Kitsap County v. Lorna Young

Filed
Washington State
Court of Appeals
Division Two
September 11, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KITSAP COUNTY, a political subdivision of No. 50361-1-II
the State of Washington,
Respondent,
v.
LORNA YOUNG a/k/a LORINA YOUNG UNPUBLISHED OPINION
and “JOHN DOE” YOUNG, husband and wife
and the marital community composed thereof;
and COLIN F. YOUNG and “JANE ROE”
YOUNG, husband and wife and the marital
community composed thereof,
Appellants.
and
IN THE MATTER OF JUNK VEHICLES
AND NUISANCE AND UNPERMITTED
CONDITIONS LOCATED AT One 13.1-acre
Parcel in the 25800 Block of Big Valley Road
NE, Poulsbo, Washington (Kitsap County Tax
ID No. 262701-4-010-2004).
LEE, A.C.J. — Lorna and Colin Young appeal the superior court’s denial of their CR
41(b)(1) motion to dismiss, issuance of a preliminary injunction, and order granting summary
No. 50361-1-II
judgment in favor of Kitsap County.1 The Youngs argue that the superior court (1) erred when it
denied their CR 41(b)(1) motion to dismiss, (2) abused its discretion when it issued the preliminary
injunction, and (3) erred when it granted summary judgment in favor of the County. The Youngs’
claims fail, and we affirm.
FACTS
A. THE PROPERTY
Lorna2 owns a piece of property in unincorporated Kitsap County.. The property contained
a number of vehicles and vehicle parts, owned by Colin, Lorna’s son. The vehicles and vehicle
parts were visible from the road and neighboring properties. The property did not have approval
as a vehicle lot or for junk vehicle storage.
In 2011, Colin owned the property and quitclaimed the property to Lorna. The County
subsequently brought an administrative action to abate a public nuisance against Lorna due to the
conditions on the property. The hearing examiner found that two of the vehicles stored outside on
the property were junk vehicles and that no mitigation agreement was in place. The hearing
examiner also found that the conditions on the property constituted a public nuisance due to the
1
The Youngs also assign error to the superior court’s denial of their motions to reconsider the
order denying their motion to dismiss, the superior court’s failure to hear their show cause motion,
and the superior court’s findings of fact 5-12 and 14-16 in the preliminary injunction order.
However, they fail to provide any argument or authority regarding these assignments of error. We
will not address claims unsupported by argument and citation to legal authority. RAP 10.3(a)(6);
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Therefore,
we decline to address these claims.
2
Because multiple parties share the same last name of Young, we use first names for clarity. We
intend no disrespect.
2
No. 50361-1-II
storage of junk vehicles and use of the property as an unapproved vehicle lot. The hearing
examiner ordered Colin to correct the violations.
B. COUNTY COMPLAINT AND MOTION FOR INJUNCTION
On May 17, 2012, the County filed a complaint for an injunction, declaratory judgment,
and abatement of nuisance against the Youngs.
The County sought to enjoin the Youngs from using the property until the property was
brought in compliance with applicable regulations and no longer constituted a public nuisance.
The injunction would require the Youngs to remove all vehicles, parts, and solid wastes from the
property and require the Youngs to remove all potentially hazardous and uncontained solid wastes
from the property. The injunction would also authorize the County to erect a fence to prevent the
unauthorized movement of vehicles, parts, or solid wastes on or off the property and to prohibit
any person from placing a vehicle on the property unless allowed by law. And the Youngs would
be enjoined “from further violating the Kitsap County Code [(KCC)] and applicable state law at
the [p]roperty or as a result of unlicensed vehicle wrecking or other unlicensed and unauthorized
business activities whether conducted at the [p]roperty in this case or any property subject to the
[KCC].” Clerk’s Papers (CP) at 14.
The County further sought a warrant of abatement to enter the property to take necessary
action to abate the nuisance.
C. MOTION FOR PRELIMINARY INJUNCTION
The County also filed a motion for a preliminary injunction. The County sought to enjoin
the nuisance conditions and violations of the KCC resulting from the continued storage of the
vehicles on the property. The County included declarations from Stephen Mount, the code
3
No. 50361-1-II
compliance supervisor for the Kitsap County Department of Community Development (DCD),
and Neil Wachter, a senior Kitsap County deputy prosecutor. Mount’s declaration stated that the
property was located in the rural protected zone of unincorporated Kitsap County and that no land
use approvals had ever been issued for the property to operate as a vehicle storage lot. Mount
participated in a flyover of the property during which he saw 60 or more vehicles stored outside
on the property. Wachter’s declaration included a quitclaim deed for the property from Colin to
Lorna, showing that the property was located in Kitsap County and was assigned a single tax parcel
number.
On May 24, the Youngs filed a response brief opposing the preliminary injunction arguing
that there was no immediate threat to public safety and the scope of the proposed injunction was
overbroad. And in his declaration in support of the motion, Colin claimed that the vehicles on the
property were not junk vehicles. Colin also claimed that some of the vehicles on the property had
been the target of vandalism and theft, with parts stolen from them making them inoperable, and
that keys to several vehicles on the property had been stolen and not been recovered, and he needed
the keys to move the vehicles.
On May 30, the superior court issued a preliminary injunction after holding a hearing on
the matter. The superior court found that there were more than 60 vehicles on the property, a
majority of which met the statutory definition of junk vehicle. Therefore, there was a likelihood
of an imminent or actual injury based on the ongoing public nuisance condition.
On June 11, the Youngs filed a motion for reconsideration or clarification of the
preliminary injunction. Colin’s declaration in support of the motion challenged a number of the
County’s alleged factual assertions, including Mount’s assertion on the result of a previous
4
No. 50361-1-II
abatement action in Mason County Superior Court, Mount’s assertion on the existence of prior
findings that Colin was operating a wrecking yard at the property, and the County’s assertion on
the effect of a 2005 Mason County Superior Court order.
On June 18, the superior court denied the Youngs’ motion for reconsideration, but clarified
and amended the preliminary injunction order. No further action was taken by either party in the
case for over a year.
D. NOTICE OF DISMISSAL AND SUMMARY JUDGMENT MOTION
On October 3, 2013, the superior court clerk filed a notice of dismissal for want of
prosecution. The notice stated that no action of record had been taken in the past 12 months and
that the case would be dismissed pursuant to CR 41(b)(2), unless within 30 days a party takes
action of record or files a status report.
On November 4, the County filed a motion for summary judgment. The motion sought a
permanent injunction against the Youngs and an order directing the issuance of a warrant of
abatement.
E. YOUNGS’ MOTION TO DISMISS AND MOTION TO CONTINUE
On December 9, the Youngs filed a motion to dismiss pursuant to CR 41(b)(1) for want of
prosecution. The Youngs argued that more than a year had passed since the last action in the case
was taken on June 18, 2012.
On December 23, the superior court denied the motion to dismiss because the preliminary
injunction dissipated all joined issues and the time period for CR 41(b)(1) did not commence again
because no new issues were joined.
5
No. 50361-1-II
F. AMENDED MOTION FOR SUMMARY JUDGMENT
On September 2, 2016, the County filed an amended motion for summary judgment with
updated information on the conditions of the property.
In support of the motion, Mount declared that the property “continues to be populated with
several dozen vehicles” and that, to the best of his knowledge, the Youngs had not obtained any
permits for the property. CP at 542. On March 3, 2016, Mount visited a neighboring property and
was allowed to view all the open fields of the Youngs’ property. Mount compared photographs of
the Youngs’ property in 2016 to photos from 2011, 2012, and 2013, and he could see that many of
the vehicles had not been moved for over four years. The declaration also included attached
pictures taken from a neighboring property, which showed the presence of more than 20 vehicles
on the property. Specifically, the pictures showed at least 10 vehicles on the property had not
moved for at least five years, a vehicle had not moved for at least four years, and another vehicle
had not moved in at least three years.
Mount also explained that the “vehicles on the [p]roperty [were] easily visible from both
the neighboring properties and from NE Big Valley Road” and that the “vehicles [were] located
outdoors, and are not behind any sort of screening or fencing.” CP at 544. And “many of the
vehicles [were] located within 250 feet of the property line.” CP at 544. Mount also claimed that
“neither Ms. Lorna Young nor [Colin] have . . . attempted to enter into an environmental mitigation
agreement as required.” CP at 544.
On October 7, Colin filed his answer and affirmative defenses to the County’s original
complaint. On October 10, the Youngs filed separate responses to the amended motion for
summary judgment. Colin’s declaration in support stated that Colin had reviewed Mount’s
6
No. 50361-1-II
declaration. Colin asserted that Mount presented no facts on the condition, value, and operability
of the vehicles that could be confirmed. Colin also asserted that the property was screened by trees
year round from adjacent properties and that rows of trees screened the vehicles on the property.
And Colin claimed that Kitsap County parcel maps are often off by 10 feet. Colin also moved to
strike evidence from consideration on summary judgment and moved to continue the summary
judgment to allow him to conduct additional discovery. The superior court granted the motion to
continue the hearing on summary judgment.
G. SUMMARY JUDGMENT HEARING AND ORDER
On January 30, 2017, the superior court held a hearing on the County’s amended motion
for summary judgment. The superior court granted the County’s motion for summary judgment.
The superior court issued a judgment, stating,
1. It is hereby declared that the conditions of the [p]roperty including
storage of junk vehicles and vehicle parts in violation of both the Kitsap County
zoning and nuisance codes, Title 17 KCC and Chapter 9.56 respectively, as well as
the unpermitted use of the property as a vehicle lot, constitute a public nuisance.
CP at 728. The superior court based its decision on collateral estoppel from the 2011 hearing
examiner determination and independently based on the facts in the record demonstrating a public
nuisance.
The superior court also issued a permanent injunction, stating,
3. A permanent, mandatory and prohibitive injunction is hereby issued
enjoining land use of the [p]roperty in violation of Title 17 [KCC] (zoning),
including but not limited to the accumulation or storage of vehicles and vehicle
parts on the [p]roperty;
4. A permanent, mandatory and prohibitive injunction is hereby issued
enjoining land use of the [p]roperty in violation of Chapter 9.56 [KCC] (public
nuisance), including but not limited to the accumulation or storage of junk vehicles
7
No. 50361-1-II
and vehicle parts on the [p]roperty and the use of the [p]roperty as a vehicle lot
without approved land use.
CP at 728. The superior court stated, “There is clear and equitable right, a well-branded[3] fear of
invasion of that right and, in fact, in this case it is an actual invasion of the right to be free of public
nuisance. And also that the acts complained of result in or will result in actual and substantial
injury.” CP at 749-50. The superior court further authorized issuance of a warrant of abatement
to effectuate the injunctive relief ordered.
The Youngs moved for reconsideration of the summary judgment order. The superior court
denied reconsideration.
The Youngs appeal.
ANALYSIS
A. MOTION TO DISMISS
The Youngs argue that the superior court erred when it denied their CR 41(b)(1) motion to
dismiss for want of prosecution because CR 41(b)(1) applies and the County failed to note the case
for trial or hearing within one year after issues were joined. We disagree.
The dismissal of an action for want of prosecution is in the discretion of the court absent a
guiding statute or court rule. Bus. Servs. of Am. II, Inc. v. WaferTech LLC, 174 Wn.2d 304, 308,
274 P.3d 1025 (2012). A superior court has inherent authority to dismiss an action for want of
prosecution only where the dilatoriness is a type not described by CR 41(b)(1). Foss Mar. Co. v.
City of Seattle, 107 Wn. App. 669, 674, 27 P.3d 1228 (2001).
3
We take this to mean “well-grounded.”
8
No. 50361-1-II
Dismissal for want of prosecution is mandatory if CR 41(b)(1) applies. WaferTech, 174
Wn.2d at 308. Under CR 41(b)(1), a defendant may move the court for dismissal of an action for
failure of the plaintiff to prosecute. CR 41(b)(1) provides,
Any civil action shall be dismissed, without prejudice, for want of prosecution
whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff
neglects to note the action for trial or hearing within 1 year after any issue of law
or fact has been joined, unless the failure to bring the same on for trial or hearing
was caused by the party who makes the motion to dismiss. Such motion to dismiss
shall come on for hearing only after 10 days’ notice to the adverse party. If the case
is noted for trial before the hearing on the motion, the action shall not be dismissed.
We review the application of a court rule de novo. Niccum v. Enquist, 175 Wn.2d 441,
446, 286 P.3d 966 (2012). If a superior court errs in denying a CR 41 motion to dismiss for want
of prosecution, then the proper remedy is to remand to the superior court for dismissal. State ex
rel. Goodnow v. O’Phelan, 6 Wn.2d 146, 154, 106 P.2d 1073 (1940).
1. Application of CR 41(b)(1) and Time Limit
The Youngs argue that the superior court erred when it denied their CR 41(b)(1) motion to
dismiss because issues of law and fact were joined by their responsive filings on May 24, 2012
and June 11, 2012 and were left undissipated; thus, the one-year time limit under CR 41(b)(1) had
commenced and continued to run when they moved to dismiss. We disagree.
If no issue of law or fact is joined, then CR 41(b)(1) does not apply. State ex rel. Wash.
Water Power Co. v. Superior Court for Chelan County, 41 Wn.2d 484, 489, 250 P.2d 536 (1952).
An issue of law or fact arises whenever “‘in the progress of a legal action . . . it becomes necessary
and proper to decide a question of law or a question of fact.’” Wash. Water Power, 41 Wn.2d at
489 (quoting O’Phelan, 6 Wn.2d at 150). Every case moves in and out of the operation of the time
limit fixed by CR 41 as issues of law or fact are raised and decided. Wash. Water Power, 41 Wn.2d
9No. 50361-1-II
at 489-90. Once the time begins to run, it is terminated when the issue raised is dissipated and
starts anew when another issue is raised. Wash. Water Power, 41 Wn.2d at 490.
Here, CR 41 does not apply as the issues raised by the Youngs were dissipated and no
additional issues were raised or joined to start the time under CR 41 anew. An issue of law or fact
arises whenever “‘in the progress of a legal action . . . it becomes necessary and proper to decide
a question of law or a question of fact.’” Wash. Water Power, 41 Wn.2d at 489 (quoting O’Phelan,
6 Wn.2d at 150).
First, the issues raised by the Youngs’ responsive brief opposing the preliminary injunction
and attached declaration were dissipated by the superior court’s preliminary injunction. On May
17, 2012, the County filed a motion for a preliminary injunction. On May 24, 2012, the Youngs
filed a responsive brief opposing the preliminary injunction and included Colin’s declaration. The
brief and declaration challenged the propriety of issuing a preliminary injunction, arguing that
there was no immediate threat to public safety, that the scope of the proposed injunction was
overbroad, and that the vehicles on the property were not junk vehicles. These challenges raised
issues of law because it became necessary to decide the issues as a part of deciding the propriety
of issuing a preliminary injunction and, therefore, started the time limit under CR 41. See Wash.
Water Power, 41 Wn.2d at 489.
After a hearing, the superior court granted the County’s motion and issued a preliminary
injunction on May 30, 2012. The superior court found that there was a likelihood of an imminent
or actual injury based on the ongoing public nuisance condition and that there were at least 69
vehicles on the property, a majority of which met the statutory definitions of junk vehicle. The
superior court then issued a preliminary injunction. In doing so, the superior court dissipated the
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No. 50361-1-II
issues raised by the Youngs’ responsive brief and declaration and terminated the time limit under
CR 41. See Wash. Water Power, 41 Wn.2d at 489-90.
Second, the issues raised by the Youngs’ motion for reconsideration were dissipated by the
superior court’s denial of the motion and issuance of an order clarifying the preliminary injunction.
On June 11, 2012, the Youngs filed a motion for reconsideration or clarification of the preliminary
injunction order and included a declaration from Colin. This motion raised issues of law and fact
and restarted the time limit under CR 41. See Wash. Water Power, 41 Wn.2d at 489.
On June 18, 2012, after a hearing, the superior court denied the Youngs’ motion for
reconsideration, but clarified and amended the preliminary injunction order. By denying
reconsideration, the superior court rejected the Youngs’ arguments and found an insufficient basis
for reconsideration. But the superior court clarified and amended the preliminary injunction. In
doing so, the superior court dissipated the issues raised by the Youngs’ responsive brief and
declaration and terminated the time limit under CR 41. See Wash. Water Power, 41 Wn.2d at 489-
90.
No issues of law or fact were subsequently joined as neither party took further action in
this case until the County moved for summary judgment and the Youngs moved to dismiss. In
fact, the Youngs failed to file an answer to the County’s complaint until after they moved to
dismiss. Because the superior court’s preliminary injunction and order denying reconsideration
and granting clarification dissipated all issues the Youngs challenged at the time the Youngs
brought their motion to dismiss, CR 41(b)(1) did not apply as the time limit had not commenced.
Wash. Water Power, 41 Wn.2d at 489-90. Therefore, the superior court did not err when it found
that CR 41(b)(1) did not apply and denied the Youngs’ motion to dismiss.
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No. 50361-1-II
2. The Youngs’ Arguments
The Youngs argue that (1) their responsive filings raised issues of law and fact that were
not dissipated and (2) the superior court improperly relied on pretrial procedure to foreclose
operation of CR 41(b)(1). We disagree.
a. Undissipated issues
The Youngs argue that their brief opposing the preliminary injunction, motion for
reconsideration, and declarations raised issues of law and fact that were not dissipated and
triggered the time limit under CR 41. The Youngs generally note that the issues other than the
“junk vehicles” issue were not dissipated; however, the Youngs cite only one example from
Colin’s declaration challenging the result of a previous abatement action in Mason County
Superior Court4 and prior findings that Colin was operating a wrecking yard at the property.
Appellant’s Opening Br. at 12. In support, the Youngs cite to the following language in O’Phelan:
[A]n issue of law or an issue of fact arises whenever in the progress of a legal action
or proceeding it becomes necessary and proper to decide a question of law or a
question of fact.
....
. . . In adopting the rule, this court did not use the phrase “any issue of law
or fact” in the narrow and technical sense in which those words had been used in
Rem. Rev. Stat. §§ 309, 310, and 311, but in the broader and more accurate sense
of having reference to every issue of law or fact, however raised.
6 Wn.2d at 150-52.
4
Insofar as it is necessary to consider the contents of the 2005 Mason County Superior Court order,
the Youngs failed to include the order in the appellate record for our review. It is the appellant’s
responsibility to perfect the record on appeal. Martin v. Wilbert, 162 Wn. App. 90, 96 n.8, 253
P.3d 108, review denied, 173 Wn.2d 1002 (2011). Therefore, we do not address issues pertaining
to the contents of the 2005 order.
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No. 50361-1-II
Colin’s declaration in support of the motion for reconsideration challenged a number of the
County’s alleged factual assertions besides the storage of junk vehicles, including Mount’s
assertion on the result of a previous abatement action in Mason County Superior Court, Mount’s
assertion on the existence of prior findings that Colin was operating a wrecking yard at the
property, and the County’s assertion on the effect of a 2005 Mason County order. But the County
never made these assertions.
Furthermore, “an issue of law or an issue of fact arises whenever in the progress of a legal
action or proceeding it becomes necessary and proper to decide a question of law or a question of
fact.” O’Phelan, 6 Wn.2d at 150. Although the Youngs opposed the preliminary injunction on
various legal bases and challenged several facts asserted by the County’s declarations, the superior
court did not need to address every challenge in deciding the County’s motion for a preliminary
injunction and the Youngs’ motion for reconsideration or clarification.
Specifically, the challenges noted by the Youngs regarding the result of a prior abatement
action and prior findings about the operation of a wrecking yard were not necessary to deciding
the motions relating to the preliminary injunction as the superior court must look to the current
conditions of the property, the rights of the County, and the injury to be suffered. To obtain
injunctive relief, a plaintiff must establish (1) a clear legal or equitable right, (2) a well-grounded
fear of immediate invasion of that right, and (3) that the act complained of will result in actual and
substantial injury. Huff v. Wyman, 184 Wn.2d 643, 648, 361 P.3d 727 (2015). This inquiry focuses
13
No. 50361-1-II
on the rights of the County and the injury to be suffered.5 As a result, the Youngs’ challenges were
not “necessary and proper to decide” in addressing the preliminary injunction motions and thus
did not raise or join an issue of law or fact for purposes of CR 41(b)(1).6 O’Phelan, 6 Wn.2d at
150.
The time limit for CR 41(b)(1) terminated after the superior court issued its order clarifying
the preliminary injunction and denying reconsideration, and no issues of law or fact were
subsequently joined as neither party took any action until the County motioned for summary
judgment and the Youngs moved to dismiss. Thus, CR 41(b)(1) did not apply.
b. Pretrial procedure
The Youngs argue that the superior court erred when it relied on pretrial procedure to
foreclose operation of CR 41(b)(1). The Youngs note that the superior court ruled the issue of
junk vehicles was dissipated by the preliminary injunction and argue that the preliminary
injunction should have no effect on the operation of CR 41(b)(1). In support, the Youngs cite to
Day v. State, 68 Wn.2d 364, 367, 413 P.2d 1 (1966). In Day, our Supreme Court stated, “Pretrial
procedures, however, have no effect on this rule of dismissal.” 68 Wn.2d at 366.
5
This same analysis applies to the County’s other alleged factual assertions that the Youngs
challenged, including Mount’s assertion on the result of a previous abatement action in Mason
County Superior Court, Mount’s assertion on the existence of prior findings that Colin was
operating a wrecking yard at the property, and the County’s assertion on the effect of a 2005 order.
6
The Youngs fail to provide any legal argument or support to show that an issue is raised or joined
for purposes of CR 41(b)(1) whenever any legal argument is made or any fact is challenged,
regardless of the necessity to address the challenge.
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No. 50361-1-II
The Day court addressed whether the nonmoving party’s settlement offer, which was
rejected, tolled the operation of CR 41(b)(1). 68 Wn.2d at 367. In discussing the predecessor of
CR 41(b)(1), the court stated that pretrial procedure did not affect the rule. Day, 68 Wn.2d at 366.
The court then specified that such pretrial procedure was the show cause order in that case. Day,
68 Wn.2d at 366-67. The court went on to hold that the nonmoving party’s settlement offer and
the moving party’s rejection waived the time period before the offer and rejection for purposes of
the rule. Day, 68 Wn.2d at 367.
The Youngs misunderstand the context of the proposition in Day and misapply it here. The
Youngs use the proposition to make a general assertion that all pretrial procedures have no effect
on CR 41(b)(1). But the Day court did not make such a sweeping proposition. Although not
explicitly stated, the court only specified that the show cause order had no effect on the rule
because it did not join any issues. See Day, 68 Wn.2d at 366. As a result, this claim fails.7
Therefore, we hold that the superior court did not err when it found that CR 41(b)(1) did not apply
and denied the Youngs’ motion to dismiss pursuant to CR 41(b)(1).
7
The Youngs also argue that the superior court’s pretrial findings should have been limited to the
preliminary injunction and that the superior court erred in its application of the pretrial findings to
foreclose the operation of CR 41(b)(1) because they do not represent a final adjudication. The
Youngs fail to provide legal argument or support for its argument that the superior court erred in
its application of the pretrial findings to foreclose the operation of CR 41(b)(1) because they do
not represent a final adjudication, and thus we do not address this claim. Cowiche Canyon
Conservancy, 118 Wn.2d at 809.
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No. 50361-1-II
B. PRELIMINARY INJUNCTION
The Youngs argue that the superior court abused its discretion when it issued a preliminary
injunction against them. We decline to address this issue because it is moot.8
We review a superior court’s decision on a preliminary injunction for an abuse of
discretion. Huff, 184 Wn.2d at 648. To obtain injunctive relief, a plaintiff must establish (1) a
clear legal or equitable right, (2) a well-grounded fear of immediate invasion of that right, and (3)
that the act complained of will result in actual and substantial injury. Huff, 184 Wn.2d at 648.
An issue is moot if we cannot provide effective relief. Herrera v. Villaneda, 3 Wn. App.
2d 483, 492, 416 P.3d 733 (2018). A final judgment renders the propriety of a temporary order
moot. Ferry County Title & Escrow Co. v. Fogle’s Garage, Inc., 4 Wn. App. 874, 881, 484 P.2d
458, review denied, 79 Wn.2d 1007 (1971); see also State ex rel. Carroll v. Simmons, 61 Wn.2d
146, 149, 377 P.2d 421 (1962) (“The temporary injunction was also merged in the final judgment
and any question as to the propriety of the entry of such an order is now moot.”), cert. denied, 374
U.S. 808 (1963).
8
The Youngs also assign error to the superior court’s conclusion of law 9 in the preliminary
injunction order, which states, “Kitsap County [was] likely to prove the violations of the [KCC
chapters 9.56 and 17.530, and] RCW chapter 7.48.” CP at 273. However, the Youngs provide
argument relating to only their violations of the KCC in the context of their challenge to the
summary judgment order, not the preliminary injunction order.
Regardless, the superior court’s conclusion of law 9 is supported by its findings of fact,
which are supported by substantial evidence. Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P.3d
787 (2009). The conclusion is supported by the findings that Lorna was the owner of the property,
that the property included a single tax parcel, that the property was zoned rural protected by Kitsap
County, that more than 60 vehicles were on the property and constituted junk vehicles, that some
of the vehicles were visible from a public street, and that the property never received approval as
a vehicle storage lot. These findings are supported by the facts presented in the declarations of
Mount, Wachter, and Colin. Thus, the superior court did not err.
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No. 50361-1-II
Here, the issue is moot. The Youngs present a general challenge to only the propriety of
the preliminary injunction, claiming the superior court erred in issuing the preliminary injunction
and not granting their motion for reconsideration. However, relief from the preliminary injunction
became moot when the superior court converted the preliminary injunction into a permanent
injunction. In doing so, the superior court ruled that the County had proved the public nuisance
conditions violated the County’s rights, the County had an actual and substantial injury, and a
permanent injunction was necessary to prevent the public nuisance. As a result, we can no longer
provide effective relief because there is no preliminary injunction in effect. Thus, this issue is
moot.
Also, the factors for considering a moot issue are not met here. We may consider a moot
issue if it involves “matters of continuing and substantial public interest.” Thomas v. Lehman, 138
Wn. App. 618, 622, 158 P.3d 86 (2007). To determine whether a case involves the requisite public
interest, we consider “(1) the public or private nature of the question presented, (2) the desirability
of an authoritative determination to provide future guidance to public officers, and (3) the
likelihood that the question will recur.” Thomas, 138 Wn. App. at 622. This exception to the
general rule applies “only where the real merits of the controversy are unsettled and a continuing
question of great public importance exists.” Sorenson v. City of Bellingham, 80 Wn.2d 547, 558,
496 P.2d 512 (1972).
The question presented here is of a private nature regarding private property and does not
involve issues in need of guidance or likely to recur. The merits of the preliminary injunction have
also been settled and there is no continuing question of public importance regarding the injunction.
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No. 50361-1-II
Thus, this issue is not of continuing and substantial public interest warranting review despite its
mootness. Therefore, we decline to address this issue.
C. SUMMARY JUDGMENT
The Youngs argue that the superior court erred when it granted summary judgment in favor
of the County.9 We disagree.
1. Legal Principles
We review a superior court’s summary judgment decision de novo. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015). In doing so, we consider the evidence and all reasonable
inferences from the evidence in the light most favorable to the nonmoving party. CR 56(c); Keck,
184 Wn.2d at 370. Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Keck, 184 Wn.2d at 370. A
material fact is one that affects the outcome of the litigation. Owen v. Burlington N. & Santa Fe
R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). “An issue of material fact is genuine if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Keck, 184
Wn.2d at 370.
9
The Youngs argue that their show cause memorandum and declaration in support are in fact
summary judgment responsive pleadings that raise issues of law and fact, but they provide no
evidentiary or legal citations in support of this argument. Also, Colin’s declaration in support of
the memorandum fails to rebut the County’s contentions that support summary judgment. We do
not consider arguments unsupported by legal citation. Cowich Canyon Conservancy, 118 Wn.2d
at 809. Allegations in the pleadings or conclusory statements unsupported by evidence do not
establish a genuine issue of material fact. Titan Earthwork, LLC v. City of Federal Way, 200 Wn.
App. 746, 751, 403 P.3d 884 (2017); Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d
182 (1989). Therefore, this claim fails.
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No. 50361-1-II
The moving party has the initial burden to show there is no genuine issue of material fact.
Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 183, 401 P.3d 468 (2017). Once
the moving party makes such a showing, the burden shifts to the nonmoving party to set forth
specific facts that rebut the moving party’s contentions and show a genuine issue of material fact.
Zonnebloem, 200 Wn. App. at 183. The nonmoving party may not rely on speculation or
“argumentative assertions that unresolved factual issues remain” to defeat summary judgment.
Titan Earthwork, LLC v. City of Federal Way, 200 Wn. App. 746, 751, 403 P.3d 884 (2017)
(quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). Mere
allegations in the pleadings or conclusory statements unsupported by evidence do not establish a
genuine issue of material fact. Titan Earthwork, 200 Wn. App. at 751; Young v. Key Pharm., Inc.,
112 Wn.2d 216, 225, 770 P.2d 182 (1989). “A declaration that contains only conclusory
statements without adequate factual support does not create an issue of material fact that defeats a
motion for summary judgment.” Lane v. Harborview Med. Ctr., 154 Wn. App. 279, 288, 227 P.3d
297 (2010).
2. Public Nuisance
“A nuisance per se is an act, thing, omission, or use of property which of itself is a nuisance,
and hence is not permissible or excusable under any circumstance.” Tiegs v. Watts, 135 Wn.2d 1,
13, 954 P.2d 877 (1998). Engaging in any activity in defiance of a law regulating or prohibiting
the activity is a nuisance per se. Kitsap County v. Kev, Inc., 106 Wn.2d 135, 138, 720 P.2d 818(1986).
The legislature has given counties in Washington State the “power to declare by ordinance
what shall be deemed a nuisance within the county.” RCW 36.32.120(10). Under the KCC, a
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No. 50361-1-II
public nuisance includes unapproved “[v]ehicle lots,” the storage of a “junk motor vehicle”
outside, and violations of KCC Title 17. KCC 9.56.020(10)(b)(iii), (iv); KCC 17.610.030.
a. Unapproved vehicle lot
Under KCC 9.56.020(10)(b)(iv), a public nuisance includes the existence of “[v]ehicle lots
without approved land use.” A “‘[v]ehicle lot’” is “a single tax parcel where more than ten vehicles
are regularly stored without approved land use by the [DCD].” KCC 9.56.020(19).
Here, the County met its initial burden to show that the property constituted an unapproved
“vehicle lot” and the Youngs failed to sufficiently rebut the contention. The County presented the
declaration of Wachter, which included the quitclaim deed for the property as an exhibit. The deed
showed that the property was assigned a single tax parcel number in Kitsap County. The County
also presented declarations of Mount, which stated that the “[p]roperty continues to be populated
with several dozen vehicles” and the Youngs had not obtained any permits for the property. CP at
542. Mount also declared no land use approvals had ever been issued for the property to operate
as a vehicle storage lot. And during a flyover of the property, Mount saw 60 or more vehicles
stored outside. Mount’s declarations also attached pictures that showed at least 10 vehicles on the
property had not moved for at least five years, a vehicle had not moved for at least four years, and
another vehicle had not moved in at least three years. Thus, the County met its burden to show
that there was no genuine issue of material fact that the property was an unapproved “vehicle lot.”
The Youngs failed to rebut the County’s contention. Although Colin presented his own
declaration that asserted Mount’s observational claims were not factual, mere allegations or
conclusory statements unsupported by evidence do not establish a genuine issue of material fact.
Titan Earthwork, 200 Wn. App. at 751. The Youngs also failed to challenge, and thus rebut, the
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No. 50361-1-II
County’s contention that the property included a single tax parcel where 10 or more vehicles were
regularly stored without the County approving such land use. Thus, the Youngs failed to raise a
genuine issue of material fact regarding whether the property was a public nuisance as a vehicle
lot without approved land use in violation of KCC 9.56.020(10)(b)(iv).
b. Junk motor vehicles
Under KCC 9.56.020(10)(b)(iii), a public nuisance includes the storage of any “junk motor
vehicle” outside. A “[j]unk motor vehicle” is defined as a motor vehicle meeting at least three of
the following requirements:
(a) Is three years old or older;
(b) Is extensively damaged, such damage including, but not limited to, any of
the following: a buildup of debris that obstructs use, broken window or windshield;
missing wheels, tires, tail/headlights, or bumpers; missing or nonfunctional motor
or transmission; or body damage;
(c) Is apparently inoperable; or
(d) Has an approximate fair market value equal only to the approximate value
of the scrap in it.
KCC 9.56.020(9).
However, a property may store up to six “junk motor vehicles” outside if the vehicles are
completely screened by a fence or natural vegetation or more than 250 feet away from all property
lines. KCC 9.56.020(10)(b)(iii)(A). “‘Screened’ means not visible from any portion or elevation
of any neighboring or adjacent public or private property, easement, or right-of-way.” KCC
9.56.020(17). “Any junk motor vehicle that is stored outside on private property without an
approved environmental mitigation agreement with the [DCD] shall be considered a nuisance.”
KCC 9.56.020(10)(b)(iii)(A).
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No. 50361-1-II
Here, the County met its initial burden to show that the property stored “junk motor
vehicles” outside and that the exceptions did not apply. Mount’s declaration and attached exhibits
showed that “junk motor vehicles” were stored on the property. Mount’s declaration stated that
he visited a neighboring property on multiple occasions that allowed him to view all the open fields
of the property. Comparing the photographs of the property, Mount could see that many of the
vehicles had not been moved for over four years. Mount’s declaration also attached photographic
exhibits depicting at least 10 vehicles on the property that had not moved for at least five years, a
vehicle that had not moved for at least four years, and another vehicle that had not moved in at
least three years. The photographs showed that 12 vehicles on the property were at least three
years old. The photographs also showed that these 12 vehicles included a car with a broken side
mirror, a car with a damaged front bumper, and a van with a missing hood. Thus, at least three of
the 12 vehicles on the property were damaged. The photographs further showed that the car with
a damaged front bumper was raised and the van with a missing hood had severe front end damage.
Thus, at least two vehicles on the property were apparently inoperable. Taken altogether, the
County met its burden to show that there was no genuine issue of material fact that the property
stored “junk motor vehicles” outside.
The County also met its initial burden to show that the exception to the storage of “junk
motor vehicles” outside did not apply. In his declaration, Mount stated that the “vehicles on the
[p]roperty are easily visible from both the neighboring properties and from NE Big Valley Road”
and that the vehicles “are not behind any sort of screening or fencing.” CP at 544. Mount also
stated that “many of the vehicles are located within 250 feet of the property line.” CP at 544.
Finally, “neither Ms. Lorna Young nor [Colin] have . . . attempted to enter into an environmental
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No. 50361-1-II
mitigation agreement as required.” CP at 544. The photographs attached to Mount’s declaration
showed that the “junk motor vehicles” on the property were not completely screened by a fence or
natural vegetation as they were visible from the neighboring properties.
The Youngs failed to rebut the County’s contentions. The Youngs presented arguments in
their responsive filings, but allegations in the pleadings are insufficient to defeat summary
judgment. Titan Earthwork, 200 Wn. App. at 751; Young, 112 Wn.2d at 225. The Youngs only
presented a declaration from Colin, which failed to rebut the County’s contentions. Although
Colin stated that Mount did not present any facts on the operability of the vehicles that could be
confirmed, the definition of “junk motor vehicle” requires only apparent inoperability. KCC
9.56.020(9). Furthermore, although Colin stated that the property was screened and the trees on
the property screened the vehicles, the requirement under the junk vehicle exception requires the
junk vehicles to be completely screened and not visible from any portion or elevation of any
neighboring or adjacent properties. KCC 9.56.020(10)(b)(iii)(A), .020(17). Thus, the Youngs
failed to rebut the County’s showing that there was no genuine issue of material fact that there
were “junk vehicles” on the property and that the exception did not apply. Thus, summary
judgment was proper on the issue of the property having “junk vehicles” outside and constituting
a public nuisance.10
10
The Youngs also argue for the first time in their reply brief that insufficient evidence was
presented to find that the property stored “junk vehicles” and constituted a “vehicle lot.” However,
“[a]n issue raised and argued for the first time in a reply brief is too late to warrant consideration.”
Cowiche Canyon Conservancy, 118 Wn.2d at 809. Therefore, we decline to address these claims.
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No. 50361-1-II
c. Violation of KCC Title 17
“Any use, building or structure in violation of [Title 17 of the KCC] is unlawful, and a
public nuisance.” KCC 17.610.030. KCC 17.410.042 prohibits vehicle storage in a rural protected
zone. And the storage of “junk motor vehicles” must comply with substantially similar
requirements as KCC 9.56.020(10)(b)(iii)(A). KCC 17.410.060(B)(6).
Under KCC 17.410.060(B)(6)(a), the storage of “junk motor vehicles” outside is
prohibited, unless there are six or fewer “junk motor vehicles” and the vehicles are (1) completely
screened to the satisfaction of the director or (2) stored more than 250 feet away from all property
lines. “The owner of any such junk motor vehicle(s) must successfully enter into an environmental
mitigation agreement with the [DCD].” KCC 17.410.060(B)(6)(b).
As discussed above, the County established that there was no genuine issue of material fact
that at least two “junk motor vehicles” were stored outside on the property, not screened, and
without an environmental mitigation agreement. Thus, the County also established that there was
no genuine issue of material fact that the property violated KCC 17.410.060(B)(6). Therefore, the
superior court did not err when it found that the property constituted a public nuisance and granted
summary judgment in favor of the County.11
11
The Youngs argue that the superior court erred when it applied collateral estoppel to the hearing
examiner’s finding of “junk vehicles” and vehicle storage lot. However, application of collateral
estoppel does not affect the outcome of this case. In addition to the 2011 hearing examiner’s
decision, the County submitted additional evidence to show that no genuine issue of material fact
existed regarding the property constituting a public nuisance (1) as an unapproved “vehicle lot”
and (2) due to the presence of “junk motor vehicles” on the property without an applicable
exception. This provided the superior court with an independent basis for its decision, which the
superior court utilized to alternatively find that the property constituted a public nuisance.
The Youngs also appear to argue that a genuine issue of material fact existed regarding
Mount and other administrative officials conducting a search without obtaining a proper warrant.
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No. 50361-1-II
We affirm.
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.
Lee, A.C.J.
We concur:
Bjorgen, J.
Melnick, J.
However, the evidence presented and relied on by the superior court, namely the photographic
exhibits by Mount, were obtained from a neighboring property and not from the property itself.
Therefore, this claim fails.
25