HomeMy WebLinkAbout1-K - 06-2-00348-8-129 AMENDED PERMANENT INJUNCTION1�
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FILED
201?���d►
JEFFEr,
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR JEFFERSON COUNTY
JEFFERSON COUNTY, a political
subdivision of the State of Washington '
Plaintiff,
VS.
MICHAEL ANDERSON,
Defendant
Case No.: 06-2-00348-8
AMENDED
PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
THIS MATTER having come on regularly for hearing this 14th day of September, 2012,
on the Plaintiff Jefferson County's Motion for an Amended Permanent Injunction Granting
Continuing Jurisdiction; and Jefferson County having appeared through Scott W. Rosekrans,
Prosecuting Attorney by his deputy, David Alvarez, Chief Civil Deputy Prosecuting Attorney;
and the defendant having appeared; and the Court having considered the various Declaration
submitted by the Plaintiff and any submissions of the Defendant; and the Court having heard oral
argument;
NOW, THEREFORE, THE COURT MAKES THE FOLLOWING
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSFCUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 1 Port Townsend, WA 98368
(360)385-9180
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I. FINDINGS OF FACT
1. Defendant Michael Anderson is the title owner of certain real property located withil
unincorporated Jefferson County, real property known as 890 Old Hadlock Road, Por
Hadlock, WA, also being known by its Assessor's Parcel Number, APN 901-112-013
That parcel will be known as the Subject Property or "SP."
2. One or more junk vehicles (including vehicle hulks) has been accumulated, dismantled.
parked, placed, or stored upon the SP.
3. Mr. Anderson operates a business, specifically Michael's Custom Rebuild and Towing.
4. He has licensed that business only from a distinct property he owns in Irondale, Jefferson
County, known as 270 W. Maude Street.
5. The only state license ever held by Defendant was as a hulk hauler.
6. He does not now hold such a license.
7. Defendant has never been licensed by the State of WA as a scrap processor or a wrecki
yard at any address in Jefferson County at any time.
8. A rental home, not occupied by the Defendant, is located on the SP.
9. Since at least 1997 the Plaintiff has alleged that the Defendant has been in violation
County codes at and upon the SP.
10. Mr. Anderson received a letter in September 1999 on behalf of the Plaintiff from
Chief Civil Deputy Prosecuting Attorney describing the alleged code violations.
AMENDED PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
Page 2
SCOTT W.ROSEKRANS
PROSECUTING ATTORNEY
FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Port Townsend, WA 98368
(360)385-9180
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11. The condition of the SP is visible to any person A) standing on the right-of-way known
Old Hadlock Road, B) located at or within an adjacent business (a veterinary hospital)
C) standing upon an adjacent parcel.
12. The condition of the parcel has been the subject of complaints by neighbors to
Plaintiff's Public Health department.
13. At least one Sheriff's Deputy visited on several occasions with Mr. Anderson at
westerly or valley side of the SP to discuss the alleged violations and possible reme
for the alleged violations.
14. Sheriffs Deputy Anthony Hernandez and former Public Health employee Mark Nelsor
entered onto the SP on November 29, 2005 with the intent of speaking with Mr.
Anderson.
15. They went to the valley or westerly side of the SP looking for Mr. Anderson, becal
that is where Mr. Anderson was generally located. Mr. Anderson was not present.
16. Mr. Nelson, Deputy Hernandez, Public Health employee Alan Gardner and State Dept.
Ecology ("Ecology") employee Fern Svendson entered upon the SP, visiting the en1
site including the westerly end, on December 21, 2005.
17. During the December 21, 2005 visit to the SP Mr. Anderson was present.
18. Soil samples at four locations were taken by Mr. Nelson on that date.
19. The test results for those soil samples showed that the soil contained petro
hydrocarbons in the thousands of parts per million at all four sites where samples
taken.
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 3 Port Townsend, WA 98368
(360) 385-9180
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20. The hydrocarbons present in those soil samples occurred because Defendant Anders(
did not follow best management practices when accepting, storing, dismantling and/
wrecking junk vehicles for the SP.
21. Ecology has performed a Site Hazard Assessment on the SP and ranked it a "1," meaning
its risk to the environment is as great as any other parcel in this state that has received a
Site Hazard Assessment.
22. The Defendant voluntarily signed a Performance Contract with the County in April 2006.
23. That Performance Contract had and has legal consequences.
24. Mr. Anderson did not comply with his obligations under that Performance Contract.
25. A Verified Complaint was filed in late 2006 and an Amended Verified Complaint w
filed on January 22, 2007seeking to declare two locations where the Defendant operat,
his business, one in Irondale and one at the SP, as public nuisances and seeking judici
issuance of a Warrant of Abatement.
26. The Court found that a public nuisance existed at the SP and entered a Partial
Judgment so concluding on May 30, 2008.
27. The SP continues to be occupied by and burdened with solid waste (in violation of
and local solid waste codes) and more than two junk vehicles.
28. An employee of Jefferson County Public Health, Marjorie Boyd, and a WA State Tro(
charged with inspecting and regulating hulk hauler, scrap processors and wreckers,
Walt Chartrand, entered onto the SP on October 1 and October 6, 2009 pursuant to a
34 request to enter upon land.
AMENDED PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
Page 4
SCOTT W.ROSEKRANS
PROSECUTING ATTORNEY
FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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29. Defendant Mike Anderson was present on those dates in October 2009 and he col
to the entry upon land after telephone consultation with his attorney.
30. What Ms. Boyd and Trooper Chartrand saw was the same conditions as described
i.e., the SP was and is occupied by and burdened with solid waste (in violation of s1
and local solid waste codes) and more than two junk vehicles.
31. In October 2009 Trooper Chartrand found at least 182 vehicles or junk vehicles that
would classify as junk vehicles.
32. Defendant asserts that 48 vehicle hulks or vehicles have been removed from the SP,
of which were sold by the Defendant.
33. Photographs of the SP taken by Ms. Boyd in early November 2010 indicate the
continued to be overwhelmed and cluttered by solid waste and junk vehicles.
34. Photographs of the SP taken by Ms. Boyd in February 2011 indicate the cluttered
quo remained at the SP.
35. Plaintiff filed pleadings asking the Superior Court to order the issuance of a Warrant o
Abatement so that certain piles of solid waste and some of the junk vehicles could bi
removed from the SP.
36. The Superior Court, after considering all the pleadings submitted by both parties, orde:
issuance of the Revised Warrant of Abatement and granted Partial Summary Judgment
March 9, 2011.
37. The Revised Warrant of Abatement was signed on March 10, 2011.
AMENDED PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
Page 5
SCOTT W.ROSEKRANS
PROSECUTING ATTORNEY
FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Port Townsend, WA 98368
(360)385-9180
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38. The Plaintiff obtained as part of the March 2011 Order for Partial Summary Judgrr
permanent injunctive relief prohibiting Defendant from undertaking certain actions at
SP.
39. Pursuant to that Revised Warrant of Abatement a massive clean-up of the SP
undertaken, a clean-up supervised by Public Health's Marjorie Boyd.
40. The massive clean-up included the removal of 77 tons of solid waste including numer
"junk vehicles" (as that term is defined in state law) that were removed primarily
Defendant Anderson.
41. Despite this clean-up more junk vehicles were either revealed by the clean-up or ar
at the SP as the clean-up progressed.
42. These remaining junk vehicles were chronicled by Ms. Boyd and a State Trooper in
and June of 2011.
43. On May 18, 2011, a State Trooper named Walt Chartrand, who holds the job title o
"Tow, wrecking yard inspector" went lawfully upon the SP to determine if there were
any more junk vehicles located upon the SP.
44. Trooper Chartrand has held his current job title for seven years.
45. During his inspection of May 2011 Trooper Chartrand observed some 57 vehicles on the
46. The Trooper determined that 39 of those 57 vehicles satisfied at least three (3) of the four
(4) criteria (as found in state law at RCW 46.55.010) that serve to determine whether a
particular vehicle or vehicle hulk is in fact a "junk vehicle" per state law.
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 6 Port Townsend, WA 98368
(360)385-9180
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47. The Trooper returned to his office and during the following few weeks compiled his
notes on to a matrix (see Attachment One to his Declarations of September and
December 2011).
48. The junk vehicles and vehicle hulks located at and residing upon the SP did not arrive
there lawfully because the SP is the subject of a Permanent Injunction preventing the
Defendant from bringing more junk vehicles to the SP.
49. Oral argument with respect to whether "Warrant of Abatement: Revision #2"
issue was held in Port Townsend, WA before Kitsap County Superior Court J
Jeannette Dalton on Friday, December 23, 2011, David Alvarez appeared for Pla
Jefferson County and Roy Rainey appeared for Defendant Michael Anderson.
50. Issuance of Warrant of Abatement: Revision #2 in February 2012 allowed the Jeffe
County Sheriff to remove the remaining solid waste, junk vehicles and vehicle hulks.
51. In total, some 221 vehicles or vehicle hulks were removed from the SP by the Defen,
Mr. Anderson.
52. Similarly, approximately 175 tons of solid waste was removed from the SP by a private
firm known as Peninsula Recycling and Auto Wrecking.
53. During the first quarter of 2012 Jefferson County Public Health consented to Mr
Anderson leaving on the SP approximately 110 to 120 items, some of which, from the
viewpoint of the County, amount to solid waste unlawfully disposed of at the SP.
54. The County learned in April 2012 that Defendant was returning junk vehicles to the SP it
direct violation of the permanent injunctive relief prohibiting such activity, injunctive
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 7 Port Townsend, WA 98368
(360)385-9180
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relief granted to the County as part of a Partial Summary Judgment Order entered by
Court in March 2011.
55. The County obtained an "Order of Contempt" against Mr. Anderson for this April 201
activity, the Order requiring him to pay the County some $1,959.
56. That sum has not yet been paid to the County, although he was ordered to do so by mic
July 2012.
57. The County holds the reasonable belief based on Defendant's behavior throughout thi
litigation that he will continue to defy and violate the permanent injunctive relief th
County obtained in March 2011.
58. The County seeks a distinct "Amended Permanent Injunction" to make clear what
by the Defendant are prohibited by Court Order.
And from these Findings of Fact the Court makes the following:
CONCLUSIONS OF LAW
A. This Court has and continues to have personal jurisdiction over the Defendant
Anderson.
B. The Court has jurisdiction over the real property in question (APN #91-112-013)
that real property is located within Jefferson County.
C. Jefferson County has proven to this Court's satisfaction that a "public nuisance" as
term of art is described in state law exists at the SP.
D. The public nuisance at the SP is a detriment to the general health, safety and welfare
the populace of Jefferson County causing actual and substantial harm includii
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 8 Port Townsend, WA 98368
(360) 385-9180
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specifically but not exclusively, possible harm to a nearby salmon -bearing stream kn
as Chimacum Creek. This harm was and is immediate and irreparable.
E. Jefferson County has a clear legal and equitable right to protect the health, welfare
general safety of its citizens by obtaining a Warrant of Abatement to remove the "pt
nuisance" located at the SP.
F. The SP continues to have the status of a public nuisance, in part, because of contaminate
soil present there and, in part, because of the solid waste and junk vehicles present there.
G. Defendant has had full opportunity to be heard with respect to each and every "Warrai
of Abatement" issued on behalf of the Plaintiff County.
H. Defendant has had full opportunity to be heard with respect to the relief sought
September 2012, specifically the Reduction of the Warrants of Abatement to a "Spec
Assessment" of some $16,638.77 and the request for the entry of an "Amen(
Permanent Injunction with Continuing Jurisdiction."
I. The entry upon the SP by Marjorie Boyd, Trooper Chartrand and others during the sr
and summer of 2011 was performed pursuant to the "Revised Warrant of Abatement"
was therefore lawful.
J. Defendant Michael Anderson had been operating an illegal and unlawful
processing facility at the SP until such time as the permanent injunctive relief wa;
obtained by the Plaintiff.
K. Defendant Michael Anderson has been operating an illegal and unlawful wrecking yard a
the SP until such time as the order granting permanent Injunctive relief was entered.
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 9 Port Townsend, WA 98368
(360)385-9180
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L. Defendant Michael Anderson cannot be and is not "grandfathered" as a legal
conforming use for scrap processing or as a wrecking yard at the SP because those
occurring at or upon the SP have never been legal, lawful or licensed by the State of WA.
M. Currently located upon and at the SP is solid waste in a quantity that would, if brought
the attention of this court through admissible evidence, violates the Jefferson
Solid Waste Code now codified at Chapter 8.10 of the Jefferson County Code.
N. The Warrants of Abatement issued to Plaintiff Jefferson County were lawful and
lawfully executed and returned to the Court by the Plaintiffs submissions of
2012.
O. Due to Jefferson County's abatement efforts, solid waste code violations at the SP
apparently ceased or reduced in frequency. However, it is necessary to enter a
mandatory and prohibitive injunction to ensure that such activity does not re -occur on
SP because Defendant's conduct has not demonstrated voluntary compliance with
state and Jefferson County laws relating to the proper handling and disposal of
waste. Therefore, Jefferson County has a well-grounded fear that it is more likely
not that unlawful activity regarding solid waste and junk vehicles will re -occur at the SP.
NOW, THEREFORE,
IT IS HEREBY ORDERED and ADJUDGED AS FOLLOWS that:
A) Certain real property located at 890 Old Hadlock Road, Port
Hadlock, WA within unincorporated Jefferson County also known to
the Jefferson County Assessor as Parcel Number 901-112-013 is
deemed, because solid waste, junk vehicles and petroleum
hydrocarbons are present at that site, is, constitutes and continues
to be a PUBLIC NUISANCE;
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 10 Port Townsend, WA 98368
(360)385-9180
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B) Defendant Michael Anderson continues to be and is permanently
enjoined from
• Crushing Motor Vehicles at, upon or within the
boundaries of a certain parcel of real property that he
owns within unincorporated Jefferson County,
specifically the parcel known as the SP also known as
Assessor's Parcel Number (or "APN") 901-112-013;
• Parting (disassembling or cannabilizing) Motor Vehicles
at, upon or within the boundaries of a certain parcel of
real property that he owns within unincorporated
Jefferson County, specifically the parcel known as the
SP, also known as APN 901-112-013;
• Processing scrap metal at, upon or within the
boundaries of a certain parcel of real property that he
owns within unincorporated Jefferson County,
specifically the parcel known as the SP, also known as
APN 901-112-013; and
• Depositing or leaving at or bringing or hauling to the
parcel known as APN 901-112-013 any solid waste,
including but not limited to junk vehicles, vehicle hulks,
vehicle parts, tires and/or any other personal property
which fits within the statutory definition of solid waste.
C) This Order shall serve in lieu of title(s) for said junk vehicles and
the abatement of the public nuisance shall consist of removing,
destroying, and disposing of any vehicle or parts thereof, and
stored upon the SP.
D) This Court retains continuing jurisdiction to enforce this order by
all lawful means including imposition of contempt sanctions and
fines.
E) Should competent evidence be presented to the Court that
unlawful activity regarding solid waste and/or junk vehicles is re-
occurring upon the SP, and upon application to the Court by the
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.Q. Box 1220
Page 11 Port Townsend, WA 98368
(360)385-9180
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Plaintiff for a Warrant of Abatement to abate such action(s), and
after notice to the Defendant, Jefferson County will be entitled to
prompt issuance of such a Warrant. Notice to Defendant under
this order shall be satisfied by service by mail pursuant to Civil
Rules 5(b)(2)(A) (service deemed complete upon the 3rd day
following the day the pleadings were deposited in the mail, but the
3rd day for purposes of this rule cannot be a weekend day or a
federal holiday). Defendant shall immediately notify the Plaintiff of
any change of his mailing address and notice to Defendant shall be
deemed sufficient if mailed to Defendant at the current mailing
address on file with the Plaintiff. If Defendant is represented by
counsel, then service shall be upon Defendant's counsel.
F) Issuance of the Warrant of Abatement sought by the Plaintiff via
the process described in E) above may occur on any date that is
15 or more days after notice to the Defendant has been deemed
complete (has occurred) in accordance with CR 5(b)(2)(A).
G) In the event that such a Warrant of Abatement is issued and an
abatement therein occurs, Jefferson County shall be allowed its
costs of abatement including removal, destruction, and disposal
charges, and for its administrative and legal costs, including costs
and fees of the renewed abatement action, and that these costs
incurred in any such abatement shall be filed with the court and
upon application reduced to a "Special Assessment" against said
SP, said "Special Assessment" constituting a priority lien against
said real property that will run with the land and shall be superior
to all other liens imposed on said real property, except for state,
county, and municipal taxes, with which it shall be in parity.
H) Defendant shall provide Plaintiff with a current USPS (snail mail)
mailing address and shall immediately inform Plaintiff of any
change in that current USPS address.
AMENDED PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
Page 12
SCOTT W. ROSEKRANS
PROSECUTING ATTORNEY
FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Port Townsend, WA 98368
(360)385-9180
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I) This matter shall come before the Superior Court for a status
hearing on the regular civil calendar for Friday, February 22, 2013
at 1 PM, Plaintiff's counsel to prepare the ""Note for Motion Docket."
NOTICE
VIOLATION OF THIS ORDER SHALL SUBJECT
THE VIOLATOR TO CONTEMPT OF COURT
PROCEEDINGS, UPON PROPER NOTICE TO THE
VIOLATOR. IF THE COURT FINDS A WILLFUL
VIOLATION OR OTHERWISE FINDS
DEFENDANT MICHAEL ANDERSON TO BE IN
CONTEMPT OF THE PROVISIONS OF THIS
ORDER, THE COURT MAY IMPOSE
APPROPRIATE SANCTIONS, INCLUDING
COURT COSTS AND PLAINTIFF'S REASONABLE
ATTORNEY'S FEES ARISING FROM THE
CONTEMPT OF COURT PROCEEDINGS.
Date:
Presented by:
l v
-&,-j ami,
DAVID ALVAREZ, WSBA 29194
Chief Civil Deputy Prosecuting Attorney
AMENDED PERMANENT INJUNCTION SCOTT W. ROSEKRANS
GRANTING COURT CONTINUING PROSECUTING ATTORNEY
JURISDICTION FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Page 13 Port Townsend, WA 98368
(360)385-9180
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On behalf of Plaintiff, Jefferson County
ndant, chael pAndrson
w.0g51z
AMENDED PERMANENT INJUNCTION
GRANTING COURT CONTINUING
JURISDICTION
Page 14
SCOTT W.ROSEKRANS
PROSECUTING ATTORNEY
FOR JEFFERSON COUNTY
Courthouse -- P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180