HomeMy WebLinkAbout2010-07-13_memorandum opinionCOPY RECEIVED
KP,RP, TUT1 LE CAMPBELL
Jul_ 16 2010
By
RECEIVED FoP KITSAP (r),
JUL 1 5 !LW
DAVID W PETRSON
SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR KITSAP COUNTY
SECURITY SERVICES NOTHWEST, INC.,
Petitioner,
V.
JEFFERSON COUNTY,
No. 09-2-02106-8
MEMORANDUM OPINION
Respondent.
THIS MATTER comes before the Court on Petitioner's appeal under the Land Use
Protection Act RCW Ch. 36.70C (LUPA). Security Services Northwest (SSNW), the petitioner, is
represented by Dennis D. Reynolds. Jefferson County (County), the respondent, is represented by
Mark R. Johnsen.
SSNW seeks appeal of the remand decision of Jefferson County Hearing Examiner Stephen
Cousseaux (Hearing Examiner or Examiner), clarifying the scope of and limitations on SSNW's
nonconforming use of its property on Discovery Bay. SSNW bring the following issues on appeal
from the Hearing Examiner's Order on Remand: (1) use of two gun ranges; (2) use of the on-site
ranges by all of SSNW's employees for weapons training; (3) use of the ranges for third party
guests; (4) the specific limitation to 21 on-site employees engaged in security guard activity or
firearms training; (5) a limit on on-site shift workers to six employees per shift, and a limit of on-
site employees training to several times per year.
MEMORANDUM OPINION C JUDGE JAY B. ROOF
Kitsap County Superior Court
614 Division Street, MS-24
Port Orchard, WA 98366
(360) 337-7140
Legal Standard for Review
RCW 36.70C governs judicial review of land use decisions, and RCW 36.70C.130(1)
establishes the standards under which a superior court can grant relief.
An applicant for judicial review of a local land use decision under the Land Use Petition
Act must show that (1) the hearing examiner mistakenly interpreted the law, (2) there was
insufficient evidence to support the decision, or (3) the hearing examiner's decision was clearly
erroneous. First Pioneer Trading Co., Inc. v. Pierce County, 146 Wash.App. 606, 191 P.3d 928
(Div. 2,2008). Errors of law are reviewed de novo. City of University Place v. McGuire, 144 Wn.2d
640, 647, 30 P.3d 453 (2001). Further, "Wile 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.
RCW 36.70C.130 places the burden of proof on the petitioner to establish one of the six
specified criteria for reversal enumerated in RCW 36.70C.130(1).
Decision:
The Jefferson County Hearing Examiner upon remand denied SSNW certain components
of its nonconforming security services business and imposed limits in the number of on-site
employees engaged in security guard activities and weapons training on property leased by SSNW
unless it applied for and was granted a Conditional Use Permit. The Examiner determined the
activities he denied or constrained constituted a "change in use."
Substantial deference is given to the Examiner's interpretation and application of land use
regulations. This Court finds the Examiner's decision supported by substantial evidence, and his
application of the applicable law to the facts of this appeal appropriate. In fact, the Court finds the
Examiner's decision generous in its qualifications. The Court does not find SSNW has met its
burden of proving that the restrictions imposed by the Examiner on the number of gun ranges, the
users of the gun ranges and the number of on-site security employees was not supported by
substantial evidence. Further, the Court does not find SSNW has carried its burden of proving that
the Examiner's limitations on the intensification of SSNW's nonconforming use are clearly
erroneous.
MEMORANDUM OPINION JUDGE JAY B. ROOF
Kitsap County Superior Court
614 Division Street, MS-24
Port Orchard, WA 98366
(360) 337-7140
Therefore, it is hereby
ORDERED that the remand decision of Jefferson County Hearing Examiner Stephen
Cousseaux is AFFIRMED, and petitioner Security Services Northwest Inc.'s LUPA appeal is
DISMISSED.
Dated: This 1/) day of July, 2010.
MEMORANDUM OPINION JUDGE JAY B. ROOF
Kitsap County Superior Court
614 Division Street, MS-24
Port Orchard, WA 98366
(360) 337-7140
Michelle Dellino
Law Clerk
CERTIFICATE OF SERVICE
I, Michelle Dellino, certify under penalty of perjury under the laws of the State of
Washington that I am now and at all times herein mentioned, a resident of the State of
Washington, over the age of eighteen years, not a party to or interested in the above entitled
action, and competent to be a witness herein.
On July 14, 2010, I caused a copy of the foregoing document to be served in the
manner noted on the following:
Dennis D. Reynolds I Via U.S. Mail
Dennis D. Reynolds Law Office Via Fax:
200 Winslow Way West, Suite 380 Via Hand Delivery
Bainbridge Island, WA 98110 Via E-mail
Mark R. Johnsen I \-1-- Via U.S. Mail
Karr Tuttle Campbell Via Fax:
1201 Third Avenue, Suite 2900 Via Hand Delivery
Seattle, WA 98101 LII Via E-mail
DATED this 14th day of July, 2010, at Port Orchard, Washington.
MEMORANDUM OPINION JUDGE JAY B. ROOF
Kitsap County Superior Court
614 Division Street, MS-24
Port Orchard, WA 98366
(360) 337-7140
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