Your freedom ends where my nose begins

Kitsap County v. Kitsap Rifle & Revolver Club, Nos. 43076-2-II & 43243-9-II (Wash. Ct. App. Oct. 28, 2014).

I featured a Washington Court of Appeals case about a “lawful nonconforming use” not too long ago. Here’s another one. The last case was about cars. This case is about another national pastime, guns. This case, however, does not end so well for the landowner. 

The Kitsap Rifle and Revolver Club owns a 72-acre parcel of land in Bremerton. It has used it as a shooting range for years—and so, in 1993, the County established the Club’s use of the property as a lawful nonconforming use. (See here for an explanation of “lawful nonconforming use.”) 

After 1993, though, the Club’s use of the property changed—a lot. Instead of seasonal or weekend use, the Club began allowing shooting from 7 am to 10 pm, seven days a week. Fully automatic weapons were regularly used. There was also apparently some cannon (yes, cannon) use. The neighbors began to complain.

Eventually, the County sued, asking the trial court to find that the Club had expanded its activities beyond its lawful nonconforming use and had failed to get the required permits. It also asked the court to declare the Club a public nuisance. After a bench trial, the court found that the Club had impermissibly expanded its activities, had failed to get the required permits, and had created a public nuisance.

The Court of Appeals concludes that the record amply supports almost all of the trial court’s findings. It agrees that the Club had expanded its activities beyond its nonconforming use, although it disagrees when it comes to the hours of operation: the Club’s longer hours of use are not unlawful in and of themselves. It agrees with the trial court on the public nuisance issue, too. Even if the Club’s decibel levels didn’t violate county or state statutes, the Court of Appeals says, the Club’s sustained noisemaking qualified it as a public nuisance under Washington law. And while shooting ranges are exempt from county and state noise-level regulations, that doesn’t automatically shield them from the law of nuisance. Even something that’s otherwise lawful can be a nuisance “based on the unreasonableness of the locality, manner of use, and circumstances of the case.” And here the nuisance came not from the absolute level of the noise but from its disruptiveness and duration. 

To remedy the public nuisance, the trial court entered an injunction limiting the shooting activities at the Club. The Court of Appeals approves of that remedy. But, as a remedy for the Club’s expansion of its lawful nonconforming use, the trial court had terminated that use. The effect of this remedy is to prohibit the Club from using the land as a shooting range at all. That’s not a lawful remedy, the Court of Appeals holds. And so it remands the case to the trial court to devise another remedy. As I read the opinion, the Court of Appeals suggests that an appropriate remedy would look a lot like what the trial court did to remedy the public nuisance.