HomeMy WebLinkAbout1-O - 2018 01 26 Anderson - Order of Contempt Against Defendant2
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FILED
2010 JAN 26 P;- 5: 05
JEFFLi?N G.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR JEFFERSON COUNTY
JEFFERSON COUNTY, a political }Case No.: 06-2-00348-8
subdivision of the State of Washington )
} ORDER OF CONTEMPT
Plaintiff AGAINST DEFENDANT, INCLUDING
VS. ) FINDINGS OF FACT AND
MICHAEL ANDERSON, }CONCLUSIONS OF LAW
Defendant } HEARING: January 26, 2018 at 1:00 p.m.
I. JUDGMENT SUMMARY
Pursuant to RCW 4.64.030, this judgment shall be summarized as follows:
Judgment Debtors:
Judgment Debtors' Attorney:
Judgment Creditor:
Judgment Creditor's Attorneys:
Amount of Judgment:
Interest Owed to Date on Judgment:
Taxable Costs and Attorney's Fees:
Michael Anderson ("Mr. Anderson")
Joan Best
Jefferson County
Michael Haas, Jefferson County
Prosecuting Attorney and Philip C. Hunsucker,
Chief Civil Deputy Prosecuting Attorney
15 425.00 (including attorney's fees)
$ Zero
9 425.00 (included in amount listed above)
II. HEARING AND EVIDENCE REVIEWED
THIS MATTER came before this Court based on an Order Requiring Defendant Michael
Anderson to Show Cause why he was not in contempt of this Court's November 2, 2012 Amended
Permanent Injunction Granting Continuing Jurisdiction.
The Court has considered the following evidence:
28 jFROPOS'E01 ORDER OF CONTEMPT Michael Haas
bnw
AGAINST DEFENDANT, INCLUDINGJefferson County Prosecuting Attorney
FINDINGS OF FACT AND 1820 Jefferson Street/P.O. Box 1220
CONCLUSIONS OF LAW
PAGE 1 `+u,� +i�°$ Port Townsend, WA 98368
(360) 385-9180
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A. The County's Motion for Contempt for Failing to Comply with a Court Order and
Memorandum in Support and the Declarations and exhibits thereto.
B. The Declaration of Philip C. Hunsucker dated January 12, 2018,
C. The Mr. Anderson's Response,
D. The County's Reply.
E. The records on file in this matter.
F. Oral argument and testimony presented in open court on January 26, 2018.
III. FINDINGS OF FACT
Based on the argument of counsel for Plaintiff Jefferson County, and argument from counsel
for Mr. Anderson, and the evidence presented, the Court has thoroughly reviewed the pleadings and
records in this case, and finds as follows:
1. On March 9, 2011, this Court entered an Order Granting Partial Summary Judgment,
j which included a permanent injunction ("the Permanent Injunction").
2. The Permanent Injunction found that Mr. Anderson owned real property at 890 Old Port
I Hadlock Road, said real property having an Assessor's Parcel Number of 901-112-013 ("the Subject
Property" or "the SP.")
3. On March 19, 2012, two County Public Health Department employees, Alison Petty
and Pinky Feria Mingo, took an inventory of items left on the SP, after an abatement of solid waste
took place at the SP. Alison Petty prepared a photo log of the items remaining on the SP after the
abatement. Ms. Petty also took photographs of the SP on March 27, 2012 from a cherry picker
attached to a fire truck that showed the items left on the SP after the 2012 abatement. Ms. Petty
documented the items remaining on the SP as of March 27, 2012 in her May 9, 2012 declaration
(attached as Exhibit 2 to the November 14, 2017 Declaration of Roger Parker), which contains her
March 19, 2017 photo log her March 27, 2012 photos.
4. The Permanent Injunction found: (a) violations of the Jefferson County Code ("JCC")
Chapter 8.10 because of the illegal handling, storage and disposal of solid waste; (b) a public nuisance
as that term is defined in the law; (c) an illegal and unlicensed scrap processing business; (d) an illegal
[PROPOSED ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE 2
Michael Haas
agDN
� Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
'F;yf��Krtoa Port Townsend, WA 98368
(360) 385-9180
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and unlicensed wrecking yard; and, (e) numerous "junk vehicles" as that term is defined in the law.
5. The Permanent Injunction permanently enjoined Defendant Michael Anderson from
certain activities at the SP, specifically: (a) crushing motor vehicles; (b) parting, i.e., disassembling or
cannibalizing, motor vehicles; (c) processing scrap metal; and, (d) depositing or leaving at or bringing
or hauling to that location any motor vehicle hulk, trailer, fifth wheel, boat or other personal property
that did not or could not arrive at the SP under its own power.
6. Defendant Anderson violated the Permanent Injunction and on June 8, 2012, the Court
held him in contempt. June 8, 2012 Order of Contempt Against Defendant, Declaration of Philip C.
Hunsucker filed October 31, 2017, ¶13, Exhibit 8. In the June 8, 2012 Order of Contempt Against
Defendant, Mr. Anderson was ordered to pay the County a fine of $1,539.00, representing three days
of violations and the County's legal fees. Id.
7. The Court relied on Ms. Petty's May 9, 2012 declaration in holding Mr. Anderson in the
June 8, 2012 Order of Contempt Against Defendant. Indeed, Mr. Anderson himself relied on Ms.
Petty's May 9, 2012 declaration in Mr. Anderson's September 14, 2017 "Motion to Exempt from
Removal Items Approved to Stay in Declaration of Allison Petty Filed May 9, 2012." Motion to
Exempt from Removal Items Approved to Stay in Declaration of Allison Petty Filed May 9, 2012 at 1.
8. Ms. Petty's May 9, 2012 declaration serves as a baseline for determining what solid
waste remained on the SP as of March 27, 2012.
9. On November 2, 2012, the Court issued an Amended Permanent Injunction Granting
Continuing Jurisdiction ("2012 Amended Permanent Injunction") against Mr. Anderson with the same
prohibitions as the Permanent Injunction and granted continuing jurisdiction to enforce the 2012
Amended Permanent Injunction. A history of the decisions, findings of fact and conclusions of law
against Mr. Anderson are summarized in the 2012 Amended Permanent Injunction Granting
Continuing Jurisdiction at 2-8. After considering evidence of non -conforming use presented by Mr.
Anderson at that time, the Court held:
[FROPOSEOj ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE
Michael Haas
"fr�Jefferson County Prosecuting Attorney
w 1820 Jefferson Street/P.O. Box 1220
S1rfNJt Port Townsend, WA 98368
(360) 385-9180
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J. Defendant Michael Anderson had been operating an illegal and unlawful
scrap processing facility at the SP until such time as the permanent injunctive relieve
was obtained by the Plaintiff.
K. Defendant Michael Anderson has been operating an illegal and unlawful
wrecking yard at the SP until such time as the order granting permanent Injunctive (sic)
relief was entered.
L. Defendant Michael Anderson cannot be and is not "grandfathered" as a
legal non -conforming use for scrap processing or as a wrecking yard at the SP because
those uses occurring at or upon the SP have never been legal, lawful or licensed by the
State of WA.
Id, at 9. Based on these conclusions of law, the Court permanently enjoined Mr. Anderson from:
• "Parting (disassembling or cannibalizing) 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 with, in 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;"
• "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.
Id. at 11.
10. It was within Mr. Anderson's power to comply with every requirement of the 2012
I Amended Permanent Injunction.
11. On May 3, 2017 and May 23, 2017, Stuart Whitford, the Director of the Jefferson
County Department of Environmental Health (`Environmental Health"), and Roger Parker inspected
[TItOr 0SED! ORDER OF CONTEMPT Michael Haas
AGAINST DEFENDANT, INCLUDING aaH
av+rrHv
G7a Jefferson County Prosecuting Attorney
FINDINGS OF FACT AND 1820 Jefferson Street/P.O. Box 1220
CONCLUSIONS OF LAW
PAGE 4 ^'+� Port Townsend, WA 98368
(360) 385-9180
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'the SP. Environmental Health and Mr. Anderson tested 56 vehicles on the SP during May 2017 to
determine whether they qualify as junk vehicles under RCW 46.55.230 and JCC Section 8.10.100.
The inspection was not concluded, so Mr. Anderson and Environmental Health agreed to conclude it
later.
12. On May 26, 2017, the Court entered an Order Postponing Hearing on Nuisance Warrant
(Declaration of Philip C. Hunsucker filed October 31, 2017, Exhibit 2). One of the purposes of the
May 26, 2017 Order was to set additional time for further inspection of the SP. The May 26, 2017
Order Postponing Hearing on Nuisance Warrant states, "Because vehicles were not operable on May
23, 2017, those vehicles qualify as junk vehicles under [the JCC] and the applicable provision of the
RCW. Many of the yet untested vehicles, trucks, construction equipment or vessels ... may also
qualify as junk vehicles." Id. The May 26, 2017 Order Postponing Hearing on Nuisance Warrant
required a subsequent site inspection between September 1, 2017 and September 15, 2017. Id. It was
agreed that any vehicle that Mr. Anderson could get to operate in five minutes would not be considered
I' junk vehicles. Id., ¶7 at 3.
13. Between May 23, 2017 and September 13, 2017 extensive brush removal was
undertaken at the SP by Mr. Anderson. This made it possible to view more of the solid waste that had
previously been covered by the brush.
14. On September 13, 2017, Stuart Whitford, the Director of Environmental Health, and
Roger Parker again inspected the SP.
15. The results of the May 3, 2017, May 23, 2017 and September 13, 2017 inspections by
Environmental Health are reflected in the Declaration of Roger Parker filed on November 14, 2017.
16. Based on the May 3, 2017, May 23, 2017 and September 13, 2017 inspections by
Environmental Health, as reflected in the Declaration of Roger Parker filed on November 14, 2017,
solid waste on the SP has been brought onto the SP after March 27, 2012 in violation of the prohibition
in the Amended Permanent Injunction of: "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
[PROPOSER} ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE 5
H Michael Haas
y Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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of solid waste."
17. Mr. Anderson intentionally has disobeyed the 2012 Amended Permanent Injunction.
18. The County has moved to hold Mr. Anderson in contempt, contending that he continues
to (1) violate Chapter 8.10 of the JCC (relating to solid waste) by bringing personal property and junk
vehicles to the SP, (2) operate an illegal and unlicensed scrap processing and/or wrecking yard at the
SP; and, (3) tolerate, condone, generate and/or create a public nuisance, as that term is defined in the
law, at the SP.
19. Competent evidence was presented by the County in support of its contention that Mr.
Anderson has intentionally violated the 2012 Amended Permanent Injunction.
20. The Court finds that Mr. Anderson's failure to obey the 2012 Amended Permanent
Injunction constitutes contempt of this Court.
21. Mr. Anderson has failed to meet his burden of production or persuasion to show a lack
of intention or lack of ability to comply with the 2012 Amended Permanent Injunction.
22. The County has incurred attorney fees and costs of $9,425.00 in conducting further
research and prosecutorial efforts as a result of Mr. Anderson's failure to comply with the 2012
Amended Permanent Injunction.
23. Any Finding of Fact that should be a Conclusion of Law shall be deemed to be a
I Conclusion of Law and vice -versa also.
IV. CONCLUSIONS OF LAW
Based on the argument of counsel and evidence presented, the Court has thoroughly reviewed
the pleadings and records in this case, and assessed the credibility of the witnesses, and concludes as
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1. The purpose of contempt in a civil matter is to coerce the party into complying with the
mandate of the Court.
2. In determining whether the facts support a finding of contempt, the Court must strictly
construe the order alleged to have been violated and the facts must constitute a plain violation of the
I Order.
[fR9P6ff 1M ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE
Michael Haas
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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3. Pursuant to RCW 7.21.010(1)(b) and RCW 7.21.030, the County has demonstrated by a
f I preponderance of the evidence that Mr. Anderson disobeyed a mandate of this Court, and it was within
the power of Mr. Anderson to comply with the Court's Order.
4. The Court has considered the evidence presented by the County in light of RCW
11 7.21.010(1)(b) and RCW 7.21.030, as compared same to the injunctive relief granted the County in the
112012 Amended Permanent Injunction.
5. The County has shown by a preponderance of the evidence that Mr. Anderson has failed
II to comply with the 2012 Amended Permanent Injunction.
6. The County has met its burden of proving the elements of contempt of court under
RCW 7.21.010(1)(b) and RCW 7.21.030 by a preponderance of the evidence.
7. Mr. Anderson is in contempt of the 2012 Amended Permanent Injunction based on each
and every Finding of Fact listed above.
8. The evidence shows that civil contempt sanctions are necessary to coerce compliance
with the 2012 Amended Permanent Injunction.
9. Mr. Anderson's previous fine for violation of the Permanent Injunction was $1,539.00,
representing three days of violations. Mr. Anderson's violations of the Amended Permanent
Injunction are more extensive than his 2012 violations of the Permanent Injunction. Further, the prior
fine did not deter Mr. Anderson from violating the terms of the injunction. Accordingly, a greater fine
is necessary to cause him to comply with the Amended Permanent Injunction.
10. Mr. Anderson shall pay the County's legal fees for filing pleadings (and one associated
cost) in order to obtain this "Order of Contempt" in the amount of 9 425.00.
11, Mr. Anderson should pay to the County the amount of $6,000.00 as a consequence of
his contemptuous acts, said amount representing the fine.
V. ORDER
Based on the foregoing findings and conclusions, it is hereby ORDERED that:
1. Mr. Anderson is in Contempt of Court for failure to obey the 2012 Amended Permanent
Injunction.
[PHOPOSEB} ORDER OF CONTEMPT x Michael Haas
AGAINST DEFENDANT, INCLUDING Jefferson County Prosecuting Attorney
FINDINGS OF FACT AND 1820 Jefferson Street/P.O. Box 1220
CONCLUSIONS OF LAW
PAGE 7 :,,N Port Townsend, WA 98368
(360) 385-9180
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2. The County is awarded attorney's fees of 9 425.00.
3. Such finding of Contempt will be vacated if, no later than the close of business thirty
(30) calendar days after the entry of this Order of Contempt:
a. Mr. Anderson complies with 2012 Amended Permanent Injunction by removing from
the SP all personal property, including, but not limited to, vehicle hulks, trailers, solid waste, white
goods, scrap metal, debris, fifth wheels, trailers, vans and junk vehicles, that was not lawfully located
at or upon the SP as of March 27, 2012; and,
b. Mr. Anderson pays to the County the attorney's fees award listed in Paragraph 2 above.
All payments shall be made to the County by delivering the amount by cashier's check or money order
made payable to Jefferson County and sent to the Jefferson County Prosecutor, P. O. Box 1220, Port
Townsend WA, 98368, attention Philip C. Hunsucker.
4, Mr. Anderson remains enjoined from any violation of the Permanent Injunction made
part of the Amended Permanent Injunction.
5. Mr. Anderson's compliance with this Order of Contempt will be reviewed in the
Jefferson County Superior Court on mowh 30 , 2018 at 1:00 p.m. on the regular
civil motion calendar.
5.7 If it is shown that Mr. Anderson remains non -compliant at that time the Court may
consider other remedial sanctions as allowed under RCW 7,21.030.
DATED this day of 2018
28 (PROPOSE"i ORDER OF CONTEMPT K Michael Haas
AGAINST DEFENDANT, INCLUDING : ° 1, Jefferson County Prosecuting Attorney
FINDINGS OF FACT AND 1820 Jefferson Street/P.O. Box 1220
CONCLUSIONS OF LAW Port Townsend, WA 98368
PAGE 8
(360) 385-9180
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Presented by:
MICHAEL HAAS
Jefferson County Prosecuting Attorney
0, C. 46-'UA�
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
Attorney for Plaintiff, Jefferson County
Approved for entry:
Joan Best, WSBA #7247
Attorney for Defendant Michael Anderson
[FRO POSED ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE
�,y«rr �
Michael Haas
4' r Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
a.
��„r„i cv Port Townsend, WA 98368
(360) 385-9180
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CERTIFICATE OF SERVICE
I hereby certify that on the 121h day of January 2018, 1 caused to be served the foregoing
[PROPOSED] ORDER OF CONTEMPT AGAINST DEFENDANT, INCLUDING FINDINGS OF
FACT AND CONCLUSIONS OF LAW on Behalf of Plaintiff Jefferson County, Washington on the
following party at the following address:
Joan Best,
2072 Victoria Ave,
Port Townsend, WA 98368-7327
Email: i oanbest-lawveraearthlink. net
Attornevs for Defendant Michael Anderson
By: U.S. Postal Service, ordinary first-class mail,
IFROrOS'ED ORDER OF CONTEMPT
AGAINST DEFENDANT, INCLUDING
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PAGE 10
PROSECUTING ATTORNEY FOR
JEFFERSON COUNTY
By:
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
Attorneys for Jefferson County, WA
V Michael Haas
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180