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Home My WebLink AboutSSNW Superior Court Decision10/13/2006 07:48 FAX 2066827100 KARR_TUTTLE_CAMPBBLL Q001/012 KARR,TUTT.LE-CAMPBELL RECMVET) Seattle Office 1201 Third Avenue, Suite 2900 OCT 13 Seattle, Washington 98101 Telephone Number (206) 223-1313 Facsimile Number (206) 682-7100 ARPSON 1',"O 11YTYUEY FAx REQuEST FORM AND COVER SHEET We are transmitting; from a Canon 705 facsimile inachine. 1f you are not receiving our transmission clearly or Flo not receive the total number of pages noted below, please notify us as soon as possible at (206) 224-8112. Client/Matter No.: 3031.3-015 mate: October 13, 2006 From: Mark Johnsen Extension 8020 Return Via Interoffice Mail SEND To: Board of County Commissioners Attention Jefferson County Company Nattme Port Tovvnsend, WA CilylSfute 360-385-9382 Fax h nether 360-385-9100 Vcrilicamtion Nirmbcr 12 1'alal Paees Oneludini: Cova Sheet) David Alvarez 360,385-9186 Attentitmn F;i\ NanihLr Deputy Prosecuting Attorney 360-385-9135 Jefferson County Courthouse Company Name Verification Nunmbcr Port Townsend, WA 12 City/Stale. Total I'a i:4'ti tflmcltldlns: i..hyl:r li4C1} Al Scalf 360-379-4451 Atten(ion Fax Nunmbu Department of Community Developinea3t Company Name Verit€c;tlinn Nnnmher Part Townsend, WA 12 "C'ify/slaie Toni Pa,5 (hicllid nl'(-:[mt'[:r. l7i'l'-() COMMENTS/SPECIAL INSTRUCTIONS: PRIVILEGED AND CONFIDENTfAL COAAiVlUNICATION: The information contained in this nmegcage is rrivilgn; d, c(alfildeniial, or rstlterw ise exempt #torn disclosure and is intended solely for the use of the indivi(itial(s) mirmmed aboac. ll'you :ire not an intended recipient. you are hereby advised rhat any dissvminatlun., distributr(in or uopVin� of this communication is prohibited. If you have received this Ca1;%inmlle In error. ple"Lsc immediately noti#i• the sender b) lelephone and return the original fiiesimihe nmcssage it) Ihme sender b}' US. Nlail for which voisr expense m�ifl be rcimhursed. 'thank You. #596304 v 130313,015 10/13/2006 07;49 FAX 2066827104 KARR I'UTTLF_CAMPBELL Mark R. Johnsen (206) 224-8020 ini olinsen@,karrtuttlexom L•1rra7fl"�r.a K ARR•TITTTLE- CAMPBELL ?rri vderf ! W I Pn!jissinus•L!'neieec.- r'P'maaLrr 1201 Third hvenur�. S16W 2500, Srutlli, Waohingtnll %161 Tvlclrhonw{"tthi) Ys3-I[51,3, I uceim':h 0161 N52-7,100 I'vriln nr! f}i7iCe 19 t'.'. 4tnnriara! Plaza, 1100 S.W. Sixth Avenue, Portland. Clregtn. 6'30,1 Trlephrmo (M31'248-1330. Facnin le r +1137'3-41?8 PI'nse reply to S�mtcir Office. October 13, 2006 Attorney Client Communication Jefferson County Board of County Commissioners Jefferson County Courthouse P.O. Box 1220 Port Townsend, WA 98368 RE: Security ,Services Northwest, Inc. v. Jefferson County Dear Board of County Commissioners: Q002/012 Riv, "v1`E1kT,D DICT 13 �tfrt�auNcuoNrroco I am forwarding to you a copy of the Memorandum Opinion from: Kitsap County Superior Court Judge Jay Roof in the Security Services Northwest v, Jefferson County matter. In summary, Judge Roof' concluded that there was ample evidence to support a conclusion that Security Services Northwest dramatically increased the scope and scale of its use of the property in recent years. He rejected, however, the Dearing Examiner's determination that there had never been a lav,,ful commercial use on the subject property. Instead, Judge Roof concluded that there was a small scale use at the time of the enactment of the January 1992 zoning code. Accordingly, the Court concluded that SSNW's nonconforming ("grandfathered") use is limited to the scope and scale of the use on or before January 6, 1992. #596289 v 1 1 30113-015 10/13/2006 07:49 FAX 2066827100 KARR TUTTLE_CAMPBELL ljh003/012 Board of County Commissioners October 13. 2006 Page 2 I ' "C E:WED OCT 13 2005 JattosuN WUNW Oto Based on his determinations, Judge Roof has remanded the natter back to the Dearing Examiner to define in greater detail the scope and extent of SSNW's nonconforming use as of January b, 1992. Based on .fudge Roof's conclusions regarding the evidence, it appears likely that the use will be confined to a relatively small number of employees operating on the 20 - acre parcel (not the 3,600 acre Gunstone ownership), focusing on installation and monitoring of security systems, armored car deliveries and limited firearms training of SSNW's owes employees. I Mould be happy to discuss this decision further with you at your convenience. Very truly }fours, f Mark R. Johnsen MRJ/nlr Enclosure cc: David Alvarez Al Scalf 279781 10/13/2006 07:49 FAX 2066827100 AARR_TUTTLE_CAMPBELL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 RECEIVED FOR FILING KITSAP COUNTY CLERK OCT 0 9 2006 DAVID W PETERSCIN SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KITSAP COUNTY SECURITY SERVICES NORTHWEST, INC., vs. JEFFERSON COUNTY, Petitioner, Respondent, (A 004/012 R T -n , v� C �RTD OCT 13 2Dffi JEFffRSUN�OUNiY0C0 OCT 12 BY `. No. 06.2-00223-9 Memorandum Opinion THIS MATTER comes before the Court on Petitioner's appeal under the Land Use Petition Act (LUPA). Security Services Northwest (SSNW), the petitioner, is represented by Glenn J. Amster. Jefferson County (County), the respondent, is represented by mark R. Johnsen. SSNW appeals Jefferson County nearing examiner (HE) Iry Berteig's denial of its appeal of the issuance of three orders by the County. It argues the HE made over forty- seven errors in affnning the orders, including (1) finding all of SSNW's operations were illegal; and (2) failing to reach the merits ofSSNW's claim, namely that it has a prier nonconforming use. Pursuant to RC�V 36.700.140, this Court remands this case to the Jefferson County Hearing Examiner for further proceedings consistent with this Opinion. 117 MEMORANDUM OPINION JUDGE JAY B. ROOD KitsaP County Superior Court 614 Division Street MS -24 Port Orchard, WA 98366 10/13/2006 07:50 FAX 20166822100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 KARR_TUTTLE_CAMPBELL X 19005/012 Statement of Facts. SSNW provides security services and training. It was EILQ7 acquired by Joseph D'Amico in 1986, and in 1988, SSNW began leasing; property fromftLhfel Gunstone family for business use. Only because the parties discussed the history of Jefferson County's lanes use code, the following history is set out. In 1989 Jefferson County adopted its first land use code. Originally, the code was ruled illegal, but the Court of Appeals subsequently held that the code was not illegal. Rather, it was held unenforceable because it was incomplete. Jefferson Cou v v_ Lakeside Indus., 106 Wn. App. 380, 387, 23 P.3d 542 (2001). Instead of completing the 1989 code, the County adopted interim zoning that went into effect on January 6, 1992, and was finalized in 1994. As a result of the 1992 code, the Gunstone property and surrounding areas were zoned "rural residential," According to bath parties, SSNW's services have grown since at least 1992. The County asserts that in response to the events of September 11, 2001, SSNW shifted froJn a business of security system installation and monitoring, which dispatches security guards, into a "full blown military training; camp." Jefferson County's Brief in 073Pn,sWOK to Stay at 3, ;SSNW, on the other hand, contends that its growth over time is simply a lawfid response to customer needs and the more sophisticated security training and tactics available within the industry. See Opening Brief of Petitioner Security Setvices Northwest, Inc., at 7-9 [hereinafter Opening B)*A. Between 2003 and 2004, as part of this growth, SSNW constructed a new bunkhouse, a latrine, and a classroom. According to SSNW, it mistakenly believed no permits were required and did not acquire the proper permitting for this construction. Id. at 7 n.4. Sometime after 2001, the County began receiving; complaints about gunfire noise emanating frown the SSNW facilities. As a result, SSNW met with County representatives in order to formally establish its operation as a "legal nonconforming use," These specific orders issued by the County are at issue: 1. On July 8, 2005, the County issued a stop work order (SWO) for violating the Uniform Building Code (UBC). The SWO prohibited use of the non - permitted buildings, specifically the classroom and the bunkhouse, MEMORANDUM OPINION 2 � JUDGE JAY B. ROOF Kitsap €'ouatty Superior Court 614 Division St7eet MS -24 Port Orchard, WA 98366 13 2006 LAW 00 10/13/2006 07:50 FAX 2066827100 1 2 3 4 5 6 7 9 1D 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 KARR_TUTTLE_CAMPBELL Ij 006/012 0 C 13 2006 2. Just before August 1, 2005, SSNW applied for building permits and AM submitted materials to the County to establish its legal nonconforming use, but on August 11, 2005, the County issued a second stop work Order prohibiting the use and occupation of non -permitted structures. 3. A Notice and Order was also issued pursuant to Jefferson County Code (JCC} 18.50.0$0 prohibiting "[rjernodeling of the old house, and expanded uses without the necessary and appropriate permits." Land Use Petition at Exhibit D. Contending the orders were illegal and unenforceable, SS1-V41 continued its business activities. Opening Brief at 7. The County then filed in Jefferson County Superior Court for a temnporary restraining order (TRO), which was ranted on October 3, 2005, by Judge Craddock Verser. The TRO allowed use of one firing range "for required training for recertification of [SSi\V's] employees." Temporary Restraining Order- at 4. Both parties agreed that SSNW's administrative appeal would determine whether the stop work order was valid; however, in an Order Granting Preliminary Injunction, the Court determined that the stop work orders were enforceable during the course of the administrative appeal. A hearing on SSNW's appeal was held November 16-18, 2005. On December 21, 2005, the Court concluded that SSNW had violated the spirit and intent of the preliminary injunction, and it modified the injunction on a motion by the County requiring SSNW to post a $20,000 bond before conducting any further firearms certifications. Modified Order Grating Prelindn ary Injunction at 6. The modified injunction still pen -nits the discharge of ftrearrns for current employees for recertification purposes in the amnount required by the certification guidelines, up to 120 rounds in the extent the employee does not pass recertification the first time. Id. SSNW has not engaged in any fiream-is use on the property since this date. The HE issued his ruling on January 10. 2006, denying SSNW's appeal, and SSNW properly filed its LUPA petition with this Court on January 27, 2006, within the prescriber) ' time period. MEMORANDUM OPINION -3- JUDGE JAY B. ROOF Kitsap County Superior Court 614 Division Street •IS -24 Port Orchard, VVA 9,8306 �,qg1Y & 10/13/2005 07:51 FAX 2056827100 KARR_TUTTLE_CAMPBELL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24. 25 26 27 28 29 30 007/012 IR INC 1"" OCT 13 M6 Le al Standards: RCW 36,700 governs Judicial review of land use decisiortsj RCW 36.70C.130(1) establishes six standards under which a superior court can grant relief: a) The body or officer that made the land use decision engaged in unlawful procedure or failed to fallow a prescribed process, unless the error was harmless, b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise, c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; d) The land use decision is a clearly erroneous application of tbe, law to the facts; e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or f) The land use decision violates the constitutional rights of the party seeping relief, "in order to grant relief under this chapter, it is not necessary for the court to find that the local jurisdiction engaged in arbitrary and capricious conduct_" RCW 36.70C.130(2). Errors of law are reviewed de novo. City of university Place v. VcGuire, 144 Wn,2d 640, 647, 30 P.3d 453 (2001). Further, "[t]he decision as a whole will be reviewed for substantial evidence supporting the hearing examiner's decision. Substantial evidence is "a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.,,,' .Id. Analysis and Conclusions. SSNW raises numerous issues in its opening brief. First, SSNW assigns error to the HE's insistence on "tangible" evidence to support a nonconforming use. while the HE's word choice was perhaps i€€artful, it is clear that the HE preferred documentation over recollection, and this preference was the result of an appropriate weighing of the evidence. The HE does have the authority to find some evidence more credible than other evidence. Therefore, it was not error for the HE to give documentary evidence more ,,veight than the testimony of interested parties or the testimony of others not testifying contemporaneously to the events in question, particularly when the documentary evidence is inconsistent with the memories of some of the witnesses. MEMORANDUM OPINION -4- JUDGE h% Y" l3, ROOF Kitsap Count} Superior Court 614 Division Street MS -24 Port Orchard. WA 98366 IMMY RD I 10/13/2006 07:52 FAX 2066827100 KARR_TUTTLE_CAMPBELL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 74 25 26 27 28 29 30 ?i V14- 10008/012 i,�� 4 CLT 13 2006 Next, SSNW argues the HE failed to address SSNW's true arguments on appealt because he relied on information plead in SSNW's Notice of Appeal rather than pre- and past -hearing briefs. SSNW characterizes this error as a `.`failure to comprehend what constitutes a party's appellate argument" resulting in a failure to follow a prescribed process, contrary to requirements tinder RCW 36.70C.130(a). Id. at 14, According to the HE, his decision was based on "the testimony presented at the Open Record Appeal Dearing, the documents and exhibits admitted into the record, and the .Findings of Fact, Review Criteria, and Conclusions of Law," Findings, ConclusiOns and Decision at 31 [hereinafter Findings]. It is not improper for a hearing examiner to consider all evidence and pleadings that comprise the record in order to form his decision. After reviewing the record and the HE's decision in this case, the Court finds that the HE properly considered all of SSNVV's arguments cited in its pre- and past -hearing briefs. Stop Work Orders SWOs For its next point of contention, SSNW asks the Court to rely on an argument made exclusively in its Notice of Appeal. In that Notice, SSNW alleged that issuance of the August 11, 2005, SWO is inconsistent with the procedural requirements of the UDC. which permits sufficient time for voluntary compliance. See Findings at 11. In response, the HE concluded that "[t]his issue was settled by the Order Granting Preliminary Injunction entered by ,fudge Verser on October 17, 2005." Irl. at 27. SSNW challenges this conclusion, arguing that .fudge Verser merely preserved the SWO in question during the course of the appeals process. Opening Brief at 13-14 ("The Administrative Dearing Examiner is the proper forum to determine the validity of the Stop Work Order," (quoting Carder Granting Prelir ouny Injunction at 3)), The County does not dispute whether Judge Verser addressed the procedural challenge with respect to the August SWO. Rather, it argues that by failing to raise the issue in either its pre- or post -hearing briefs before the HE, SSNW waives the right to pursite the argument in front of this Court. See gelaet�ctlly WASH. R. App. P. 2.5. It further contends that because this procedural claire was not raised in pre- or post -hearing briefs, the HE reasonably, logically concluded that the matter had already been resolved. MEMORANDUM OPINION -5- JUDGE JAY B. ROOF Kitsap County Superior Court 614 Division Street MS -24 Port Orchard, WA 9S366 WAR 601 10/13/2006 07:52 FAX 2066827100 KARR_..TUTTLE_CAMPBELL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Z009/012 This Court concludes that proper procedure was followed. No extra time is a requited to allow a non-compliant party the opportunity to remedy the situation. It is Af11 simply a policy, but it is not a require€Hent. Nonetheless, there was substantial evidence in the record to support the HE's decision to uphold both SWOs. Unrebutted evidence was presented that SSNW constructed a classroom, latrine, and bunkhouse without first obtainitxg any of the proper permits, including building permits, septic permits, or electrical or fire safety permits. The construction and use of firing ranges was also pursued without permittinb, if required. Further, it has conceded that it knew various permits were required, but it chose to wait to apply until after -the -fact- Opening Brief at 7 n.4. Therefore, if the August 11 SWO was issued properly, the decision of the HE with respect to each of the three orders should be affrrmed- Ille-al Use The HE analyzed the Jefferson County Code {JCC) definitions of "nonconforming" and "illegal use" and concluded that the codes listed in the definitions refer to the Uniform Building Code (UBC). Findings at 23 ("Neither definition specifies land use codes or zoning—thus, a broader reference must be assumed.. ..The Uniform Building Code...arc [sic] "applicable codes."" (emphasis in original)). The HE then concluded that because Section 2.05 of the UBC states that it is unlawful to construct and maintain buildings without the proper permits, SNW's "activities" were not lawful and could not establish a lawful nonconforming use. M. at 24. in effect, because SSNW did not ensure that the buildings were properly permitted, all of SSNW's activities on the property were illegal and could not establish a nonconforming use prior to January 6, 1992, The Court finds that this analysis is an erroneous interpretation of the laNv within the meaning ofRCW 36,70C.130(1)(b). In particular, choosing to evaluate the legality of business operations through application of the UBC was not supported by case law. Further, the HE proceeded as though it was a necessary assumption, but it is not. First, in Stare v. Co€ njo ofPierce, the court addressed the legality of the defendant's equipment storage yard in an area zoned "Suburban Agricultural" and held that "[u]se of the property MEMORANDUM OPINION 6 JUDGE JAY B. ROOF Kitsap County Superior Court 614 Division Street NVS-24 Port Orchard, W.N 98 66 VA 1320 1%tggp 0 10/13/2006 07:53 PAX 2066827100 HARR_TUTTLE_CAMPBELL 9010/012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 oT13 20 as a storage yard for equipment and supplies was unconditionally permitted cinder the a` tl lll� O general use zone that was in effect." Made v. County of Pierce, 65 Wn. App. 614, 624,'�� P.2d 217 (1992)_ Additionally, in Lakeside Industries the court considered whether the defendant's asphalt batching business was a legal nonconforming use_ Jefferson County v. Lakeside Indus., 106 Wn. App. 380, 23 P.3d 542 (2601). Because no land use laws barred heavy industrial use of the property at the time the defendant began its business, the asphalt batching was not illegal. Id. at 387. Finally, in assessing the permissibility of a wrecking and junkyard, the court found that the business would not have been permitted under pre- existing land use law, County of Spokane v. Farmer, 5 Wn. App. 25, 26, 486 P.2d 296 (1971). In each of these cases, the courts addressed the legality of the property use with respect to existing land use law rather than various codes incidental to the land use. Thus, in the case at bar, operating a commercial enterprise on the Gunstone property was not prohibited under any land use laws in effect prior to the 1992 zoning code. Additionally, the HE stated that because no code type was specified, "a broader reference must be assumed." Findings at 23. However, when defining "nonconforming„ and "illegal use", the Jefferson County Code (JCQ distinguishes between structures and uses. See, e.g., JCC 18.20.260; 18.10.140; 18.10.090. Logically, thein, existing codes applicable to use are more relevantly considered when evaluating the legality of a nonconforming use, and existing codes applicable to structures are more relevant when evaluating the legality of a structure. As an aside, the County has a variety of mechanisms for addressing illegally constructed buildings, other than compelling lay"Mill land users to dismantle their businesses or leave the property entirety. In this case, although several of the structures on the property "Vere illegally constructed and maintained (specifically, the bunkhouse, latrine, and classroom), commercial use of the land was not illegal per se. That is, occupancy of illegal structures does not render all off SSNW's activities on the Gunstonc property illegal_ For example, physical occupancy of the classroom was illegal, but instruction itself may not be. Therefore, it was an error of law for the HE to conclude his analysis without fornnally -7- MEMORANDUM OPINION JUDGE JAY B_ ROOF Kitsap County Superior Court 614 Division Street MS -24 Port Ordiard, WA 98 366 10/13/2006 07:54 FAX 2066827100 SARR_TUITLE_CAMPBELL Z011/012 1 2 3 4 5 6 8 9 1{? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 1 si225 addressing ,whether SSNW's activities generally were sufficient to support a finding of nonconforming use prior to January, 6, 1992. iw 110" Legal Nonconforming 11se Because the HE ruled that all of SSNW's activities prior to January 6, 1992, were illegal, presiiniably any findings and conclusions he made regarding any lawful nonconforming cases were dicta. However, he does state that "the Findings of Fact and Conclusions of Laiv do not support establishment of a lawful nonconforming use" before or after 1992. Findings at 30. Consequently, this Court concludes that the HE ruled that no nonconforming use was established prior to 1992 because all of SSNW's use was illegal. Because this Court finds that not all of SSNW's activities were illegal, and because SSNW presented sufficient evidence that its operations on the property date back to 1988, a limited nonconforming use did exist prior to the 1992 zoning laws. This use is Iimited to the Nature and scope of the activities at that time and could not be unlawfully changed or expanded outside what is permitted in JCC 18.20.260. With respect to the HE's finding that numerous complaints about activity on the property were received from 2001 until the hearing in early 2006, SSNW's argument that no evidence supports this finding does have some merit. The log items noted to support this finding are only dated as early as 2005. Findings at 16. However, the HE also cites hearing testimony to support this contention. Moreover, this Court finds that to the extent any error was made in this finding, it vas handless. The HE sloes not rest his opinion oil this single bit of evidence: • Additionally, the operative date in question is January 6, 1996, not 2:001 generally. Similarly, the HE's finding with respect to whether work was perforinned on-site or off-site was supported by substantial evidence when viewed in light of the whole record. Thais, to the extent that these findings are considered when determining the scope of SSN, W's nonconforming use, they were supported by substantial evidence. Further, it is this Court's opinion that SSNW's use of the property today is not consistent with its use prior to Janua.n, 6, 1992, The evidence before the HE strongly suggests that the nature of SSNW's operations prior to January 6, 1992, simply involved MF,,MORANIDUN-1 OPlNioN -8- JUDGE .TAY l3. ROOF Kitsap County Superior C.ou.-t 614 Division Street MS -24 Part orchard: WA 98',66 10/13/2006 07:55 FAX 2066827100 1iARR_TUTTLE_CAMPBELL 1 2 3 4 S 7 8 9 to 11 12 17 1s 19 20 21 22 23 24 25 26 27 28 29 39 the installation and monitoring of security systems, armed transport, and limited firearZ tt' training of both its fill- and part-time employees. Also, there is little to no evidence in the record to provide the HE the basis to find that training of third -parties took place on the property prior to January 1992. Additionally, the HE's use of SSNW's payroll data prior to January 6, 1992, to determine the number of S,SNW employees was entirely appropriate, particularly in light of the fact that that data was the only evidence he was given that he found credible. As stated above, findings and conclusions with respect to credibility of the evidence and parties is entirely within the discretion of the HE, and his decision in this respect was not cleanly erroneous. Finally, the only credible evidence presented regarding the scope of the property used was the initial lease from the Gunstanes of twenty acres of the farm.. While testimony was provided suggesting some other, more nebulous quasi -lease existed purporting to allow SNW to use a far greater portion of the property, this agreement was not defined its any way to give the HE any basis to find that there was an expansion of land use beyond the original twenty acre lease. Therefore, it is hereby ORDERED that SSNW's appeal shall be REN ANDED for further proceedings consistent with this opinion solely -to determine the scope and nature of SSNW's nonconforming use as of January 6, 1991 Dated: October 6, 2006. MEMORANDUM OPINION -9- JUDGE JAY B. ROOF Kitsap County Superiur Court 614 Divisian Street M5-24 Port Orchard, WA 98366 T 13306 SON 1'.iUUNIYpI