Kitsap County v. Kitsap Rifle And Revolver Club

Filed
Washington State
Court of Appeals
Division Two

December 1, 2020

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
KITSAP COUNTY, a political subdivision of No. 53898-9-II
the State of Washington,

Respondent,

v.

KITSAP RIFLE AND REVOLVER CLUB, a UNPUBLISHED OPINION
not-for-profit corporation registered in the State
of Washington, and JOHN DOES and JANE
DOES I-XX, inclusive,

Appellants.

and

IN THE MATTER OF NUISANCE AND
UNPERMITTED CONDITIONS LOCATED
at One 72-acre parcel identified by Kitsap
County Tax Parcel ID No. 362501-4-002-1006
with street address 4900 Seabeck Highway
NW, Bremerton, Washington.

MAXA, J. – Kitsap Rifle and Revolver Club (Club) appeals the trial court’s June 2019

order amending the court’s February 2016 supplemental judgment. In the June 2019 order, the

trial court ruled that certain activities at the Club’s shooting range were expansions of the Club’s

nonconforming use and prohibited those activities. This court had vacated the February 2016

supplemental judgment and remanded for the trial court to clarify that judgment. The trial court

had entered the February 2016 supplemental judgment after this court vacated the trial court’s

original judgment entered in 2012 following a lengthy trial.
No. 53898-9-II

In the June 2019 order, the trial court entered a declaratory judgment ruling that the

following activities constituted unlawful expansions of the Club’s nonconforming use: (1)

discharging cannons or causing exploding targets to explode, (2) discharging fully automatic

firearms and discharging semiautomatic rifles larger than nominal .30 caliber, and (3) conducting

more than two practical shooting competitions and 10 scheduled shooting practices per month.

The court entered a land use injunction prohibiting those activities.

The Club argues that the June 2019 order must be vacated and the case remanded because

the trial court (1) did not follow this court’s instructions on remand in that the prohibitions on

cannons and exploding targets, fully automatic weapons and semiautomatic rifles greater than

.30 caliber, and the number of practical shooting competitions and practices do not reflect that

only expansions of nonconforming use and not mere intensifications can be prohibited; (2) failed

to define important terms in the land use injunction that are vague or ambiguous; and (3) failed

to balance the interests of the parties and the public in issuing the land use injunction.

Underlying all these arguments is the Club’s contention that additional fact finding is required on

remand to properly tailor the appropriate remedies for the Club’s expansion of use.

We hold that (1) the trial court erred by concluding that more than two scheduled

practical shooting competitions per month and more than ten scheduled practical shooting

practices per month constituted an unlawful expansion of the Club’s nonconforming use but did

not err regarding the other declaratory judgment provisions, (2) the trial court erred by enjoining

discharging cannons without defining the term “cannons” but did not err in failing to define other

terms in the land use injunction, and (3) the balancing of the equities requirement for issuing an

injunction does not apply here.

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Accordingly, we vacate in part the declaratory judgment and land use injunction in the

trial court’s June 2019 order and remand with specific instructions for the trial court to (1)

determine the number of practical shooting competitions and practices held at the Club before

the expansion of use in 2005 or 2006 and to prohibit only those competitions and practices above

that number, and (2) define the term “cannons.” We affirm the remaining portions of the June

2019 order’s declaratory judgment and land use injunction.

FACTS

Background

The Club is a nonprofit corporation that has operated a shooting range in Bremerton since

its founding in 1926. In 1993, the Kitsap County Board of Commissioners notified the Club that

it considered the Club’s use of the shooting range to be a lawfully established nonconforming

use. Before 1993, club members and members of the general public used small caliber weapons

and shooting occurred only occasionally and for short periods of time. The use of automatic

weapons and rapid-fire shooting occurred infrequently.

In 2005 or 2006, the Club’s use of the shooting range changed. For profit companies

began using the shooting range for classes and for training military personnel. The range

frequently was used for scheduled practical shooting practices and competitions, resulting in

loud, rapid-fire shooting for several hours. The Club also allowed the use of exploding targets

and cannons. The use of explosive devices and higher caliber weaponry as well as practical

shooting practices and competitions increased the noise level of the Club’s shooting activities.

Shooting became clearly audible in neighborhoods near the range and frequently was loud,

disruptive, and long in duration.

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In 2011, the County filed a complaint for an injunction, declaratory judgment, and

nuisance abatement against the Club. The County alleged that the Club’s changes in use of the

shooting range were unlawful expansions of the Club’s nonconforming use.

After a lengthy bench trial, the trial court in 2012 issued detailed findings of fact and

conclusions of law. The court ruled that the Club had significantly changed and enlarged the

existing use through expanded hours, commercial and military use, and increased noise levels

because of explosive devises, higher caliber weapons greater than .30 caliber, and practical

shooting. The court concluded that these actions were expansions and not merely

intensifications of the nonconforming use. The court ruled that this expansion of use terminated

the nonconforming use status of the Club’s property.

The trial court issued a permanent land use injunction prohibiting the Club from

operating as a shooting range until the County issued a conditional use permit for the property.

The court also issued a permanent nuisance injunction prohibiting the use of fully automatic

firearms, “rifles of greater than nominal .30 caliber” and “exploding targets and cannons,” and

prohibiting operation of the range before 9:00 AM and after 7:00 PM. Clerk’s Papers (CP) at 114.

Kitsap Rifle I

The Club appealed the trial court’s declaratory judgment and permanent injunctions to

this court. Kitsap County v. Kitsap Rifle & Revolver Club (Kitsap Rifle I), 184 Wn. App. 252,

266, 337 P.3d 328 (2014). A commissioner of this court granted a stay of the trial court’s

injunction while the appeal was pending. Id.

In Kitsap Rifle I, the Club did not assign error to any of the trial court’s findings of fact

regarding the Club’s expansions of its nonconforming use. Id. at 267. Consequently, those

unchallenged findings became verities on appeal. Id.

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This court upheld the trial court’s conclusions that commercial and military use of the

shooting range and dramatically increased noise levels constituted impermissible expansions of

the Club’s nonconforming use.1 Id. at 273-74. However, the court concluded that termination of

the nonconforming use was not the proper remedy. Id. at 300-01. As a result, the court vacated

the trial court’s injunction prohibiting the Club from operating as a shooting range. Id. at 301.

The court stated that the appropriate remedy “must reflect the fact that some change in use –

‘intensification’ – is allowed and only ‘expansion’ is unlawful.” Id. The court remanded for the

trial court “to determine the appropriate remedies for the Club’s expansion of its nonconforming

use.” Id.

The court also affirmed the trial court’s conclusion that excessive noise and other

activities constituted a public nuisance. Id. at 261, 303. The court affirmed “the trial court’s

injunction limiting certain activities at the Club in order to abate the Club’s nuisance activities.”

Id. at 303-04.

Remand from Kitsap Rifle I

On remand from Kitsap Rifle I, the Club filed a motion to reopen the record. The Club

sought to introduce evidence of the Club’s operations during this court’s stay order, including a

study of the shooting range’s noise levels, arguing that this evidence was necessary for the trial

court to fashion an appropriate remedy. The trial court denied the Club’s motion to reopen the

record. The court stated that it did not believe that Kitsap Rifle I anticipated reopening the record

and that additional evidence was not necessary to determine the proper remedy.

1
This court disagreed with the trial court’s determination that the shooting range’s increased
operating hours constituted an expansion of use. 184 Wn. App. at 272.

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No. 53898-9-II

On February 5, 2016, the trial court issued an Order Supplementing Judgment on

Remand. The order replaced only the declaratory judgment provision and the land use injunction

precluding operation of the shooting range in the 2012 judgment. The court granted declaratory

judgment and ruled that “activities and uses of the Property consisting of military training uses;

commercial, for-profit uses; and uses increasing noise levels by allowing explosive devices,

higher caliber weaponry greater than .30 caliber and practical shooting, each constitute unlawful

expansions of and changes to the nonconforming use of the Property as a shooting range.” CP at

124. The order issued a “Land Use Injunction” prohibiting the following expanded uses:

1. Commercial, for-profit uses;
2. Military training uses;
3. Use of explosive devices including exploding targets;
4. Use of high caliber weaponry greater than .30 caliber; and
5. Practical shooting, uses, including organized competitions and practice sessions.

CP at 124. The supplemental order did not eliminate or revise the permanent nuisance injunction

contained in the 2012 judgment.

Kitsap Rifle II

The Club appealed the trial court’s ruling denying the motion to reopen the record, and

the court’s declaratory judgment and land use injunction. Kitsap County v. Kitsap Rifle (Kitsap

Rifle II), No. 48781-1-II, slip op. at 1 (Wash. Ct. App. Nov. 21, 2017) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2048781-1-II%20Unpublished%20Opinion.pdf.

In Kitsap Rifle II, this court affirmed the trial court’s decision to deny the Club’s motion

to reopen the record on remand. Id. at 10-13. However, the court vacated the portion of the trial

court’s injunction that prohibited the “use of explosive devices including exploding targets”; the

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“use of high caliber weaponry greater than .30 caliber”; and “practical shooting uses, including

organized competitions and practice.” Id. at 2 (internal quotations omitted).2

Regarding the use of explosive devices, the court concluded that this part of the trial

court’s injunction was overbroad and vague because it appeared to prohibit all “explosive

devices.” Id. at 19-21. The court noted that the trial court’s original permanent injunction

prohibited the use of only exploding targets and cannons. Id. at 20. The court stated that this

prohibition prohibited “more than necessary to remedy the increased noise levels at the shooting

range,” which constituted the impermissible expansion. Id. The court remanded with specific

instructions to the trial court (1) “to clarify which explosive devices were found to create an

impermissible expansion of the Club’s nonconforming use,” and (2) “to fashion a remedy that

implements its original permanent injunction prohibiting the use of ‘exploding targets and

cannons.’ ” Id. at 20, 21.

Regarding the use of high caliber weaponry, the court concluded that this part of the trial

court’s injunction was overbroad because it appeared to prohibit all weapons greater than .30

caliber, including pistols and shotguns. Id. at 21-23. The court noted that the trial court’s

original nuisance injunction prohibited only rifles that were greater than .30 caliber. Id. at 21. In

addition, the trial court made findings regarding increased noise levels only from fully and

semiautomatic weapons. Id. 21-22. And the trial court found that higher caliber weaponry had

caused an increase in noise levels only in the previous five to six years. Id. at 22. The court

remanded with specific instructions to the trial court (1) “to clarify which weapons are prohibited

because they create noise levels that constitute an impermissible expansion of the Club’s

2
The court also vacated the portion of the trial court’s injunction prohibiting commercial, for-
profit uses. Kitsap Rifle II, Slip Op. at 145. That provision is not at issue in this appeal. The
court held that the trial court did not err in prohibiting military training uses. Id.

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No. 53898-9-II

nonconforming use,” and (2) to fashion a remedy that “reflect[s] that only the more recent

increases in noise levels constitute an expansion of use.” Id. at 21, 22.

Regarding practical shooting uses, the court concluded that this part of the trial court’s

injunction was vague because it was not reasonably clear what constituted “practical shooting

uses” other than regularly scheduled practices and competitions. Id. at 24. In addition, the court

noted that the trial court’s original order found that activities including practical shooting

competitions had caused an increase in noise levels only in the previous five to six years. Id. at

23-24. The court remanded with specific instructions for the trial court (1) “to clarify whether

‘practical use’ includes only practical shooting practices and competitions or whether practical

use includes other conduct,” and (2) to fashion a remedy that “reflect[s] that only the more recent

increases in noise levels constitute an expansion of use.” Id. at 23, 24.

This court vacated in part the trial court’s land use injunction and remanded “with

instructions to comply with this court’s instructions regarding the permanent injunction.” Id. at

28.

Remand from Kitsap Rifle II

On remand from Kitsap Rifle II, the County in May 2019 filed a motion to enter an order

amending the February 2016 supplemental judgment. The County submitted a proposed order

with the motion.

The Club subsequently filed another motion to reopen the record. The Club sought to

introduce evidence of “the difference in the firearms used at the Club before and after 2006 that

constituted a sound expansion,” “the difference in practical shooting activities at the Club before

and after 2006 that constituted a sound expansion,” and “the relative interests of the parties and

the public before issuing a new injunction remedy.” CP at 364. The Club argued that this

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No. 53898-9-II

evidence was necessary for the trial court to resolve factual questions raised in Kitsap Rifle II and

that the answers to these questions could not be determined from the existing record.

The Club also filed a memorandum opposing the County’s motion. In the opposition, the

Club proposed definitions for various terms for the trial court to consider in refashioning the

terms of the injunction. In response, the County filed a revised proposed order. At oral

argument, counsel for both the County and the Club represented that the parties had agreed on

some of the terms of the proposed order.

The trial court did not rule on the Club’s motion to reopen the record. Instead, the court

opted to rule on the County’s motion to enter an amended order. The court reasoned that if it

entered an order on the County’s motion, the Club’s motion to reopen the record would be moot.

The trial judge noted that she would be retiring soon and that the case would be assigned

to a different judge if the court reopened the record. The court further stated:

[W]hen I went through your materials . . . I thought; how do I resurrect in my own
mind all of the evidence that came in in 2011, 2012? . . . There is just no way I
could do that. I confess, I throw myself on my sword, I couldn’t do it. And so
when I’m looking at, you know, what’s an explosive device and how big does it
have to be, and .30-caliber this, I’m at a loss. And everyone who potentially is my
successor is at a loss, right? I can’t imagine if somebody else is going to look at
my findings and then look at all the history of the case, both the . . . appellate
decisions but also the orders that have been entered subsequent, and be able to ferret
out that information.

Report of Proceedings (RP) at 7-8.

The trial court decided to enter the County’s revised proposed order amending the

February 2016 supplemental judgment. The court stated its reasoning on the record:

I appreciate that that will probably be Kitsap III from Pierce County, but I’m not
sure what else to do. I cannot set this for an evidentiary hearing, certainly not before
myself, and I appreciate that this is already on appeal per the Club’s notice of appeal
of my last decision, so I think it makes most sense that it go up to the Court of
Appeals altogether [sic]. And if the Court of Appeals believes there needs to be an

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evidentiary hearing, it’ll come back down for definition of those terms as the Club
is proposing.

RP at 31.

In June 2019, the trial court entered an Order Amending February 5, 2016 Order

Supplementing Judgment on Remand. The order replaced the declaratory judgment and land use

injunction provisions of the 2016 order. The revised declaratory judgment ruled that the

following uses at the shooting range were unlawful expansions of the Club’s nonconforming use:

1. military training uses;
2. the provision of firearms training courses sanctioned by the military and
provided by commercial, for-profit businesses;
3. discharging cannons or causing exploding targets to explode;
4. the discharge of fully automatic firearms or the discharge of semiautomatic
rifles larger than nominal .30 caliber; and
5. more than two scheduled practical shooting competitions per month and more
than ten scheduled practical shooting practices per month.

CP at 446. The order also issued a revised “Land Use Injunction” prohibiting those uses. CP at

446. The order did not define any of the terms used in the injunction.

The Club appeals the trial court’s June 2019 order.

ANALYSIS

A. LEGAL PRINCIPLES

1. Expansion of Nonconforming Use

A nonconforming use is one that lawfully existed before a change in regulation and may

continue even though the use does not comply with current regulations. Kitsap Rifle I, 184 Wn.

App. at 268. A nonconforming use may continue because requiring immediate cessation of use

would be unfair and potentially would violate due process. Id.

A nonconforming use may grow in volume or intensity over time. Id. A property owner

generally may continue a protected nonconforming use. Id. However, “there is no right to

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‘significantly change, alter, extend, or enlarge the existing use.’ ” Id. (quoting Rhod–A–Zalea &

35th, Inc. v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 (1998)). A nonconforming use

“ ‘may be intensified, but not expanded.’ ” Kitsap Rifle I, 184 Wn. App. at 268 (quoting City of

University Place v. McGuire, 144 Wn.2d 640, 649, 30 P.3d 453 (2001)). This court in Kitsap

Rifle I explained how to distinguish between intensification and expansion:

“When an increase in volume or intensity of use is of such magnitude as to effect
a fundamental change in a nonconforming use, courts may find the change to be
proscribed by the ordinance. Intensification is permissible, however, where the
nature and character of the use is unchanged and substantially the same facilities
are used. The test is whether the intensified use is different in kind from the
nonconforming use in existence when the zoning ordinance was adopted.”

Id. at 269 (quoting Keller v. City of Bellingham, 92 Wn.2d 726, 731, 600 P.2d 1276 (1979)).

2. Law of the Case

The law of the case doctrine binds this court to the prior appeal’s holdings. Humphrey

Indus., Ltd. v. Clay St. Assocs. LLC, 176 Wn.2d 662, 669, 295 P.3d 231 (2013). Questions that

were decided by the prior appellate decision, or that could have been decided if they had been

raised on appeal, “ ‘will not again be considered on a subsequent appeal if there is no substantial

change in the evidence.’ ” Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196

(1988) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965)).

In Kitsap Rifle I, this court affirmed the trial court’s conclusion that the increased noise

levels caused by explosive devices, higher caliber weaponry greater than .30 caliber, and

practical shooting was an expansion of the Club’s nonconforming use. 184 Wn. App. at 272-73.

Because this court affirmed this conclusion in Kitsap Rifle I, the trial court’s conclusion of law

regarding the increased noise levels is the law of the case, and we are bound by that conclusion.

Folsom, 111 Wn.2d at 263.

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However, in Kitsap Rifle II, this court vacated and remanded the trial court’s conclusions

of law regarding explosive devices, higher caliber weaponry, and practical shooting. Slip op. at

27-28. Accordingly, those conclusions did not become the law of the case and we are not bound

by them in this appeal.

3. Standard of Review

In reviewing a declaratory judgment, we review whether substantial evidence supports

the trial court’s findings of fact and, if so, whether the findings support the trial court’s

conclusions of law. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369

(2003). Substantial evidence is the “quantum of evidence sufficient to persuade a rational fair-

minded person the premise is true. Id. at 879. Unchallenged findings of fact are verities on

appeal. See Folsom, 111 Wn.2d at 263.

In Kitsap Rifle I, the Club did not assign error to any of the trial court’s findings of fact

regarding the Club’s expansions of its nonconforming use. 184 Wn. App. at 267. Consequently,

this court treated the unchallenged findings as verities on appeal. Id. Therefore, those findings

also are verities in this appeal. See Folsom, 111 Wn.2d at 263.

Whether an activity constitutes an expansion or an intensification is a question of law.

Kitsap Rifle I, 184 Wn. App. at 272. Therefore, we review de novo the trial court’s legal

conclusions on this issue. Elliott Bay Adjustment Co., Inc. v. Dacumos, 200 Wn. App. 208, 213,

401 P.3d 473 (2017).

We generally review the terms of an injunction for an abuse of discretion. Kitsap Rifle I,

184 Wn. App. at 297. “Trial courts have broad discretionary power to fashion injunctive relief to

fit the particular circumstances of the case before it.” Hoover v. Warner, 189 Wn. App. 509,

528, 358 P.3d 1174 (2015). But we review de novo questions of law regarding injunctions. See

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Kitsap Rifle I, 184 Wn. App. at 297. In addition, a trial court necessarily abuses its discretion if

it based its ruling on an erroneous view of the law. Tedford v. Guy, 13 Wn. App. 2d 1, 13, 462

P.3d 869 (2020).

The Club argues that if this court vacates the trial court’s declaratory judgment, the court

also must vacate the corresponding injunction. The County does not appear to dispute this

contention.

B. EXPANSION OF USE ANALYSIS

The Club argues that the trial court did not follow this court’s instructions in Kitsap Rifle

II on remand in that the prohibition on the use of cannons and exploding targets, the discharge of

fully automatic weapons and the discharge of semiautomatic rifles greater than .30 caliber, and

the number of practical shooting competitions and practices do not reflect that only expansions

of nonconforming use and not mere intensifications can be prohibited. We conclude that the trial

court did not err with regard to the first two prohibitions, but did err in limiting the Club’s

regularly scheduled practical shooting to two competitions and 10 practices per month.

1. Cannons and Exploding Targets

The June 2019 order found that “discharging cannons or causing exploding targets to

explode” constituted an unlawful expansion of the Club’s nonconforming use. CP at 446. The

Club argues that the June 2019 order did not clarify which explosive devises and what specific

use of the cannons and exploding targets created the expansion. We conclude that the Club

waived this argument.

In the trial court, the County’s attorney stated that “at least with respect to the order as it

pertains to exploding targets. That’s a compromised agreement.” RP at 25. The Club’s attorney

replied, “Yeah; and, you know, we don’t want to rehash things that are common in the two

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orders.” RP at 25. Later, the County’s attorney stated, “1(c) and 6(a)(3), discharge of cannons

or causing exploding targets to explode. That right there, that phrase, is agreed upon amongst

the parties. Now the definitions, that’s different, but that particular clause is agreed upon.” RP

at 26. The Club’s attorney did not object to that statement.

The Club argues only that it took the position that this language was acceptable only if

the court defined “cannons” and “exploding targets.” But that is a different argument (discussed

below); that argument does not address whether the use of cannons and exploding targets

constituted an expansion of use.

The trial court record shows that the Club agreed that the use of cannons and exploding

targets constituted an expansion of use. We decline to consider the Club’s argument that the trial

court erred in ruling that discharging cannons or causing exploding targets to explode constituted

an unlawful expansion of the Club’s nonconforming use.

2. Fully Automatic Firearms and Semiautomatic Rifles Greater than .30 Caliber

The trial court’s 2012 nuisance injunction prohibited the use of “fully automatic

firearms” and “rifles of greater than nominal .30 caliber.” CP at 114. The February 2016 order

prohibited the use of “high caliber weaponry greater than .30 caliber.” CP at 124. This court in

Kitsap Rifle II remanded with specific instructions to the trial court (1) “to clarify which

weapons are prohibited because they create noise levels that constitute an impermissible

expansion of the Club’s nonconforming use,” and (2) to fashion a remedy that “reflect[s] that

only the more recent increases in noise levels constitute an expansion of use.” Slip op. at 21, 22.

The June 2019 order found that “the discharge of fully automatic firearms or the

discharge of semiautomatic rifles greater than nominal .30 caliber” constituted an unlawful

expansion of the Club’s nonconforming use. CP at 446. The Club argues that the trial court

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reached this conclusion without any finding regarding the specific firearms or caliber of those

firearms that created the expansion of use. We disagree.

The trial court’s 2012 findings of fact support the conclusion that discharge of fully

automatic firearms and the discharge of semiautomatic rifles greater than nominal .30 caliber

constituted an unlawful expansion. The court found that the “[u]se of fully automatic weapons,

and constant firing of semi-automatic weapons led several witnesses to describe their everyday

lives as being exposed to the ‘sounds of war,’ ” which the trial court found persuasive. CP at

102 (emphasis added). By contrast, “[r]apid-fired shooting” and the “use of automatic weapons .

. . at the Property occurred infrequently in the early 1990[]s.” CP at 102.

In addition, this court in Kitsap Rifle I noted that the trial court had concluded that

increased noise levels caused by, among other things, “ ‘high caliber weaponry greater than [.]30

caliber’ ” constituted an expansion of the Club’s nonconforming use. 184 Wn. App. at 272. The

court held that these “activities did constitute an impermissible expansion of use.” Id. at 273. In

other words, the court affirmed the trial court’s conclusion of law that use of weapons greater

than .30 caliber and other activities constituted an expansion. As noted above, that holding is the

law of the case. Folsom, 111 Wn.2d at 263.

This court in Kitsap Rifle II interpreted Kitsap Rifle I as holding that “the noise created by

the use of fully and semiautomatic weapons created an impermissible noise expansion because it

contributed to the shooting range’s dramatically increased noise levels.” Kitsap Rifle II, slip op.

at 21-22. And the court in Kitsap Rifle II stated that “the trial court did not make any findings

regarding increased noise levels by high caliber weapons other than fully and semiautomatic

weapons.” Slip op. at 22 (emphasis added).

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The Club appears to argue that the trial court should have engaged in additional fact

finding to clarify which fully and semiautomatic weapons increased the noise levels beginning in

around 2006. But because the February 2016 order too broadly prohibited the use of all weapons

greater than .30 caliber, this court in Kitsap Rifle II required clarification only as to which

weapons were found to create an impermissible expansion. Kitsap Rifle II, slip op. at 21. The

June 2019 order provided this clarification based on the 2012 findings, limiting the expansion to

the discharge of fully automatic weapons and the discharge of semiautomatic rifles greater than

.30 caliber. This court in Kitsap Rifle II did not request clarification of which specific types of

fully automatic firearms and semiautomatic rifles caused the expansion. Therefore, we decline

to engage in the fact-finding requested by the Club.

We conclude that the trial court did not err in ruling that the Club’s discharge of fully

automatic firearms and the discharge of semiautomatic rifles greater than nominal .30 caliber

constituted an unlawful expansion of the Club’s nonconforming use and in prohibiting those

activities.

3. Practical Shooting Competitions and Practices

In 2012, the trial court entered a conclusion of law that increased noise levels caused by

(among other things) practical shooting constituted an expansion of use. The February 2016

order prohibited “[p]ractical shooting, [sic] uses, including organized competitions and practice

sessions.” CP at 124. This court in Kitsap Rifle II remanded with specific instructions to the

trial court (1) “to clarify whether ‘practical use’ includes only practical shooting practices and

competitions or whether practical use includes other conduct,” and (2) to fashion a remedy that

“reflect[s] only the more recent increases in noise levels constitute an expansion of use.” Slip

op. at 23, 24.

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The June 2019 order concluded that “more than two scheduled practical shooting

competitions per month and more than ten scheduled practical shooting practices per month”

constituted an unlawful expansion of the Club’s nonconforming use. CP at 446. The Club

argues that the trial court reached this conclusion without any findings regarding the number of

practical shooting competitions and practices that occurred before the expansion. We agree with

the Club.3

The trial court found in 2012 that the shooting range “is frequently used for regularly

scheduled practical shooting practices and competitions, which use the shooting bays for rapid-

fire shooting in multiple directions.” CP at 99. The court also found that “[r]apid-fire shooting

. . . occurred infrequently in the early 1990s.” CP at 102. But the court’s 2012 findings of fact

did not specifically address the number of practical shooting competitions and practices that

occurred before or after the expansion.

The County relies on evidence presented at the 2012 trial regarding the number of

activities at the shooting range. The County claims that this evidence shows that in the 2004-

2006 time frame there were less than the 12 practical shooting competitions and practices

allowed in the 2019 order.

However, the trial court made no findings of fact in 2012 regarding this evidence. In

addition, the trial court’s June 2019 order could not have been based on this evidence because

the trial court admitted that it did not remember the trial evidence. Therefore, the County cannot

3
The trial court did comply with the first instruction in Kitsap Rifle II by clarifying that only
scheduled practical shooting competitions and practices were limited.

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rely on this evidence.4 In any event, the Club claims that the evidence at trial showed that there

may have been as many as 18 scheduled events in a month before the expansion in 2005 or 2006.

We conclude that the trial court erred in concluding that more than two scheduled

practical shooting competitions per month and more than 10 scheduled practical shooting

practices per month constituted an unlawful expansion of the Club’s nonconforming use because

it does not reflect only the more recent noise levels, as instructed by this court in Kitsap Rifle II.

4. Summary

We vacate the part of the trial court’s declaratory judgment ruling that “more than two

scheduled practical shooting competitions per month and more than ten scheduled practical

shooting practices per month,” CP at 446, constituted an unlawful expansion of the Club’s

nonconforming use and the corresponding injunction provision. We remand for the trial court to

conduct additional fact finding on the number of practical shooting competitions and practices

held at the Club before the expansion of the Club’s nonconforming use in 2005 or 2006. The

trial court should prohibit only practical shooting competitions and practices above that number.

We affirm the other portions of the declaratory judgment.

C. UNDEFINED TERMS IN 2019 INJUNCTION

The Club argues that portions of the injunction in the June 2019 order must be vacated

because the trial court should have defined the terms “cannons,” “exploding targets,” “rifles

greater than nominal .30 caliber,” and “practical shooting.” We conclude that the trial court’s

4
In addition, the witness who presented this evidence testified that his summaries were
incomplete and that there were gaps in his data collection.

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No. 53898-9-II

injunction enjoining the discharge of “cannons” must be vacated, but not the other portions of the

injunction.5

1. Legal Principles

CR 65(d) sets forth the form and scope of an injunction and provides that “[e]very order

granting an injunction . . . shall set forth the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail, and not by reference to the complaint or other document, the

act or acts sought to be restrained.” Because Federal Rule of Civil Procedure (FRCP) 65(d) is

identical to CR 65(d), we may look to cases interpreting the federal rule for guidance. All Star

Gas, Inc. of Wash. v. Bechard, 100 Wn. App. 732, 736-37, 998 P.2d 367 (2000).

FRCP 65(d) “ ‘was designed to prevent uncertainty and confusion on the part of those

faced with injunctive orders, and to avoid the possible founding of a contempt citation on a

decree too vague to be understood.’ ” Fortyune v. Am. Multi–Cinema, Inc., 364 F.3d 1075, 1087

(9th Cir. 2004) (quoting Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 L. Ed. 2d 661

(1974)). As a result, FRCP 65(d) requires that the language of an injunction be reasonably clear

so that an ordinary person will know precisely what action is prohibited. United States v.

Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). Injunctions do not violate the requirements of

FRCP 65(d) “unless they are so vague that they have no reasonably specific meaning.” Id.

2. “Cannons” and “Exploding Targets”

The Club argues that the trial court’s June 2019 order should have defined the terms

“cannons” and “exploding targets” because they are vague and ambiguous. We agree with

regard to “cannons.”

5
Initially, the County argues that we decline to consider the Club’s arguments because the Club
did not challenge the meaning of these terms in the first two appeals. We disagree. The meaning
of these terms was not at issue in the prior appeals.

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No. 53898-9-II

In the trial court, the Club proposed definitions of these terms. The County does not

explain what it believes the term “cannons” means. The term could refer to any number of

things; there are many different types of “cannons.” It is unclear what type of cannon the trial

court was referencing. The County notes only that the trial court found in 2012 that the use of

cannons and exploding targets caused “loud ‘booming’ sounds in residential neighborhoods

within two miles of the property, and cause houses to shake.” CP at 103. Therefore, we remand

this part of the injunction for the trial court to define the operative term “cannons.”

On the other hand, term “exploding target” has a generally accepted meaning based on

the trial court’s finding in 2012 that exploding targets caused loud, booming sounds in nearby

residential neighborhoods. An exploding target should be understood to be a target the triggers

an explosive device within the target that results in a loud noise.

3. “Rifles Greater than Nominal .30 Caliber”

The Club argues that the trial court’s June 2019 order should have defined the terms

“rifle” and “nominal .30 caliber” because their meaning is uncertain. We disagree.

In the trial court, the Club proposed definitions of these terms. The County does not

explain what it believes “rifle” and “nominal .30 caliber” mean. However, we believe that these

terms have generally accepted meanings, particularly among gun owners and users. Therefore,

the prohibition of rifles greater than .30 caliber in the injunction is reasonably clear. We hold

that the trial court did not err in failing to define that phrase.

4. “Practical Shooting”

The Club argues that although the trial court defined “practical shooting” in the 2012

judgment, it is unclear whether the court intended that definition to apply to the June 2019 order.

And the Club claims that the terms within that definition themselves are unclear. We disagree.

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No. 53898-9-II

The 2012 judgment stated that practical shooting competitions and practices “use the

shooting bays for rapid-fire shooting in multiple directions.” CP at 99. The Club acknowledges

that this description constitutes a definition of “practical shooting.” And in the trial court, the

Club proposed adoption of this definition.

We believe that the trial court’s 2012 finding of fact provides a reasonable definition of

“practical shooting.” In addition, the terms within that definition have generally accepted

meanings that are reasonably clear. Therefore, we hold that the trial court did not err in failing to

define that term.

D. BALANCING THE EQUITIES

The Club argues that the trial court erred by issuing the land use injunction without

balancing the relative interests of the parties and the public. We disagree.

In general, issuing an injunction may involve an equitable balancing of the relative

interests of the parties and the interests of the public. Tyler Pipe Indus., Inc. v. Dep’t of Revenue,

96 Wn.2d 785, 792, 638 P.2d 1213 (1982). However, the issuance of the land use injunction was

not at issue on remand from Kitsap Rifle II. This court remanded for the trial court to revise the

language of the injunction. Therefore, we conclude that the balancing of the equities

requirement does not apply here.

CONCLUSION

We hold that the trial court erred by concluding that “more than two scheduled practical

shooting competitions per month and more than ten scheduled practical shooting practices per

month” constituted an unlawful expansion of the Club’s nonconforming use. In addition, we

conclude that the trial court erred by enjoining the discharge of “cannons” without defining that

term.

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Accordingly, we vacate in part the declaratory judgment and land use injunction in the

trial court’s 2019 order and remand with specific instructions for the trial court to (1) determine

the number of practical shooting competitions and practices held at the Club before the

expansion of use in 2005 or 2006 and to prohibit only those competitions and practices above

that number, and (2) define the terms “cannons.” We affirm the remaining portions of the June

2019 order’s declaratory judgment and land use injunction.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

MAXA, J.

We concur:

WORSWICK, P.J.

MELNICK, J.

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