Kitsap County v. Kitsap Rifle And Revolver Club

Filed
Washington State
Court of Appeals
Division Two
December 1, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KITSAP COUNTY, a political subdivision of No. 53898-9-II
the State of Washington,
Respondent,
v.
KITSAP RIFLE AND REVOLVER CLUB, a UNPUBLISHED OPINION
not-for-profit corporation registered in the State
of Washington, and JOHN DOES and JANE
DOES I-XX, inclusive,
Appellants.
and
IN THE MATTER OF NUISANCE AND
UNPERMITTED CONDITIONS LOCATED
at One 72-acre parcel identified by Kitsap
County Tax Parcel ID No. 362501-4-002-1006
with street address 4900 Seabeck Highway
NW, Bremerton, Washington.
MAXA, J. – Kitsap Rifle and Revolver Club (Club) appeals the trial court’s June 2019
order amending the court’s February 2016 supplemental judgment. In the June 2019 order, the
trial court ruled that certain activities at the Club’s shooting range were expansions of the Club’s
nonconforming use and prohibited those activities. This court had vacated the February 2016
supplemental judgment and remanded for the trial court to clarify that judgment. The trial court
had entered the February 2016 supplemental judgment after this court vacated the trial court’s
original judgment entered in 2012 following a lengthy trial.
No. 53898-9-II
In the June 2019 order, the trial court entered a declaratory judgment ruling that the
following activities constituted unlawful expansions of the Club’s nonconforming use: (1)
discharging cannons or causing exploding targets to explode, (2) discharging fully automatic
firearms and discharging semiautomatic rifles larger than nominal .30 caliber, and (3) conducting
more than two practical shooting competitions and 10 scheduled shooting practices per month.
The court entered a land use injunction prohibiting those activities.
The Club argues that the June 2019 order must be vacated and the case remanded because
the trial court (1) did not follow this court’s instructions on remand in that the prohibitions on
cannons and exploding targets, fully automatic weapons and semiautomatic rifles greater than
.30 caliber, and the number of practical shooting competitions and practices do not reflect that
only expansions of nonconforming use and not mere intensifications can be prohibited; (2) failed
to define important terms in the land use injunction that are vague or ambiguous; and (3) failed
to balance the interests of the parties and the public in issuing the land use injunction.
Underlying all these arguments is the Club’s contention that additional fact finding is required on
remand to properly tailor the appropriate remedies for the Club’s expansion of use.
We hold that (1) the trial court erred by concluding that more than two scheduled
practical shooting competitions per month and more than ten scheduled practical shooting
practices per month constituted an unlawful expansion of the Club’s nonconforming use but did
not err regarding the other declaratory judgment provisions, (2) the trial court erred by enjoining
discharging cannons without defining the term “cannons” but did not err in failing to define other
terms in the land use injunction, and (3) the balancing of the equities requirement for issuing an
injunction does not apply here.
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Accordingly, we vacate in part the declaratory judgment and land use injunction in the
trial court’s June 2019 order and remand with specific instructions for the trial court to (1)
determine the number of practical shooting competitions and practices held at the Club before
the expansion of use in 2005 or 2006 and to prohibit only those competitions and practices above
that number, and (2) define the term “cannons.” We affirm the remaining portions of the June
2019 order’s declaratory judgment and land use injunction.
FACTS
Background
The Club is a nonprofit corporation that has operated a shooting range in Bremerton since
its founding in 1926. In 1993, the Kitsap County Board of Commissioners notified the Club that
it considered the Club’s use of the shooting range to be a lawfully established nonconforming
use. Before 1993, club members and members of the general public used small caliber weapons
and shooting occurred only occasionally and for short periods of time. The use of automatic
weapons and rapid-fire shooting occurred infrequently.
In 2005 or 2006, the Club’s use of the shooting range changed. For profit companies
began using the shooting range for classes and for training military personnel. The range
frequently was used for scheduled practical shooting practices and competitions, resulting in
loud, rapid-fire shooting for several hours. The Club also allowed the use of exploding targets
and cannons. The use of explosive devices and higher caliber weaponry as well as practical
shooting practices and competitions increased the noise level of the Club’s shooting activities.
Shooting became clearly audible in neighborhoods near the range and frequently was loud,
disruptive, and long in duration.
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No. 53898-9-II
In 2011, the County filed a complaint for an injunction, declaratory judgment, and
nuisance abatement against the Club. The County alleged that the Club’s changes in use of the
shooting range were unlawful expansions of the Club’s nonconforming use.
After a lengthy bench trial, the trial court in 2012 issued detailed findings of fact and
conclusions of law. The court ruled that the Club had significantly changed and enlarged the
existing use through expanded hours, commercial and military use, and increased noise levels
because of explosive devises, higher caliber weapons greater than .30 caliber, and practical
shooting. The court concluded that these actions were expansions and not merely
intensifications of the nonconforming use. The court ruled that this expansion of use terminated
the nonconforming use status of the Club’s property.
The trial court issued a permanent land use injunction prohibiting the Club from
operating as a shooting range until the County issued a conditional use permit for the property.
The court also issued a permanent nuisance injunction prohibiting the use of fully automatic
firearms, “rifles of greater than nominal .30 caliber” and “exploding targets and cannons,” and
prohibiting operation of the range before 9:00 AM and after 7:00 PM. Clerk’s Papers (CP) at 114.
Kitsap Rifle I
The Club appealed the trial court’s declaratory judgment and permanent injunctions to
this court. Kitsap County v. Kitsap Rifle & Revolver Club (Kitsap Rifle I), 184 Wn. App. 252,
266, 337 P.3d 328 (2014). A commissioner of this court granted a stay of the trial court’s
injunction while the appeal was pending. Id.In Kitsap Rifle I, the Club did not assign error to any of the trial court’s findings of fact
regarding the Club’s expansions of its nonconforming use. Id. at 267. Consequently, those
unchallenged findings became verities on appeal. Id.4
No. 53898-9-II
This court upheld the trial court’s conclusions that commercial and military use of the
shooting range and dramatically increased noise levels constituted impermissible expansions of
the Club’s nonconforming use.1 Id. at 273-74. However, the court concluded that termination of
the nonconforming use was not the proper remedy. Id. at 300-01. As a result, the court vacated
the trial court’s injunction prohibiting the Club from operating as a shooting range. Id. at 301.
The court stated that the appropriate remedy “must reflect the fact that some change in use –
‘intensification’ – is allowed and only ‘expansion’ is unlawful.” Id. The court remanded for the
trial court “to determine the appropriate remedies for the Club’s expansion of its nonconforming
use.” Id.The court also affirmed the trial court’s conclusion that excessive noise and other
activities constituted a public nuisance. Id. at 261, 303. The court affirmed “the trial court’s
injunction limiting certain activities at the Club in order to abate the Club’s nuisance activities.”
Id. at 303-04.
Remand from Kitsap Rifle I
On remand from Kitsap Rifle I, the Club filed a motion to reopen the record. The Club
sought to introduce evidence of the Club’s operations during this court’s stay order, including a
study of the shooting range’s noise levels, arguing that this evidence was necessary for the trial
court to fashion an appropriate remedy. The trial court denied the Club’s motion to reopen the
record. The court stated that it did not believe that Kitsap Rifle I anticipated reopening the record
and that additional evidence was not necessary to determine the proper remedy.
1
This court disagreed with the trial court’s determination that the shooting range’s increased
operating hours constituted an expansion of use. 184 Wn. App. at 272.
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No. 53898-9-II
On February 5, 2016, the trial court issued an Order Supplementing Judgment on
Remand. The order replaced only the declaratory judgment provision and the land use injunction
precluding operation of the shooting range in the 2012 judgment. The court granted declaratory
judgment and ruled that “activities and uses of the Property consisting of military training uses;
commercial, for-profit uses; and uses increasing noise levels by allowing explosive devices,
higher caliber weaponry greater than .30 caliber and practical shooting, each constitute unlawful
expansions of and changes to the nonconforming use of the Property as a shooting range.” CP at
124. The order issued a “Land Use Injunction” prohibiting the following expanded uses:
1. Commercial, for-profit uses;
2. Military training uses;
3. Use of explosive devices including exploding targets;
4. Use of high caliber weaponry greater than .30 caliber; and
5. Practical shooting, uses, including organized competitions and practice sessions.
CP at 124. The supplemental order did not eliminate or revise the permanent nuisance injunction
contained in the 2012 judgment.
Kitsap Rifle II
The Club appealed the trial court’s ruling denying the motion to reopen the record, and
the court’s declaratory judgment and land use injunction. Kitsap County v. Kitsap Rifle (Kitsap
Rifle II), No. 48781-1-II, slip op. at 1 (Wash. Ct. App. Nov. 21, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2048781-1-II%20Unpublished%20Opinion.pdf.
In Kitsap Rifle II, this court affirmed the trial court’s decision to deny the Club’s motion
to reopen the record on remand. Id. at 10-13. However, the court vacated the portion of the trial
court’s injunction that prohibited the “use of explosive devices including exploding targets”; the
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No. 53898-9-II
“use of high caliber weaponry greater than .30 caliber”; and “practical shooting uses, including
organized competitions and practice.” Id. at 2 (internal quotations omitted).2
Regarding the use of explosive devices, the court concluded that this part of the trial
court’s injunction was overbroad and vague because it appeared to prohibit all “explosive
devices.” Id. at 19-21. The court noted that the trial court’s original permanent injunction
prohibited the use of only exploding targets and cannons. Id. at 20. The court stated that this
prohibition prohibited “more than necessary to remedy the increased noise levels at the shooting
range,” which constituted the impermissible expansion. Id. The court remanded with specific
instructions to the trial court (1) “to clarify which explosive devices were found to create an
impermissible expansion of the Club’s nonconforming use,” and (2) “to fashion a remedy that
implements its original permanent injunction prohibiting the use of ‘exploding targets and
cannons.’ ” Id. at 20, 21.
Regarding the use of high caliber weaponry, the court concluded that this part of the trial
court’s injunction was overbroad because it appeared to prohibit all weapons greater than .30
caliber, including pistols and shotguns. Id. at 21-23. The court noted that the trial court’s
original nuisance injunction prohibited only rifles that were greater than .30 caliber. Id. at 21. In
addition, the trial court made findings regarding increased noise levels only from fully and
semiautomatic weapons. Id. 21-22. And the trial court found that higher caliber weaponry had
caused an increase in noise levels only in the previous five to six years. Id. at 22. The court
remanded with specific instructions to the trial court (1) “to clarify which weapons are prohibited
because they create noise levels that constitute an impermissible expansion of the Club’s
2
The court also vacated the portion of the trial court’s injunction prohibiting commercial, for-
profit uses. Kitsap Rifle II, Slip Op. at 145. That provision is not at issue in this appeal. The
court held that the trial court did not err in prohibiting military training uses. Id.
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No. 53898-9-II
nonconforming use,” and (2) to fashion a remedy that “reflect[s] that only the more recent
increases in noise levels constitute an expansion of use.” Id. at 21, 22.
Regarding practical shooting uses, the court concluded that this part of the trial court’s
injunction was vague because it was not reasonably clear what constituted “practical shooting
uses” other than regularly scheduled practices and competitions. Id. at 24. In addition, the court
noted that the trial court’s original order found that activities including practical shooting
competitions had caused an increase in noise levels only in the previous five to six years. Id. at
23-24. The court remanded with specific instructions for the trial court (1) “to clarify whether
‘practical use’ includes only practical shooting practices and competitions or whether practical
use includes other conduct,” and (2) to fashion a remedy that “reflect[s] that only the more recent
increases in noise levels constitute an expansion of use.” Id. at 23, 24.
This court vacated in part the trial court’s land use injunction and remanded “with
instructions to comply with this court’s instructions regarding the permanent injunction.” Id. at
28.
Remand from Kitsap Rifle II
On remand from Kitsap Rifle II, the County in May 2019 filed a motion to enter an order
amending the February 2016 supplemental judgment. The County submitted a proposed order
with the motion.
The Club subsequently filed another motion to reopen the record. The Club sought to
introduce evidence of “the difference in the firearms used at the Club before and after 2006 that
constituted a sound expansion,” “the difference in practical shooting activities at the Club before
and after 2006 that constituted a sound expansion,” and “the relative interests of the parties and
the public before issuing a new injunction remedy.” CP at 364. The Club argued that this
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No. 53898-9-II
evidence was necessary for the trial court to resolve factual questions raised in Kitsap Rifle II and
that the answers to these questions could not be determined from the existing record.
The Club also filed a memorandum opposing the County’s motion. In the opposition, the
Club proposed definitions for various terms for the trial court to consider in refashioning the
terms of the injunction. In response, the County filed a revised proposed order. At oral
argument, counsel for both the County and the Club represented that the parties had agreed on
some of the terms of the proposed order.
The trial court did not rule on the Club’s motion to reopen the record. Instead, the court
opted to rule on the County’s motion to enter an amended order. The court reasoned that if it
entered an order on the County’s motion, the Club’s motion to reopen the record would be moot.
The trial judge noted that she would be retiring soon and that the case would be assigned
to a different judge if the court reopened the record. The court further stated:
[W]hen I went through your materials . . . I thought; how do I resurrect in my own
mind all of the evidence that came in in 2011, 2012? . . . There is just no way I
could do that. I confess, I throw myself on my sword, I couldn’t do it. And so
when I’m looking at, you know, what’s an explosive device and how big does it
have to be, and .30-caliber this, I’m at a loss. And everyone who potentially is my
successor is at a loss, right? I can’t imagine if somebody else is going to look at
my findings and then look at all the history of the case, both the . . . appellate
decisions but also the orders that have been entered subsequent, and be able to ferret
out that information.
Report of Proceedings (RP) at 7-8.
The trial court decided to enter the County’s revised proposed order amending the
February 2016 supplemental judgment. The court stated its reasoning on the record:
I appreciate that that will probably be Kitsap III from Pierce County, but I’m not
sure what else to do. I cannot set this for an evidentiary hearing, certainly not before
myself, and I appreciate that this is already on appeal per the Club’s notice of appeal
of my last decision, so I think it makes most sense that it go up to the Court of
Appeals altogether [sic]. And if the Court of Appeals believes there needs to be an
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evidentiary hearing, it’ll come back down for definition of those terms as the Club
is proposing.
RP at 31.
In June 2019, the trial court entered an Order Amending February 5, 2016 Order
Supplementing Judgment on Remand. The order replaced the declaratory judgment and land use
injunction provisions of the 2016 order. The revised declaratory judgment ruled that the
following uses at the shooting range were unlawful expansions of the Club’s nonconforming use:
1. military training uses;
2. the provision of firearms training courses sanctioned by the military and
provided by commercial, for-profit businesses;
3. discharging cannons or causing exploding targets to explode;
4. the discharge of fully automatic firearms or the discharge of semiautomatic
rifles larger than nominal .30 caliber; and
5. more than two scheduled practical shooting competitions per month and more
than ten scheduled practical shooting practices per month.
CP at 446. The order also issued a revised “Land Use Injunction” prohibiting those uses. CP at
446. The order did not define any of the terms used in the injunction.
The Club appeals the trial court’s June 2019 order.
ANALYSIS
A. LEGAL PRINCIPLES
1. Expansion of Nonconforming Use
A nonconforming use is one that lawfully existed before a change in regulation and may
continue even though the use does not comply with current regulations. Kitsap Rifle I, 184 Wn.
App. at 268. A nonconforming use may continue because requiring immediate cessation of use
would be unfair and potentially would violate due process. Id.
A nonconforming use may grow in volume or intensity over time. Id. A property owner
generally may continue a protected nonconforming use. Id. However, “there is no right to
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‘significantly change, alter, extend, or enlarge the existing use.’ ” Id. (quoting Rhod–A–Zalea &
35th, Inc. v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 (1998)). A nonconforming use
“ ‘may be intensified, but not expanded.’ ” Kitsap Rifle I, 184 Wn. App. at 268 (quoting City of
University Place v. McGuire, 144 Wn.2d 640, 649, 30 P.3d 453 (2001)). This court in Kitsap
Rifle I explained how to distinguish 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.”
Id. at 269 (quoting Keller v. City of Bellingham, 92 Wn.2d 726, 731, 600 P.2d 1276 (1979)).
2. Law of the Case
The law of the case doctrine binds this court to the prior appeal’s holdings. Humphrey
Indus., Ltd. v. Clay St. Assocs. LLC, 176 Wn.2d 662, 669, 295 P.3d 231 (2013). Questions that
were decided by the prior appellate decision, or that could have been decided if they had been
raised on appeal, “ ‘will not again be considered on a subsequent appeal if there is no substantial
change in the evidence.’ ” Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196(1988) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965)).
In Kitsap Rifle I, this court affirmed the trial court’s conclusion that the increased noise
levels caused by explosive devices, higher caliber weaponry greater than .30 caliber, and
practical shooting was an expansion of the Club’s nonconforming use. 184 Wn. App. at 272-73.
Because this court affirmed this conclusion in Kitsap Rifle I, the trial court’s conclusion of law
regarding the increased noise levels is the law of the case, and we are bound by that conclusion.
Folsom, 111 Wn.2d at 263.
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However, in Kitsap Rifle II, this court vacated and remanded the trial court’s conclusions
of law regarding explosive devices, higher caliber weaponry, and practical shooting. Slip op. at
27-28. Accordingly, those conclusions did not become the law of the case and we are not bound
by them in this appeal.
3. Standard of Review
In reviewing a declaratory judgment, we review whether substantial evidence supports
the trial court’s findings of fact and, if so, whether the findings support the trial court’s
conclusions of law. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369(2003). Substantial evidence is the “quantum of evidence sufficient to persuade a rational fair-
minded person the premise is true. Id. at 879. Unchallenged findings of fact are verities on
appeal. See Folsom, 111 Wn.2d at 263.
In Kitsap Rifle I, the Club did not assign error to any of the trial court’s findings of fact
regarding the Club’s expansions of its nonconforming use. 184 Wn. App. at 267. Consequently,
this court treated the unchallenged findings as verities on appeal. Id. Therefore, those findings
also are verities in this appeal. See Folsom, 111 Wn.2d at 263.
Whether an activity constitutes an expansion or an intensification is a question of law.
Kitsap Rifle I, 184 Wn. App. at 272. Therefore, we review de novo the trial court’s legal
conclusions on this issue. Elliott Bay Adjustment Co., Inc. v. Dacumos, 200 Wn. App. 208, 213,
401 P.3d 473 (2017).
We generally review the terms of an injunction for an abuse of discretion. Kitsap Rifle I,
184 Wn. App. at 297. “Trial courts have broad discretionary power to fashion injunctive relief to
fit the particular circumstances of the case before it.” Hoover v. Warner, 189 Wn. App. 509,
528, 358 P.3d 1174 (2015). But we review de novo questions of law regarding injunctions. See
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Kitsap Rifle I, 184 Wn. App. at 297. In addition, a trial court necessarily abuses its discretion if
it based its ruling on an erroneous view of the law. Tedford v. Guy, 13 Wn. App. 2d 1, 13, 462
P.3d 869 (2020).
The Club argues that if this court vacates the trial court’s declaratory judgment, the court
also must vacate the corresponding injunction. The County does not appear to dispute this
contention.
B. EXPANSION OF USE ANALYSIS
The Club argues that the trial court did not follow this court’s instructions in Kitsap Rifle
II on remand in that the prohibition on the use of cannons and exploding targets, the discharge of
fully automatic weapons and the discharge of semiautomatic rifles greater than .30 caliber, and
the number of practical shooting competitions and practices do not reflect that only expansions
of nonconforming use and not mere intensifications can be prohibited. We conclude that the trial
court did not err with regard to the first two prohibitions, but did err in limiting the Club’s
regularly scheduled practical shooting to two competitions and 10 practices per month.
1. Cannons and Exploding Targets
The June 2019 order found that “discharging cannons or causing exploding targets to
explode” constituted an unlawful expansion of the Club’s nonconforming use. CP at 446. The
Club argues that the June 2019 order did not clarify which explosive devises and what specific
use of the cannons and exploding targets created the expansion. We conclude that the Club
waived this argument.
In the trial court, the County’s attorney stated that “at least with respect to the order as it
pertains to exploding targets. That’s a compromised agreement.” RP at 25. The Club’s attorney
replied, “Yeah; and, you know, we don’t want to rehash things that are common in the two
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orders.” RP at 25. Later, the County’s attorney stated, “1(c) and 6(a)(3), discharge of cannons
or causing exploding targets to explode. That right there, that phrase, is agreed upon amongst
the parties. Now the definitions, that’s different, but that particular clause is agreed upon.” RP
at 26. The Club’s attorney did not object to that statement.
The Club argues only that it took the position that this language was acceptable only if
the court defined “cannons” and “exploding targets.” But that is a different argument (discussed
below); that argument does not address whether the use of cannons and exploding targets
constituted an expansion of use.
The trial court record shows that the Club agreed that the use of cannons and exploding
targets constituted an expansion of use. We decline to consider the Club’s argument that the trial
court erred in ruling that discharging cannons or causing exploding targets to explode constituted
an unlawful expansion of the Club’s nonconforming use.
2. Fully Automatic Firearms and Semiautomatic Rifles Greater than .30 Caliber
The trial court’s 2012 nuisance injunction prohibited the use of “fully automatic
firearms” and “rifles of greater than nominal .30 caliber.” CP at 114. The February 2016 order
prohibited the use of “high caliber weaponry greater than .30 caliber.” CP at 124. This court in
Kitsap Rifle II remanded with specific instructions to the trial court (1) “to clarify which
weapons are prohibited because they create noise levels that constitute an impermissible
expansion of the Club’s nonconforming use,” and (2) to fashion a remedy that “reflect[s] that
only the more recent increases in noise levels constitute an expansion of use.” Slip op. at 21, 22.
The June 2019 order found that “the discharge of fully automatic firearms or the
discharge of semiautomatic rifles greater than nominal .30 caliber” constituted an unlawful
expansion of the Club’s nonconforming use. CP at 446. The Club argues that the trial court
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No. 53898-9-II
reached this conclusion without any finding regarding the specific firearms or caliber of those
firearms that created the expansion of use. We disagree.
The trial court’s 2012 findings of fact support the conclusion that discharge of fully
automatic firearms and the discharge of semiautomatic rifles greater than nominal .30 caliber
constituted an unlawful expansion. The court found that the “[u]se of fully automatic weapons,
and constant firing of semi-automatic weapons led several witnesses to describe their everyday
lives as being exposed to the ‘sounds of war,’ ” which the trial court found persuasive. CP at
102 (emphasis added). By contrast, “[r]apid-fired shooting” and the “use of automatic weapons .
. . at the Property occurred infrequently in the early 1990[]s.” CP at 102.
In addition, this court in Kitsap Rifle I noted that the trial court had concluded that
increased noise levels caused by, among other things, “ ‘high caliber weaponry greater than [.]30
caliber’ ” constituted an expansion of the Club’s nonconforming use. 184 Wn. App. at 272. The
court held that these “activities did constitute an impermissible expansion of use.” Id. at 273. In
other words, the court affirmed the trial court’s conclusion of law that use of weapons greater
than .30 caliber and other activities constituted an expansion. As noted above, that holding is the
law of the case. Folsom, 111 Wn.2d at 263.
This court in Kitsap Rifle II interpreted Kitsap Rifle I as holding that “the noise created by
the use of fully and semiautomatic weapons created an impermissible noise expansion because it
contributed to the shooting range’s dramatically increased noise levels.” Kitsap Rifle II, slip op.
at 21-22. And the court in Kitsap Rifle II stated that “the trial court did not make any findings
regarding increased noise levels by high caliber weapons other than fully and semiautomatic
weapons.” Slip op. at 22 (emphasis added).
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The Club appears to argue that the trial court should have engaged in additional fact
finding to clarify which fully and semiautomatic weapons increased the noise levels beginning in
around 2006. But because the February 2016 order too broadly prohibited the use of all weapons
greater than .30 caliber, this court in Kitsap Rifle II required clarification only as to which
weapons were found to create an impermissible expansion. Kitsap Rifle II, slip op. at 21. The
June 2019 order provided this clarification based on the 2012 findings, limiting the expansion to
the discharge of fully automatic weapons and the discharge of semiautomatic rifles greater than
.30 caliber. This court in Kitsap Rifle II did not request clarification of which specific types of
fully automatic firearms and semiautomatic rifles caused the expansion. Therefore, we decline
to engage in the fact-finding requested by the Club.
We conclude that the trial court did not err in ruling that the Club’s discharge of fully
automatic firearms and the discharge of semiautomatic rifles greater than nominal .30 caliber
constituted an unlawful expansion of the Club’s nonconforming use and in prohibiting those
activities.
3. Practical Shooting Competitions and Practices
In 2012, the trial court entered a conclusion of law that increased noise levels caused by
(among other things) practical shooting constituted an expansion of use. The February 2016
order prohibited “[p]ractical shooting, [sic] uses, including organized competitions and practice
sessions.” CP at 124. This court in Kitsap Rifle II remanded with specific instructions to the
trial court (1) “to clarify whether ‘practical use’ includes only practical shooting practices and
competitions or whether practical use includes other conduct,” and (2) to fashion a remedy that
“reflect[s] only the more recent increases in noise levels constitute an expansion of use.” Slip
op. at 23, 24.
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The June 2019 order concluded that “more than two scheduled practical shooting
competitions per month and more than ten scheduled practical shooting practices per month”
constituted an unlawful expansion of the Club’s nonconforming use. CP at 446. The Club
argues that the trial court reached this conclusion without any findings regarding the number of
practical shooting competitions and practices that occurred before the expansion. We agree with
the Club.3
The trial court found in 2012 that the shooting range “is frequently used for regularly
scheduled practical shooting practices and competitions, which use the shooting bays for rapid-
fire shooting in multiple directions.” CP at 99. The court also found that “[r]apid-fire shooting
. . . occurred infrequently in the early 1990s.” CP at 102. But the court’s 2012 findings of fact
did not specifically address the number of practical shooting competitions and practices that
occurred before or after the expansion.
The County relies on evidence presented at the 2012 trial regarding the number of
activities at the shooting range. The County claims that this evidence shows that in the 2004-
2006 time frame there were less than the 12 practical shooting competitions and practices
allowed in the 2019 order.
However, the trial court made no findings of fact in 2012 regarding this evidence. In
addition, the trial court’s June 2019 order could not have been based on this evidence because
the trial court admitted that it did not remember the trial evidence. Therefore, the County cannot
3
The trial court did comply with the first instruction in Kitsap Rifle II by clarifying that only
scheduled practical shooting competitions and practices were limited.
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rely on this evidence.4 In any event, the Club claims that the evidence at trial showed that there
may have been as many as 18 scheduled events in a month before the expansion in 2005 or 2006.
We conclude that the trial court erred in concluding that more than two scheduled
practical shooting competitions per month and more than 10 scheduled practical shooting
practices per month constituted an unlawful expansion of the Club’s nonconforming use because
it does not reflect only the more recent noise levels, as instructed by this court in Kitsap Rifle II.
4. Summary
We vacate the part of the trial court’s declaratory judgment ruling that “more than two
scheduled practical shooting competitions per month and more than ten scheduled practical
shooting practices per month,” CP at 446, constituted an unlawful expansion of the Club’s
nonconforming use and the corresponding injunction provision. We remand for the trial court to
conduct additional fact finding on the number of practical shooting competitions and practices
held at the Club before the expansion of the Club’s nonconforming use in 2005 or 2006. The
trial court should prohibit only practical shooting competitions and practices above that number.
We affirm the other portions of the declaratory judgment.
C. UNDEFINED TERMS IN 2019 INJUNCTION
The Club argues that portions of the injunction in the June 2019 order must be vacated
because the trial court should have defined the terms “cannons,” “exploding targets,” “rifles
greater than nominal .30 caliber,” and “practical shooting.” We conclude that the trial court’s
4
In addition, the witness who presented this evidence testified that his summaries were
incomplete and that there were gaps in his data collection.
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No. 53898-9-II
injunction enjoining the discharge of “cannons” must be vacated, but not the other portions of the
injunction.5
1. Legal Principles
CR 65(d) sets forth the form and scope of an injunction and provides that “[e]very order
granting an injunction . . . shall set forth the reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail, and not by reference to the complaint or other document, the
act or acts sought to be restrained.” Because Federal Rule of Civil Procedure (FRCP) 65(d) is
identical to CR 65(d), we may look to cases interpreting the federal rule for guidance. All Star
Gas, Inc. of Wash. v. Bechard, 100 Wn. App. 732, 736-37, 998 P.2d 367 (2000).
FRCP 65(d) “ ‘was designed to prevent uncertainty and confusion on the part of those
faced with injunctive orders, and to avoid the possible founding of a contempt citation on a
decree too vague to be understood.’ ” Fortyune v. Am. Multi–Cinema, Inc., 364 F.3d 1075, 1087
(9th Cir. 2004) (quoting Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 L. Ed. 2d 661(1974)). As a result, FRCP 65(d) requires that the language of an injunction be reasonably clear
so that an ordinary person will know precisely what action is prohibited. United States v.
Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). Injunctions do not violate the requirements of
FRCP 65(d) “unless they are so vague that they have no reasonably specific meaning.” Id.
2. “Cannons” and “Exploding Targets”
The Club argues that the trial court’s June 2019 order should have defined the terms
“cannons” and “exploding targets” because they are vague and ambiguous. We agree with
regard to “cannons.”
5
Initially, the County argues that we decline to consider the Club’s arguments because the Club
did not challenge the meaning of these terms in the first two appeals. We disagree. The meaning
of these terms was not at issue in the prior appeals.
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No. 53898-9-II
In the trial court, the Club proposed definitions of these terms. The County does not
explain what it believes the term “cannons” means. The term could refer to any number of
things; there are many different types of “cannons.” It is unclear what type of cannon the trial
court was referencing. The County notes only that the trial court found in 2012 that the use of
cannons and exploding targets caused “loud ‘booming’ sounds in residential neighborhoods
within two miles of the property, and cause houses to shake.” CP at 103. Therefore, we remand
this part of the injunction for the trial court to define the operative term “cannons.”
On the other hand, term “exploding target” has a generally accepted meaning based on
the trial court’s finding in 2012 that exploding targets caused loud, booming sounds in nearby
residential neighborhoods. An exploding target should be understood to be a target the triggers
an explosive device within the target that results in a loud noise.
3. “Rifles Greater than Nominal .30 Caliber”
The Club argues that the trial court’s June 2019 order should have defined the terms
“rifle” and “nominal .30 caliber” because their meaning is uncertain. We disagree.
In the trial court, the Club proposed definitions of these terms. The County does not
explain what it believes “rifle” and “nominal .30 caliber” mean. However, we believe that these
terms have generally accepted meanings, particularly among gun owners and users. Therefore,
the prohibition of rifles greater than .30 caliber in the injunction is reasonably clear. We hold
that the trial court did not err in failing to define that phrase.
4. “Practical Shooting”
The Club argues that although the trial court defined “practical shooting” in the 2012
judgment, it is unclear whether the court intended that definition to apply to the June 2019 order.
And the Club claims that the terms within that definition themselves are unclear. We disagree.
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No. 53898-9-II
The 2012 judgment stated that practical shooting competitions and practices “use the
shooting bays for rapid-fire shooting in multiple directions.” CP at 99. The Club acknowledges
that this description constitutes a definition of “practical shooting.” And in the trial court, the
Club proposed adoption of this definition.
We believe that the trial court’s 2012 finding of fact provides a reasonable definition of
“practical shooting.” In addition, the terms within that definition have generally accepted
meanings that are reasonably clear. Therefore, we hold that the trial court did not err in failing to
define that term.
D. BALANCING THE EQUITIES
The Club argues that the trial court erred by issuing the land use injunction without
balancing the relative interests of the parties and the public. We disagree.
In general, issuing an injunction may involve an equitable balancing of the relative
interests of the parties and the interests of the public. Tyler Pipe Indus., Inc. v. Dep’t of Revenue,
96 Wn.2d 785, 792, 638 P.2d 1213 (1982). However, the issuance of the land use injunction was
not at issue on remand from Kitsap Rifle II. This court remanded for the trial court to revise the
language of the injunction. Therefore, we conclude that the balancing of the equities
requirement does not apply here.
CONCLUSION
We hold that the trial court erred by concluding that “more than two scheduled practical
shooting competitions per month and more than ten scheduled practical shooting practices per
month” constituted an unlawful expansion of the Club’s nonconforming use. In addition, we
conclude that the trial court erred by enjoining the discharge of “cannons” without defining that
term.
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No. 53898-9-II
Accordingly, we vacate in part the declaratory judgment and land use injunction in the
trial court’s 2019 order and remand with specific instructions for the trial court to (1) determine
the number of practical shooting competitions and practices held at the Club before the
expansion of use in 2005 or 2006 and to prohibit only those competitions and practices above
that number, and (2) define the terms “cannons.” We affirm the remaining portions of the June
2019 order’s declaratory judgment and land use injunction.
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.
MAXA, J.
We concur:
WORSWICK, P.J.
MELNICK, J.
22