOMAS EDITION .§ 73. 08( d), at 479 -80 ( David A. Thomas ed. 2013). See
also RCW 7.48. 200 ( providing that "[ t]he remedies against a public nuisance are: Indictment or
information, a civil action, or abatement ").
3. Appropriate Remedy
We hold that termination of the Club' s nonconforming use status is.not the proper
remedy even though the Club did expand its use, engage in unpermitted development activities,
and engage in activities that constitute a nuisance. Neither the Code nor Washington authority
supports this remedy, and such a remedy would impermissibly interfere with legal
nonconforming uses.
In order to implement its conclusion that the Club' s nonconforming use had terminated,
the trial court issued an injunction enjoining the Club from operating a shooting range on its
property until it obtained a conditional use permit for a private recreational facility or some other
authorized use. We vacate this injunction because it is based on an incorrect conclusion that the
nonconforming use was terminated.
The appropriate remedy for the Club' s expansion of its nonconforming use must reflect
the fact that some change in use — "intensification" — is allowed and only " expansion" is
unlawful. For the permitting violations, the Code provides the appropriate remedies for the
Club' s permitting violations. See KCC 12.32. 010, . 040, . 050; KCC 19. 100. 165. We address the
appropriate remedy for public nuisance in the section below.
44
Consol. Nos. 4.3076 -2 -I1 / 43243 -9 -II
We remand to the trial court to determine the appropriate remedies for the Club' s
expansion of its nonconforming use and the Club' s permitting violations.
B. REMEDY FOR PUBLIC NUISANCE
The trial court issued a second permanent injunction designed to abate the public
nuisance conditions at the Club' s property, which prohibited the use of fully automatic firearms,
rifles of greater than nominal .30 caliber, exploding targets and cannons, and use of the property
as an outdoor shooting range before 9: 00 AM or after 7: 00 PM. The Club argues that the court
erred in entering the injunction because the activities enjoined do not necessarily constitute a
nuisance, and therefore the injunction represents the trial court' s arbitrary opinions regarding
how a shooting range should be operated. We disagree. .
The trial court•had the legal authority to enter an injunction designed to abate a public
nuisance under both RCW 7.48. 200 and KCC 17. 530. 030. Therefore, the only issue is whether
the terms of the injunction were appropriate. Injunctive relief is an equitable remedy, and we
review a trial court' s decision to grant an injunction and the terms of that injunction for an abuse
of discretion. Early Dawn Estates, 173 Wn. App. at 789.. An abuse of discretion occurs when
the trial court' s decision is manifestly unreasonable or is exercised on untenable grounds or for
untenable reasons. Recreational Equip., 165 Wn. App. at 559. We will not reweigh the trial
court' s equitable considerations. Recreational Equip., 165 Wn. App. at 565.
Here, the trial court' s findings are supported by substantial evidence and those findings support
its discretionary determination that it should grant equitable relief. Therefore, we hold that t.h e
trial court did not abuse its discretion in issuing this injunction as a remedy for the Club' s
45
Consol. Nos. 43076 -2 -II / 43243 -9 -1I
nuisance activities. The limitation of the activities is reasonably related to the noise - related
nuisance and possibly to the safety -r elated nuisance.
The trial court also issued a warrant of abatement, with terms to be determined at a later
hearing. The Club argues that this warrant of abatement was issued in error because it fails to set
forth the conditions of abatement. However, the trial court had statutory authority to issue the
warrant of abatement, and under the circumstances it was not inappropriate to defer entry of
specific details.
ISSUES RAISED ONLYBYAMICUS BRIEFS
Two amicus briefs raise additional arguments against terminating the Club' s
nonconforming use right. The Kitsap County. Alliance of Property Owners argues that
substantive due process rights prevents the Code from being interpreted to terminate the Club' s
nonconforming use right. And the National Rifle Association argues that such a remedy violates
the Second Amendment. Neither of these issues was raised at the trial court or in the parties'
appellate briefs.
We do not need to consider the arguments raised solely by. amici. See, e.g., State v.
Hirschfelder, 170 Wn.2d 536, 552, 242 P.3d 876 (2010) ( courts " need not address issues raised
only by amici "); State v. Jorden, 160 Wn.2d 121, 128 n.5, 156 P. 3d 893 ( 2007) (court is " not
bound to consider argument raised only by amici "). Moreover, because we hold that termination
of the Club' s nonconforming right was error, there is no need to consider these constitutional
arguments. We refrain from deciding constitutional issues if the case can be decided on non -
constitutional grounds. Isla Verde Intl. Holdings, Inc. ,v . City ofCamas, 146 Wn.2d 740, 752,
49 P.3d: 867 (2002).

Outcome: We affirm the trial court' s rulings that ( 1) the Club' s commercial use of the property and
dramatically increased noise levels constitute an impermissible expansion of its nonconforming
use; ( 2) the Club' s development work unlawfully violated various County land use permitting
requirements; and ( 3) the excessive noise, unsafe conditions, and unpermitted development work
constituted a public nuisance. We reverse the trial court' s ruling that increased hours of
operation constitute an expansion of its nonconforming use.
Regarding the remedy for the Club' s unlawful activities, we reverse the trial court' s
ruling that termination of the Club' s nonconforming use status as a shooting range is a proper
remedy. We vacate the trial court' s injunction enjoining the property' s use as a shooting range.
But we affirm the trial court' s injunction limiting certain.activities at the Club in order to abate
the Club' s nuisance activities. We remand for the trial court to determine the appropriate remedy
Tor the Club' s expansion of its nonconforming use and permitting violations.

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